The principle of non-discrimination

Equality is a deep-rooted principle in human morality and protected by the principle of non-discrimination, which is a reoccurring and dominant principle in multiple international human rights law treaties. We all have the right to be equally treated, regardless of our race, colour, sex, nationality, language religion or ethnical, national or social origin (Article 1 Convention on the Elimination of All Forms of Racial Discrimination (CERD)). 

Discrimination describes the unjust or prejudicial treatment of an individual or a group of individuals based on who they are or who they are suspected to be. Treatment can be an action, a decision, a rule or law that has an effect, such as distinction, exclusion or restriction, on a person or group of people (Article 1 CERD). As a result of such treatment, the discriminated person is unable to enjoy his/her human rights or other legal rights or experiences a significant disadvantage in the enjoyment of such rights. 

Discrimination can be both direct and indirect. On the one hand, direct discrimination describes the distinct differential treatment of a person compared to another person in the same situation to his/her disadvantage based on their characteristics. On the other hand, discrimination can be indirect, when an equal treatment or so-called neutral treatment affects different groups of people significantly different. 

The principle of non-discrimination in the UN Convention on the Rights of the Child (UNCRC)

Despite the well-established principle of non-discrimination in International Law, less attention has been paid to the ways in which a child experiences discrimination. Beside the group-related discrimination, so-called age discrimination and the discrimination grounds included in the CRC, children face a variety of child-specific discrimination grounds that are not explicitly included in the provision of the CRC.

The flexible nature of the CRC allows it to include recent developments to build a non-exhaustive and indicative list of child-specific discrimination grounds that the Committee on the Rights of the Child (CRC Committee) develops through its General Comments and Concluding Observations (Besson, 2005). Examples for such are the grounds of sexual orientation, gender identity (Committee on the Rights of the Child, 2019) and HIV/AIDS (Committee on the Rights of the Child, 2003). 

Children also have a right to non-discrimination. Therefore, all children are equally entitled to enjoy effective protection and the rights set-forth in the CRC without any exception. Article 2 (1) of the CRC explicitly prohibits discrimination of a child based on “the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.” Additionally, “the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members” is added as a prohibited discrimination ground as a positive obligation – an obligation to take measures to prevent and ensure in Article 2 (1).  

The basis to achieve substantive equal treatment and equality for children is the necessity to view on the opportunity of every child to enjoy their rights and development fully and without disadvantage compared to other children. This requires that children are especially protect from indirect discrimination as every child has their specific and unique needs that must be taken into consideration. 

The prevailing forms of child discrimination include discrimination based on gender, the social status, race and disability or another health status leading to multiple issues such as exclusion from education, development opportunities and from the community as well as abuse, physical and sexual violence. 

Written by Alexander Weihrauch

Last updated on 2 March 2021

Bibliography:

1969 International Convention on the Elimination of All Forms of Racial Discrimination

Besson, Samantha (2005), The Principle of Non-Discrimination in the Convention on the Rights of the Child, The International Journal of Children s Rights. 13: 433-461. 

Committee on the Rights of the Child (17 March 2003), General comment No. 3 on HIV/AIDS and the Rights of the Child, CRC/GC/2003/3, retrieved from reworld.org.

Committee on the Rights of the Child (28 February 2019), Concluding observations on the combined fifth and sixth periodic reports of Italy, CRC/C/ITA/CO/5-6, retrieved from hdocstore.ohchr.org.