Citation: 9 Hum. Rts. Q.

250 1987

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 HUMAN RIGHTS QUARTERLY

Working. Paper on Article 2(2) and

Article 3 of the International Covenant on
Economic, Social and Cultural Rights

Yvonne Klerk *

I. INTRODUCTION

Nondiscrimination principles occupy a special place in international in-

struments. The phrase "without distinction as to race, sex, language, or
religion" appears in Articles 1(3), 13(1)(b), 55(c), and 76(c) of the United Na-
tions Charter. The International Bill of Rights instruments contain general
nondiscrimination provisions including Articles 2 and 7 of the Universal
Declaration of Human Rights,1 Articles 2(1) and 26 of the International Cove-
nant on Civil and Political Rights (ICCPR), and Article 2 of the International
Covenant on Economic, Social and Cultural Rights (ICESCR). Regional in-
struments also contain general nondiscrimination provisions, such as the
provisions in Article 14 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms and Article 1(1) of the American
Convention on Human Rights.2
All these instruments contain a wide variety of human rights. Some in-
ternational legal instruments, however, deal exclusively with nondiscrimina-
tion. These may be categorized according to whether they forbid discrimina-
tion in a specific field or forbid discrimination upon specific grounds.

This paper was prepared by the author in consultation with the Research and Study Group
on Human Rights of the Faculty of Law of the University of Limburg.
1. G.A. Res. 217A(IlI), U.N. Doc. A/810 (1948). The Declaration is reproduced in full at the
back cover of this journal.
2. The Articles from the various instruments mentioned in this working paper are excerpted
and included in the Appendix to this paper. The International Covenant on Economic,
Social and Cultural Rights is reproduced in full infra at page 274.
Human Rights Quarterly 9 (1987) 250-273 0 1987 by The Johns Hopkins University Press
1987 Working Paper on Articles 2(2) and 3

Examples of the former are the Convention Concerning Discrimination in

Respect of Employment and Occupation (ILO Convention No. 111) and the
UNESCO Convention Against Discrimination in Education; examples of the
latter are the Convention on the Elimination of All Forms of Discrimination
Against Women and the Convention on the Elimination of All Forms of
Racial Discrimination.
Similarly, general international instruments contain provisions that for-
bid discrimination either in a specific field or on a specific ground. Article 3
of both the ICCPR and the ICESCR, for example, address the equal rights of
men and women; that is, both forbid discrimination on the grounds of sex.
Other.examples in the ICESCR include Article 7(a)(i), forbidding discrimina-
tion in the field of wages and particularly on the grounds of sex; Article 7(c),
forbidding discrimination in the field of employment promotions; and Article
10(3), forbidding discrimination in the field of child protection and assistance
3
and particularly on the grounds of parentage.
This working paper focuses on the scope of two nondiscrimination pro-
visions in the ICESCR, Articles 2(2) and 3, and on the obligations of states
parties to the Covenant.

II. THE SCOPE OF NONDISCRIMINATION

ICESCR Article 2(2) differs from Article 2 of the Universal Declaration and
ICCPR Article 2(1) in two respects. First, the latter two instruments use the
word "distinction," while ICESCR Article 2(2) uses the word "discrimination."
Second, the enumeration of grounds of discrimination in the latter articles is
preceded by the words "such as," while in Article 2(2) the words "as to" are
used. At first glance, therefore, it seems that the enumeration in ICESCR Arti-
cle 2(2) has an exhaustive character, while the enumeration in the other ar-
ticles may be more illustrative.

A. The Meaning of Discrimination

1. Discrimination vs. distinction

The Draft Covenant on Economic, Social and Cultural Rights submitted

to the General Assembly (Third Committee) by the Commission on Human
Rights contained the word "distinction" in Article 2(2), like Article 2 of the
Universal Declaration. However, in adopting an amendment proposed by

3. Since the Declaration on Religious Intolerance (which forbids discrimination in a specific

field and on a specific ground) is not a binding convention, it will not be considered in this
paper.
 HUMAN RIGHTS QUARTERLY Vol. 9

Argentina, Italy, and Mexico (the Three-Power Amendment), 4 the Third

Committee replaced the word "distinction" with the word "discrimination." s
As argued by several speakers during the debates, 6 the main reason for the
substitution was that some "distinctions" might be justified, such as preferen-
tial treatment for certain backward or underprivileged groups within a coun-
try. According to most representatives, what was actually meant was arbi-
trary 7 distinction and the word "discrimination" conveyed this idea better.
One year after the adoption of Article 2(2) of the ICESCR by the Third
Committee, Article 2(1) of the ICCPR was adopted. Surprisingly, here the
word "distinction" was not replaced by the word "discrimination." The Italian
representative again suggested that Article 2(I) should use the word
"discrimination," but the composition of delegations in the Committee had
largely changed and most delegates preferred the word "distinction." The
Italian representative did not insist on his point, apparently in the belief that
a drafting committee would be established to harmonize the language of the
draft Covenants after their adoption. Such a committee was never estab-
lished, however. Nevertheless, it is clear from the debates that not every
distinction would be forbidden.8 Therefore, the difference in words between
the ICESCR and the ICCPR does not imply a difference in substance. This
view seems also to be supported by the opinion of the Committee of Experts
on Human Rights of the Council of Europe which said the difference in
wording between Article 2(0) of the ICCPR and Article 14 of the European
Convention on Human Rights"does not involve any substantial difference." 9
By way of comparison, when the European Court of Human Rights was
confronted with a similar problem because the English and French versions
of Article 14 of the European Convention on Human Rights use different
terms, it held:
In spite of the very general wording of the French version ("sans distinction
aucune"), Article 14 does not forbid every difference in treatment in the exercise
of the rights and freedoms recognised. This version must be read in the light of
the more restrictive text of the English version ("without discrimination"). In addi-

4. U.N. Doc. AIC.31L.10281Rev.2 (1962).

5. 17 U.N. GAOR C.3 (1206th mtg.) para. 40, U.N. Doc. A/C.3/SR.1206 (1962).
6. 17 U.N. GAOR C.3 (1204th mtg.) para. 8, U.N. Doc. A/C.3/SR.1204 (1962); 17 U.N.
GAOR C.3 (1203d mtg.) para. 18, U.N. Doc. A/C.3ISR.1203 (1962); 17 U.N. GAOR C.3
(1185th mtg.) para. 15, U.N. Doc. A/C.3/SR.1 185 (1962); 17 U.N. GAOR C.3 (1183d
mtg.) para. 16, U.N. Doc. AIC.3/SR.1183 (1962).
7. Vierdag prefers to avoid the use of the word "arbitrary." Arbitrariness, according to him, is
generally understood as a matter of whim and caprice. However, practices regarded as
discrimination are often by no means unpredictable and hardly ever a result of whim or
caprice. E.W. Vierdag, The Concept of Discrimination in International Law (1973).
8. 18 U.N. GAOR C.3 (1258th mtg.) paras. 244-245, U.N. Doc. A/C.3/SR.1258 (1963); 18
U.N. GAOR C.3 (1259th mtg.) para. 249, U.N. Doc. A/C.3/SR.1259 (1963).
9. Report of the Committee of Experts on Human Rights to the Committee of Ministers on the
problems arising from the coexistence of the United Nations Covenants on Human Rights
and the European Convention on Human Rights, Doc. H.(70)7, at 17.
 Working Paper on Articles 2(2) and 3

tion, and in particular, one would reach absurd results were one to give Article 14
an interpretation as wide as that which the French version seems to imply. One
would, in effect, be led to judge as contrary to the Convention every one of the
many legal or administrative provisions which do not secure to everyone com-
plete equality of treatment in the enjoyment of the rights and freedoms recog-
nised. The competent national authorities are frequently confronted with situ-
ations and problems which, on account of difference inherent therein, call for
different legal solutions; moreover, certain legal inequalities tend only to correct
factual inequalities. The extensive interpretation mentioned above cannot conse-
quently be accepted. 10

2. Definition of Discrimination in International Legal Instruments

The instruments that deal exclusively with discrimination include

specific definitions of the concept. Thus, according to Article 1(1) of ILO
Convention No. 111, "discrimination" includes:
a. Any distinction, exclusion or preference made on the basis of race, colour, sex,
religion, political opinion, national extraction or social origin, which has the ef-
fect of nullifying or impairing equality of opportunity or treatment in employ-
ment or occupation;
b. Such other distinction, exclusion or preference which has the effect of nullify-
ing or impairing equality of opportunity or treatment in employment or oc-
cupation as may be determined by the Member concerned after consultation
with representative employers' and workers' organisations, where such exist,
and with other appropriate bodies....
Article 1(1) of the Convention Against Discrimination in Education pro-
vides that "discrimination"
includes any distinction, exclusion, limitation or preference which, being based
on race, colour, sex, language, religion, political or other opinion, national or
social origin, economic condition or birth, has the purpose or effect of nullifying
or impairing equality of treatment in education ....
Article 1() of the International Convention on the Elimination of All
Forms of Racial Discrimination (CERD) defines "racial discrimination" as
any distinction, exclusion, restriction or preference based on race, colour, de-
scent, or national or ethnic origin which has the purpose or effect of nullifying or
impairing the recognition, enjoyment or exercise, on an equal footing, of human
rights and fundamental freedoms in the political, economic, social, cultural or
any other field of public life.
Finally, Article 1 of the Convention on the Elimination of All Forms of

10. Case "Relating to certain aspects of the laws on the use of languages in education in
Belgium," 1968 Y.B. Eur. Con,. on Hum. Rts. 832, 864 (Eur. Ct. H.R.) (merits) [hereinafter
Belgian Linguistic Case].
 HUMAN RIGHTS QUARTERLY Vol. 9

Discrimination Against Women (CEDAW) defines "discrimination against

women" as
any distinction, exclusion or restriction made on the basis of sex which has the ef-
fect or purpose of impairing or nullifying the recognition, enjoyment or exercise
by women, irrespective of their marital status, on a basis of equality of men and
women, of human rights and fundamental freedoms in the political, economic,
social, cultural, civil or any other field.
It is clear that the field in which discrimination can take place is more
narrowly defined in ILO Convention No. 111 and the Convention Against
Discrimination in Education than in the CERD and the CEDAW. There is also
a difference between the latter two instruments: where the CERD speaks of
"inthe political, economic, social, cultural or any other field of public life,"
the CEDAW reads only "in the political, economic, social, cultural, civil or
any other field." Thus, the scope of the CEDAW is broader, because it seems
to cover both public and private life.
A second striking feature is that, according to the definitions in the Con-
vention Against Discrimination in Education, the CERD, and the CEDAW, it
is not necessary that there be a purpose to discriminate. That is, also the ef-
fect of nullifying or impairing equality of treatment qualifies as "discrimina-
tion," often called "indirect discrimination."
According to the above definitions any distinction, exclusion,
preference, limitation, or restriction based on a certain ground or in a
specific field creates discrimination. It does not seem possible, therefore,
that a justification for a distinction can be found. Only ILO Convention No.
111 contains an exception, as Article 1(2) provides:
Any distinction, exclusion or preference in respect of a particular job based on
the inherent requirements thereof shall not be deemed to be discrimination.
Under this Article, a distinction can be justified and accordingly creates no
discrimination if the particular job requires this distinction.

3. Definition of Discrimination in International Case Law

The Human Rights Committee (HRC) so far has decided only once that
there was a violation of Articles 2(1) and 3 of the ICCPR. 11This case involved
the Mauritian Immigration Act and Deportation Act, which placed restric-
tions upon entry and residence of alien husbands of Mauritian women but
not of alien women married to Mauritian husbands. The Committee did not
give a clear definition of "distinction" or "discrimination" but reasoned:

11. HRC Res. 9/35 (Mauritian women), 36 U.N. GAOR Supp. (No. 40) at 134, U.N. Doc.
A/36/40 (1981). The HRC also found violations of ICCPR Articles 17, 23(1), and 26.
1987 Working Paper on Articles 2(2) and 3

Here it is sufficient... to note that in the present position an adverse distinction

based on sex is made, affecting the alleged victims in their enjoyment of2one of
their rights. No sufficient justification for this difference has been given.1
The European Court of Human Rights (ECHR) to date has also not de-
fined "discrimination." In the Belgian Linguistic Case,1 3 however, it developed
some criteria to determine whether there is a violation of Article 14 of the
European Convention on Human Rights. According to this judgment,
discrimination in the sense of Article 14 exists if:
a. the facts found disclose a differential treatment;
b. the distinction does not have a legitimate aim, i.e. it has no objective and
reasonable justification having regard to the aim and effects of the measure
under consideration; and
c. there is no reasonable proportionality
14
between the means employed and the
aim sought to be realised.
Both bodies appear to take the view that not every distinction amounts
to discrimination but only those distinctions for which no "sufficient" (HRC)
or "objective and reasonable" (ECHR) justification can be given. The Euro-
pean Court adds to this criterion the absence of reasonable proportionality
between the means employed and the aim sought to be realized.
The approach of the European Court of Human Rights appears to be a
fruitful one. In line with the criteria developed by the European Court we
would therefore propose that discrimination in Article 2(2) is a distinction for
which no objective and reasonable justification can be found or where no
reasonable proportionality exists between the means employed and the aim
sought to be realized. Following the definitions in the international legal in-
struments mentioned above, it is suggested that in order for a distinction to
amount to a discrimination it should have the purpose or effect of nullifying
or impairing equality of treatment.

12. 36 U.N. GAOR Supp. (No. 40), para. 9.2, U.N. Doc. A/36140 (1981) (emphasis added).
13. Belgian Linguistic Case, 1968 Y.B. Eur. Cony. on Hum. Rts. 832.
14. The European Commission on Human Rights thus formulated the criteria developed by
the Court schematically in a report of 6 July 1976 in the case of Geillustreerde Pers N.V., 8
D.R. 5, 14-15 (1977). Van Dijk and van Hoof point out that an objective and reasonable
justification for differences in treatment is usually based upon the public interest. They
continue:
The question may, however, be asked whether such an automatic subordination of the individual in-
terest to the public interest, without a relation being created in all cases between the unequal treat-
ment and the existing inequality which the authorities wanted to abolish by this treatment, is really
supported by the text of Article 14. After all, there the individual interest of enjoyment of the rights
and freedoms without discrimination isprominent and no restrictions are mentioned with reference
to the public interest, as this in fact has been done in various other provisions of the Convention. At
all events this case-law has deprived Article 14, to which in this same case-law such a wide scope has
been assigned, of a good deal of its importance, since only those inequalities for which no objective
and reasonable justification can be given are considered to conflict with it.
P. van Dijk and G.J.H. van Hoof, Theory and Practice of the European Convention on
Human Rights 396 (1984) (footnote omitted).
 HUMAN RIGHTS QUARTERLY Vol. 9

B. Grounds of Discrimination

1. Exhaustive or Illustrative

As noted above, ICESCR Article 2(2) uses the words "as to" while Article
2 of the Universal Declaration and ICCPR Article 2(1) use the words "such
as." This difference is even more striking when looking at the draft Article
2(2) submitted by the Commission on Human Rights: there too the words
"such as" were employed. This raisesthe question whether the enumeration
of the types of discrimination in Article 2(2) is meant to be exhaustive.
The words "such as" in draft Article 2(2) were replaced by "as to" by the
Third Committee's adoption of the Three-Power Amendment. 15 While much
attention was paid to "discrimination" versus "distinction," the replacement
of "such as" by "as to" took place without any discussion on the desirability
for such a substitution. On the other hand, both from the wording and from
the travaux pr6paratoiresit becomes quite clear that the enumeration in Arti-
cle 2 of the Universal Declaration was meant to be illustrative. 16 Since no
discussions took place on the character of the enumeration in Article 2(2) of
the ICESCR, one may assume that the same view can be adopted for this Ar-
ticle.
The illustrative character of the enumeration may also follow from the
words "other status." During the discussions in the Commission on Human
Rights on Article 24 (later 26) of the ICCPR, there were some proposals to
add "association with minority groups," "economic or other opinion," and
"educational attainment" to the enumeration. These additions were thought
to be unnecessary, however, because they were deemed to be adequately
covered by the expressions "discrimination on any ground" and "other
status." 1 7 Thus it appears that despite the use of the words "as to," the list of
grounds of discrimination in that Article is intended to be illustrative only.

2. Can Discrimination on Different Grounds be 'Ranked'?

Under the terms of the ICESCR, states parties may, in certain cir-
cumstances, eliminate discriminatory situations gradually. In such cir-
cumstances, not all existing discriminatory situations can be eliminated im-
mediately; rather, a policy of progressively eliminating such situations must
be initiated. This implies that states parties may have to set priorities. The
question now is whether international law in general, or the ICESCR in par-
ticular, prescribes the order of these priorities. Specifically, the question

15. Regarding adoption of this amendment, see supra text accompanying notes 4-7.
16. A. Verdoodt, Naissance et Signification de la Dclaration Universelle des Droits de
I'Homme 95 (1964). See also id. at 88-90 and the travaux prcparatoires referred to there.
17. 10 U.N. GAOR Annex (Agenda Item 28, part 2) para. 181, U.N. Doc. A/2929 (1955).
 1987 Working Paper on Articles 2(2) and 3

arises whether priority should be given to the elimination of discrimination

on certain grounds over the elimination of discrimination on other grounds;
i.e., whether discrimination can be "ranked" according to the grounds on
which it was perpetrated. Alternatively, discrimination could be "ranked" ac-
cording to the form it takes-that is, according to the manner in which it is
perpetrated -irrespective of the grounds on which it was imposed or the
motives which gave rise to it.
It cannot be denied that in the work of the United Nations, and notably
in the standard-setting activities, discrimination based on race 18 and sex 19
has received more attention than other forms of discrimination, culminating
in the, adoption of the CERD and the CEDAW. Throughout the existence of
the United Nations there has been a strong awareness of the evils of racial
discrimination. The racist policies and practices carried out by the Nazi
regime prior to and during World War IIwere very much in the minds of
those who were instrumental in the adoption of the Convention on the
Prevention and Punishment of the Crime of Genocide. It isalso a matter of
history and fact that the struggle against colonialism, which figured so promi-
nently in the work of the United Nations, went hand in hand with the strug-
gle against racism. The body of resolutions and pronouncements, as well as
programs of action against racism and racial discrimination, are evidence of
deep-felt awareness of the evils of racism and racial discrimination. UN ac-
tion in this field isthe result of a very strong sense of urgency that also finds
expression in international instruments such as the Declaration and Conven-
tion on the Elimination of All Forms of Racial Discrimination and the Interna-

18. For example, the establishment of a Special Committee Against Apartheid, G.A. Res.
1761, 17 U.N. GAOR Supp. (No. 17) at 9, U.N. Doc. A/5217 (1962); the International
Convention on the Suppression and Punishment of the Crime of Apartheid, adopted 30
November 1973, entered into force 18 July 1976, G.A. Res. 3068, 28 U.N. GAOR Supp.
(No. 30) at 166, U.N. Doc. A/9030 (1974); the proclamation of the Decade for Action to
Combat Racism and Racial Discrimination, G.A. Res. 3057, 28 U.N. GAOR Supp. (No.
30) at 70, U.N. Doc. A/9030 (1972) (to begin 10 December 1973); the Declaration on the
Elimination of All Forms of Racial Discrimination, G.A. Res. 1904, 18 U.N. GAOR Supp.
(No. 15) at 35, U.N. Doc. A/5515 (1964); and the Convention on the Elimination of all
Forms of Racial Discrimination (see Appendix).
19. For example, the preamble to the Universal Declaration of Human Rights; the establish-
ment of a Commission on the Status of Women, E.S.C. Res. 11, 2 U.N. ESCOR Supp. at
405 (1946); the proclamation of 1975 as International Women's Year, G.A. Res. 3010, 27
U.N. GAOR Supp. (No. 30) at 66, U.N. Doc. A/8730 (1972); the proclamation of the
Decade for Women (Equality, Development, and Peace), G.A. Res. 3520, 30 U.N. GAOR
Supp. (No. 34) at 94, U.N. Doc. A/10034 (1975) (to begin in 1976); the Convention on the
Political Rights of Women, adopted 20 December 1952, entered into force 7 July 1954,
G.A. Res. 640,7 U.N. GAOR Supp. (No. 20) at 27, U.N. Doc. A/2361 (1952); the Conven-
tion on the Nationality of Married Women, adopted 29 January 1957, entered into force
11 August 1958, 309 U.N.T.S. 65; the Declaration on the Elimination of All Forms of
Discrimination Against Women, G.A. Res. 2263, 22 U.N. GAOR Supp. (No. 16) at 35,
U.N. Doc. A/6716 (1967); and the Convention on the Elimination of All Forms of Discrim-
ination Against Women (see Appendix).
 HUMAN RIGHTS QUARTERLY Vol. 9

tional Convention on the Suppression and Punishment of the Crime of Apar-

theid. Finally, in the Barcelona Traction Case the International Court of
Justice specifically included the protection from racial discrimination in its
list of obligations that states have towards the international community as a
whole, the obligations erga omnes; discrimination on other grounds was not
20
mentioned.
With regard to discrimination on the ground of sex, it should be noted
that the preamble of the U N Charter refers specifically to"the equal rights of
men and women," and that in both the ICESCR and the ICCPR a special arti-
cle (in each case, Article 3) is included specifically stressing the principle of
equality between men and women. These Articles were inserted in response
to the express wish of the General Assembly. In addition, the adoption of a
Declaration on the Elimination of Discrimination Against Women and of the
CEDAW provides further evidence of particular international concern as
regards the urgent need to abolish discrimination against women.
Can it be concluded from the above discussion that the elimination of
discrimination on the grounds of race and sex is a more immediate and
urgent obligation on the part of states parties to the ICESCR than the elimina-
tion of discrimination on other grounds? Not necessarily. The international
community as represented in the United Nations has given a high priority
and attached special urgency to the abolition of discrimination on the
grounds of race and sex; but other considerations also have to be taken into
account.
First, in practice it is often virtually impossible to distinguish sharply be-
tween the various grounds of discrimination. As Vierdag points out,
"discrimination hardly ever occurs on the basis of one particular ground
only, but rather as a complex mixture of several types simultaneously." 21
Grounds of discrimination are not only cumulative but also interactive:
some types of discrimination generate other types, and are in turn reinforced
by them. For example, discrimination on the grounds of race may cause a
situation in which a racial group is excluded from social or economic oppor-
tunities. As a result, this group may also be discriminated against on the
ground of, e.g., property.
Second, neither from the text of ICESCR Article 2(2) nor from the travaux
prdparatoirescan it be deduced that the drafters of the ICESCR had in mind
to give priority to the elimination of discrimination on certain grounds over
and above its elimination on other grounds. Nor does the fact that a specific
article was included on the equality of men and women provide a convinc-
ing argument to reach a conclusion to the contrary.

20. Barcelona Traction, Light & Power Co. (Belg. v. Spain), 1970 I.C.j. 3, 32, paras. 33-34 (5
February 1970).
21. E. W. Vierdag, supra note 7, at 129.
1987 Working Paper on Articles 2(2) and 3

Several representatives in the Third Committee thought Article 3 redun-

impair the principle of eliminating the other forms of discrimination and
detract from the general principle of nondiscrimination as a whole. 22 Never-
theless, Article 3 was adopted unanimously by the Third Committee. Reten-
tion of the Article was considered desirable23 because women were still
denied the exercise of certain rights, even in the highly developed countries,
although the principle of equality of the sexes was universally recognized.
This principle was therefore regarded as sufficiently important to bear repeti-
tion. One representative said that the Commission on Human Rights had
adopted the Article for psychological rather than legal reasons. 24 Another
even spoke of the "sentimental" views of many delegations. 25 Again, the
travaux pr6paratoires show that the inclusion of the Article was an expression
of a preoccupation of the United Nations at that time, that it was a matter of
policy to emphasize the need to abolish discrimination against women
without this implying a ranking of different forms of discrimination.
Consequently, in light of the travaux pr~paratoires and taking into ac-
count that the various types and grounds of discrimination operate in prac-
tice in an interrelated and interactive manner, there are no convincing
arguments for establishing a set of hard and fast rules regarding the order in
which the various types and grounds of discrimination should be elimi-
nated. 26 Decisive in this respect are the various conditions and ways in
which different forms and types of discrimination manifest themselves in dif-
ferent societies. Therefore, the states parties to the ICESCR should make
practical choices of policymaking according to the needs of the concrete
situations prevailing in their respective societies, taking into particular ac-
count the types and patterns of discrimination that may exist in their respec-
tive societies. Those states parties to the ICESCR that are also parties to the
CERD or to the CEDAW, however, should also be mindful of their obliga-
tions under the latter conventions. These states must interpret the implica-
tions of Article 2(2) of the ICESCR in conjunction with the obligations they
have undertaken on the basis of the CERD and the CEDAW. They must pay
particular attention to the urgency these instruments attach to the elimina-
tion of discrimination on the grounds of race and sex.

22. 17 U.N. GAOR C.3 (1184th mtg.) para. 12, U.N. Doc. A/C.3/SR.1184 (1962).
23. Some representatives thought that Article 3 went further than Article 2(2). See infra text ac-
companying notes 46-47.
24. 17 U.N. GAOR C.3 (1182d mtg.) para. 38, U.N. Doc. A/C.3/SR.1182 (1962).
25. 17 U.N. GAOR C.3 (1205th mtg.) para. 7, U.N. Doc. A/C.3/SR.1205 (1962).
26. Some members of the Research and Study Group do not share this opinion. They hold the
view that the rules of general international law and the international human rights stan-
dards elaborated by the United Nations after the adoption of the International Covenants
make it imperative to give special emphasis and urgency to the elimination of discrimina-
tion based on race and sex, wherever these types of discrimination may occur.
 HUMAN RIGHTS QUARTERLY Vol. 9

Ill. NATURE OF THE OBLIGATIONS OF STATES

UNDER ARTICLES 2(2) AND 3

Once a state has ratified the ICESCR, Articles 2(2) and 3 prevent the state
itself from imposing discriminatory measures. Three questions arise,
however. First, it may be questioned whether the state is obliged to
eliminate discriminatory situations immediately or whether the state can do
away with these situations gradually.
Second, in order to ensure that the right to equality is fully enjoyed it is
often not enough that the state does not discriminate. It may be necessary
that the state undertakes affirmative action for the purpose of securing ade-
quate advancement of certain groups. As the Permanent Court of Interna-
tional Justice in its Advisory Opinion concerning the Minority Schools in
Albania (1935) said:
Equality in law precludes discrimination of any kind; whereas equality in fact may
involve the necessity of different treatment -in order to attain a result which
27
establishes an equilibrium between different situations.
Third, not only states but also private persons and other legal entities
may practice discrimination. Therefore, there is a question whether the state
is obliged to take the necessary measures, including legislation, to prohibit
discriminatory practices by such persons and other legal entities.

A. Immediate vs. Progressive Implementation

Article 2(1) of the ICESCR obliges states "to take steps." Under this paragraph
they are allowed to implement gradually the provisions of the Covenant. The
words "to the maximum of its available resources" and "progressively"
underscore this. The question arises whether the principle of gradual im-
plementation applies also to Article 2(2) so that states have some time at their
disposal to do away with discrimination.
The word "guarantee" in Article 2(2), however, seems to imply a more
immediate obligation. In fact, the Commission on Human Rights, when
discussing Article 1(2) (later 2(2)), was given the choice between two ver-
sions: a Lebanese amendment that read "The States Parties hereto undertake
to guarantee that the rights enunciated in this covenant will be exercised
without distinction of any kind, . . . " and an oral subamendment of the
representative of France that read "Les Etats parties au present Pacte
s'engagent A prendre toutes les mesures nacessaires pour que les droits qui y
sont enoncs soient exercss sans distinction aucune .... " Poland rein-

27. Minority Schools in Albania, 1935 P.C.I.J. (ser. AIB) No. 64, at 19 (Advisory Opinion of 6
April 1935).
 Working Paper on Articles 2(2) and 3

troduced the Lebanese amendment in its original form and it was adopted
by ten votes to seven, with one abstention. 28 It may therefore be concluded
that the Commission on Human Rights wished an immediate implementa-
tion of the nondiscrimination principle.
Likewise, during the debates in the Third Committee an amendment
was submitted by the Lebanese representative to amalgamate the first two
paragraphs of Article 2 into a single paragraph. 29 Several representatives
found this entirely unacceptable. It was said that the elimination of
discrimination should not merely be a distant goal for states, 30 and that states
should not be able to use their degree of development as a justification for
applying discriminatory measures. 31 Moreover, it was argued that the
amendment would contradict the Universal Declaration, the UN Charter,
and international law in general.32 One representative feared that the
amendment would result in discrimination against one group, namely non-
nationals. 33 The Lebanese representative withdrew it at the same meeting.
There is yet another argument against applying the principle of gradual
implementation. Articles 2 and 5 indicate how the substantive rights
recognized in the Covenant should be realized. These rights are enumerated
in Part III (Articles 6 to 15). So, when Article 2(1) speaks of "the full realiza-
tion of the rights recognized in the present Covenant" it applies to these
substantive rights. It does not apply, however, to the other articles that in-
dicate the way in which the provisions in Part III should be applied. The pro-
visions in Part II are on a par; none is subordinate to any of the others.
The specialized international instruments on discrimination appear to
take another view. On the basis of these instruments states are obliged to
pursue a policy of eliminating discrimination.3 4 This seems to imply that
states are allowed to do away with discriminatory situations gradually,
although states undertake to pursue such a policy "without delay" (CERD
and CEDAW) and discrimination should be eliminated "speedily" (CERD
preamble).
On the one hand, it can therefore be concluded from both the travaux
pr~paratoiresand the position of Article 2(2) within the Covenant that states
should immediately eliminate discrimination. On the other hand, in line
with the abovementioned specialized international instruments, it may be
said that states should gradually eliminate discrimination. The following ap-
proach is suggested.

28. 8 U.N. ESCCHR (274th mtg.) at 13, U.N. Doc. EICN.4ISR.274 (1952).
29. U.N. Doc. AIC.31L.1054 and Add.1 (1962).
30. 17 U.N. GAOR C.3 (1206th mtg.) para. 11, U.N. Doc. AIC.31SR.1206 (1962).
31. Id. at para. 10.
32. Id. at para. 11.
33. Id. at para. 13.
34. See Convention Concerning Discrimination in Respect of Employment and Occupation
(110 No. 111), art. 2; Convention Against Discrimination in Education, arts. 3, 4; CERD,
art. 2(1); CEDAW, art. 2.
 HUMAN RIGHTS QUARTERLY Vol. 9

A distinction should be made between discriminatory situations prior to

and subsequent to the state becoming a party to the Covenant. Discrimina-
tory situations subsequent to becoming a party raise the question whether a
state may impose discriminations in progressively implementing a right
recognized by the ICESCR. An example may clarify this question. A state
tries to implement the Article 13 right of everyone to education by
establishing schools, but there is not sufficient money available to found
enough schools for everyone. Is this state allowed to restrict admission to
boys?
We would answer this question in the negative. Not certain groups, but
the population as a whole, should be burdened with problems in imple-
menting rights (Article 2(3) allows one exception to this principle, regarding
the economic rights of non-nationals in developing countries). The fact that
there is not enough money cannot form a justification for making a distinc-
tion on the ground of sex. This was also the conclusion in the report of the
Third Committee:
Ifit was understood that the realization of the rights proclaimed in the Covenant
must of necessity be progressive, it should be equally clear that there must be no
discrimination during the process of progressive implementation of those rights.3s
Therefore, in implementing substantive rights recognized in the ICESCR a
state should ensure that no new discriminatory situations arise.
It is more difficult to answer the question whether a state is allowed to
eliminate gradually the discriminatory situations that existed prior to its
becoming a party, or whether the state is obliged to end these situations
forthwith. Because of the possible influence of Article 26 of the ICCPR,
another distinction should be made, that is,a distinction between legislative
and other measures. It is clear from the portion of Article 2(1) providing
"[w]ith a view to achieving progressively the full realization of the rights
recognized in the present Covenant by all appropriate means, including par-
ticularly the adoption of legislative measures" (emphasis added) that the
realization of the economic, social, and cultural rights cannot be achieved
by legislation alone.
As far as nonlegislative measures are concerned, states should be al-
lowed some time to eliminate inequalities. In most countries inequalities in
the field of economic, social, and cultural rights exist, at least to some extent.
It cannot be expected that the inequalities will disappear overnight. Pursuant
to the abovementioned instruments, however, states should eliminate these
inequalities speedily; they should pursue a policy of eliminating
discriminatory situations without delay. 36

35. 17 U.N. GAOR Annex (Agenda Item 43) para. 64, U.N. Doc. A/5365 (1962).
36 One such policy could be affirmative action programs.
1987 Working Paper on Articles 2(2) and 3

Opinions differ on the meaning of Article 26 with regard to implement-

ing legislative measures. Some say that this Article is confined to equality
before the law.3 7 Ramcharan's approach, that Article 26 has a broader mean-
ing,38 is preferable. Article 26 contains a norm not only regarding the ap-
plication of the law but also regarding the contents of the law. The law itself
should not make unwarranted distinctions.
Since the scope of Article 26 is not restricted to the rights recognized in
the ICCPR, this view would imply that an individual can also invoke Article
26 when a law is discriminatory in the field of economic, social, and cultural
rights. It is generally accepted that states should meet their obligations under
the ICCPR as soon as the Covenant comes into force for them. This implies
that a state is obliged to do away with discrimination in the law forthwith.

B. Declining Economy

In a recent article Tomuschat points to the fact that

the [ICESCR] reflects the economic optimism of the 1960s when it was thought
that the well-being of every human being on earth could be a realistic political
aim. Todays ambitions are much more modest .... With the collapse of the
underlying economic assumptions in a world progressively marked by serious
crisis symptoms, the [ICESCR] itself now seems to have lost some of its cor-
39
nerstones.
This expectation of a growing economy is also clear from the text of Article
2(1). The phrase "to the maximum of its available resources" is connected
with "achieving progressively the full realization of the rights." When the
available resources diminish, however, it may not be possible to sustain
progress in the field of economic, social, and cultural rights. In this respect
Article 4 is important; it stipulates that the state may subject the rights it pro-
vides in conformity with the ICESCR "only to such limitations as are deter-
mined by law only in so far as this may be compatible with the nature of
these rights and solely for the purpose of promoting the general welfare in a
democratic society."
It is submitted that the introduction or the continuation of discrimina-
tory practices can never be "compatible with the nature of these rights." It is

37. See C. Tomuschat, "Equality and Non-Discrimination under the International Covenant on
Civil and Political Rights," in Staatsrecht- Volkerrecht- Europarecht 698-710 (Festschrift
for HJ. Schlochauer 1981).
38. B. G. Ramcharan, "Equality and Nondiscrimination," in The International Bill of Rights:
The Covenant on Civil and Political Rights 255 (L. Henkin ed. 1981). See also id. nn. 27,
38.
39. C. Tomuschat, "Human Rights in a World-Wide Framework: Some Current Issues," in Zeit-
schrift for Auslhndisches dffentliches Recht und Vdlkerrecht 566-567 (1985).
 HUMAN RIGHTS QUARTERLY Vol. 9

a fundamental feature of these rights that everyone is entitled to them. Fur-

thermore, it isargued that the promotion of the general welfare can never be
achieved at the expense of one section of society. Discriminatory practices
can never be said to promote the general welfare. A state is allowed under
Article 4, therefore, to limit economic, social, and cultural rights in certain
circumstances, but even then it should observe the nondiscrimination prin-
ciple. A declining economy is no justification for burdening only socially
disadvantaged groups. No new discriminatory situations should be created;
and even in a time of a declining economy states are obliged to end existing
discriminatory practices. Nondiscrimination is not a favor that can be
granted only in a time of a growing economy.

C. Affinnative and Protective Action

During the discussions in the Third Committee on Article 2, the Indian
representative had suggested adding to the Article an explanatory paragraph
reading: "Special measures for the advancement of any socially and educa-
tionally backward sections of society shall not be construed as 'distinction'
under this article." 40 It was clear, however, from the discussion on the
Three-Power Amendment 4' that the Third Committee agreed with this inter-
pretation and India did not press for the addition of such a paragraph in Arti-
cle 2. On the other hand, both the CERD and the CEDAW do contain provi-
sions in which it is explicitly stated that special measures aimed at the
advancement of certain groups shall not be considered discrimination (Arti-
cle 1(4) of the CERD, Article 4(1) of the CEDAW). These special measures
will be referred to as "positive measures" or "affirmative action."
Protective measures should be distinguished from these positive
measures as follows. Positive measures (or affirmative action) are those taken
so that socially disadvantaged groups may exert their right to equality. These
corrective, compensatory measures are temporary and should be with-
drawn as soon as gains have been made by the groups. On the other hand,
protective measures are meant to protect inherently vulnerable groups, e.g., 42
children, the mentally and physically handicapped, and pregnant women.
These measures as such are not temporary (though some may be withdrawn
when the state of technology makes that possible). It should be noted,
however, that some protective measures exist for misplaced paternalistic
reasons.43

40. 17 U.N. GAOR C.3 (1182d mtg.) para. 17, U.N. Doc. A/C.3/SR.1182 (1962).
41. See supra notes 4-7 and accompanying text.
42. An example would be the prohibition of working at a computer screen for pregnant
women, even where no danger of exposure to radiation exists.
43. An example of this may be the law that was mentioned by the Belgian representative in
the Third Committee. This law "provided that in every department store there should be as
many chairs as there were sales women." 17 U.N. GAOR C.3 (1192d mtg.) para. 33, U.N.
Doc. AIC.31SR.1182 (1962).
1987 Working Paper on Articles 2(2) and 3

In order that protective measures, especially for women, would not be

forbidden by Article 2(2), the representative of Belgium in the Third Commit-
tee submitted an amendment to add to paragraph 2: "And without prejudice
to specific provisions giving protection on grounds of age or of sex.""4 It was
said that the Three-Power Amendment made this amendment, too, unne-
cessary, and the Belgian representative withdrew it.4 5 Two specialized inter-
national instruments do make the point explicitly, however: Article 5 of the
Convention Concerning Discrimination in Respect of Employment and Oc-
cupation (ILO No. 111) and Article 4(2) of the CEDAW state that protective
measures shall not be deemed to be discrimination.
Itis clear from the travaux pr6paratoires that Article 2(2) does not forbid
a state to take either affirmative action or protective measures. It is another
matter whether a state is also obliged to take either affirmative action or pro-
tective measures. With regard to affirmative action there may be a difference
between Article 2(2) and Article 3. During the discussions in the Third Com-
mittee on Article 3 some representatives argued, against those who thought
that it was redundant, that this Article went further than Article 2(2). It was
said that on the basis of Article 3 states "must also pursue an active policy of
giving women equal opportunities with men." 46 Equality of rights "implied
the existence of positive rights in all the spheres dealt with in the draft
47
Covenants."
It is true that the wording of Article 3 "to ensure the equal right of men
and women" seems to imply a more positive obligation. The words "without
discrimination" in Article 2(2) might point to a more negative obligation.
From a general comment by the Human Rights Committee on Articles 20)
and 3 of the ICCPR, however, one may conclude that both Articles contain a
positive obligation. Since for the question at issue these Articles do not differ
fundamentally from Articles 2(2) and 3 of the ICESCR, one may conclude
that such an obligation is also incurred by states with regard to the latter Arti-
cles. The Human Rights Committee gave as its view that
article 3, as articles 2(1) and 26 in so far as these articles primarily deal with the
prevention of discrimination on a number of grounds, among which sex is one,
requires not only measures of protection but also affirmative action designed to
ensure the positive enjoyment of rights. This cannot be done simply by enacting
laws."
In other legal instruments an obligation to take affirmative action was ex-
plicitly included. Article 2 of ILO Convention No. 111 and Article 4 of the
Convention Against Discrimination in Education provide that states should

44. U.N. Doc. A/C.3/L.1030 (1962).

45. 17 U.N. GAOR C.3 (1204th mtg.) para. 29, U.N. Doc. A/C.3/SR.1204 (1962).
46. 17 U.N. GAOR C.3 (1182d mtg.) para. 11, U.N. Doc. A/C.3/SR.1182 (1962).
47. 17 U.N. GAOR C.3 (1183d mtg.) para. 10, U.N. Doc, A/C.3/SR.1 183 (1962).
48. General Comment 4/13, 36 U.N. GAOR Supp. (No. 40) at 109, U.N. Doc. A/36/40
(1981). The Comment was adopted by the Committee in 1981.
266 HUMAN RIGHTS QUARTERLY Vol. 9

pursue a policy designed to promote equality of opportunity. The obligation

is even more explicit in Article 2(2) of the CERD and Article 3 of the CEDAW.
The fact that in order to attain real equality positive measures may be
necessary, has thus been recognized in various specialized legal instruments
and has also been confirmed by the Human Rights Committee in its general
comment. It is concluded, therefore, that on the basis of both Article 2(2)
and Article 3 of the ICESCR states are obliged to take affirmative action for
the benefit of disadvantaged groups. It is possible that originally only Article
3 included this obligation but today, and in the light of other legal instru-
ments, both Articles may be interpreted in this way.

D. Third Persons

Not only states, but also private persons and other legal entities, practice
discrimination. Can it be maintained that Article 2(2) of the ICESCR obliges
the state to take steps through legislation or otherwise to prohibit others
from discriminating? 49 The travaux pr6paratoires are not clear on this point.
During the debates on Article 2(2) in the Third Committee some representa-
tives expressed reservations concerning the use of the word "guarantee";
they would have preferred a more flexible term such as "ensure." It was
pointed out, for example, that the exercise of certain rights was sometimes
regulated by agreements between individuals or groups or by judicial deci-
sions. The state was not always able to intervene in such arrangements in
order to "guarantee" the exercise of the rights at issue. No amendment was
submitted on this point, however.
On the other hand, the Bulgarian delegation cited Sir Hersch Lauter-
pacht, stating:
IT]he State... could not recognize the legal validity of a contract containing
discriminatory clauses without ipso facto contravening the provisions of the
Charter of the United Nations and the obligations envisaged in the draft Cove-
nants on Human Rights.... The same eminent jurist had also said that the State
should endeavour, with a view to preventing discrimination, to bring its full influ-
ence to bear on certain bodies, and especially on subsidized private bodies; he
had further said that the State should enact laws to eliminate discrimination, par-
ticularly in all private concerns which, like restaurants and hotels, served the
public and which, even under common-law principles, fell to some extent within
the jurisdiction of the State.50
This delegation believed, therefore, that it was possible for all states to use
legislative as well as other means to ensure the exercise of the rights set forth
in the draft Covenant.

49. Van Dijk and van Hoof call this "indirect Drittwirkung." P.van Dijk and G.l.H. van Hoof,
supra note 14, at 396.
50. 17 U.N. GAOR C.3 (1182d mtg.) para. 15, U.N. Doc. AIC.3/SR.1182 (1962).
 Working Paper on Articles 2(2) and 3

Other legal instruments take clearer positions. Article 2(1)(d) of the

CERD provides that the state shall prohibit and bring to an end racial
discrimination by any persons, group, or organization; paragraphs (b), (e),
and (f) of Article 2 of the CEDAW contain similar provisions. As the
Bulgarian delegation said, there seems to be no reason why states should not
be able to forbid private persons to discriminate. This reasoning was ac-
cepted in the CERD and the CEDAW. The conclusion is justified that under
Article 2(2) and 3 states are equally obliged to prohibit others to practice
discrimination in public life.

IV. CONCLUSION

Article 2(2) of the ICESCR forbids only those distinctions for which no objec-
tive or reasonable justification can be found and where no reasonable pro-
portionality exists between the means employed and the aim sought to be
realized. The enumeration of grounds of discrimination in the ICESCR is
merely illustrative; although the international community has given priority
to eliminating racial and sexual discrimination, this does not necessarily
imply that states should give priority to eliminating these forms of discrimina-
tion over others.
Nonlegislative measures to eliminate discrimination can be undertaken
gradually although this should be done speedily pursuant to a nondiscrimi-
nation policy. Legislative measures should be applied immediately to
eliminate discrimination in the areas of civil, political, economic, social, and
cultural rights regardless of a declining economy. Finally, both Articles 2(2)
and 3 oblige the state to take affirmative action in implementing positive or
protective measures with regard not only to the state but to private persons
and entities engaged in public activity as well.
 HUMAN RIGHTS QUARTERLY Vol. 9

APPENDIX: RELEVANT ARTICLES IN VARIOUS INTERNATIONAL

LEGAL INSTRUMENTS

United Nations Charter

Signed 26 June 1945, entered into force 24 October 1945, 59 Stat. 1031,
T.S. No. 993, 3 Bevans 1153 (1969)

Article 1
The purposes of the United Nations Charter are:

3. To achieve international cooperation in solving international prob-

lems of an economic, social, cultural, or humanitarian character, and in
promoting and encouraging respect for human rights and for fundamen-
tal freedoms for all without distinction as to race, sex, language, or
religion;....

Article 13
The General Assembly shall initiate studies and make recommendations for
the purpose of:

b. promoting international cooperation in the economic, social,

cultural, educational, and health fields, and assisting in the realization
of human rights and fundamental freedoms for all without distinction
as to race, sex, language, or religion.

Article 55
With a view to the creation of conditions of stability and well-being which
are necessary for peaceful and friendly relations among nations based on
respect for the principle of equal rights and self-determination of peoples,
the United Nations shall promote:

c. universal respect for, and observance of, human rights and fun-
damental freedoms for all without distinction as to race, sex,
language, or religion.

Article 76
The basic objectives of the trusteeship system, in accordance with the Pur-
poses of the United Nations laid down in Article 1 of the present Charter,
shall be:

c. to encourage respect for human rights and for fundamental freedoms

for all without distinction as to race, sex, language, or religion....
 Working Paper on Articles 2(2) and 3

International Covenant on Civil and Political Rights

Adopted 16 December 1966, entered into force 23 March 1976,

G.A. Res. 2200, 21 U.N. GAOR, Supp. (No. 16) at 52,
U.N. Doc. A16316 (1966)

Article 2
1. Each State Party to the present Covenant undertakes to respect and to
ensure to all individuals within its territory and subject to its jurisdiction the
rights recognized in the present Covenant, without distinction of any kind,
such as race, colour, sex, language, religion, political or other opinion, na-
tional or social origin, property, birth or other status.

Article 3
The States Parties to the present Covenant undertake to ensure the
equal right of men and women to the enjoyment of all civil and political
rights set forth in the present Covenant.

Article 26
All persons are equal before the law and are entitled without any dis-
crimination to the equal protection of the law. In this respect, the law shall
prohibit any discrimination and guarantee to all persons equal and effective
protection against discrimination on any ground such as race, colour, sex,
language, religion, political or other opinion, national or social origin, prop-
erty, birth or other status.

European Convention for the Protection of Human Rights and

Fundamental Freedoms

Signed 4 November 1950, entered into force 3 September 1953,

213 U.N.T.S. 222

Article 14
The enjoyment of the rights and freedoms set forth in this Convention
shall be secured without discrimination on any ground such as sex, race,
colour, language, religion, political or other opinion, national or social
origin, association with a national minority, property, birth or other status.

American Convention on Human Rights

Signed 22 November 1969, entered into force 18 July 1978, O.A.S.T.S.

 HUMAN RIGHTS QUARTERLY Vol. 9

No. 36, at 1, O.A.S. Off. Rec. OEA/Ser.L./VIII.23, doc. 21, rev. 6

(English 1979)

Article 1
1. The States Parties to this Convention undertake to respect the rights
and freedoms recognized herein and to ensure to all persons subject to their
jurisdiction the free and full exercise of those rights and freedoms, without
any discrimination for reasons of race, color, sex, language, religion, political
or other opinion, national or social origin, economic status, birth, or any
other social condition.

Convention Concerning Discrimination in Respect of Employment and

Occupation (ILO No. 111)

Adopted 25 June 1958, entered into force 15 June 1960, 362 U.N.T.S. 32

Article 1
1. For the purposes of this Convention the term "discrimination" in-
cludes:
a. Any distinction, exclusion or preference made on the basis of race,
colour, sex, religion, political opinion, national extraction or social origin,
which has the effect of nullifying or impairing equality of opportunity or
treatment in employment or occupation;
b. Such other distinction, exclusion or preference which has the effect
of nullifying or impairing equality of opportunity or treatment in employ-
ment or occupation as may be determined by the Member concerned after
consultation with representative employers' and workers' organisations,
where such exist, and with other appropriate bodies.
2. Any distinction, exclusion or preference in respect of a particular job
based on the inherent requirements thereof shall not be deemed to be dis-
crimination.

Article 2
Each Member for which this Convention is in force undertakes to
declare and pursue a national policy designed to promote, by methods ap-
propriate to national conditions and practice, equality of opportunity and
treatment in respect of employment and occupation, with a view to elimi-
nating any discrimination thereof.
1987 Working Paper on Articles 2(2) and 3

Article 5
1. Special measures of protection or assistance provided for in other
Conventions or Recommendations adopted by the International Labour
Conference shall not be deemed to be discrimination.
2. Any Member may, after consultation with representative employers'
and workers' organizations, where such exist, determine that other special
measures designed to meet the particular requirements of persons who, for
reasons such as sex, age, disablement, family responsibilities or social or
cultural status, are generally recognized to require special protection or
assistance, shall not be deemed to be discrimination.

Convention Against Discrimination in Education

Adopted 14 December 1960, entered into force 22 May 1962,

429 U.N.T.S. 93

Article 1
1. For the purposes of this Convention the term "discrimination" includes
any distinction, exclusion, limitation or preference which, being based on
race, colour, sex, language, religion, political or other opinion, national or
social origin, economic condition or birth, has the purpose or effect of nulli-
fying or impairing equality of treatment in education....

Article 3
In order to eliminate and prevent discrimination within the meaning of
this Convention, the State Parties thereto undertake:

Article 4
The States Parties to this Convention undertake furthermore to formu-
late, develop and apply a national policy which, by methods appropriate to
the circumstances and to national usage, will tend to promote equality of
opportunity and of treatment in the matter of education....

International Convention on the Elimination of all Forms of

Racial Discrimination

Adopted 21 December 1965, entered into force 4 January 1969,

660 U.N.T.S. 195
 HUMAN RIGHTS QUARTERLY Vol. 9

Article I
1. In this Convention, the term "racial discrimination" shall mean any
distinction, exclusion, restriction or preference based on race, colour,
descent, or national or ethnic origin which has the purpose or effect of
nullifying or impairing the recognition, enjoyment or exercise, on an equal
footing, of human rights and fundamental freedoms in the political,
economic, social, cultural or any other field of public life.

4. Special measures taken for the sole purpose of securing adequate ad-
vancement of certain racial or ethnic groups or individuals requiring such
protection as may be necessary in order to ensure such groups or individuals
equal enjoyment or exercise of human rights and fundamental freedoms
shall not be deemed racial discrimination, provided, however, that such
measures do not, as a consequence, lead to the maintenance of separate
rights for different racial groups and that they shall not be continued after the
objectives for which they were taken have been achieved.

Article 2
1.States Parties condemn racial discrimination and undertake to pursue
by all appropriate means and without delay a policy of eliminating racial
discrimination in all its forms and promoting understanding among all races,
and, to this end:

(d) Each State Party shall prohibit and bring to an end, by all appropriate
means, including legislation as required by circumstances, racial discrimina-
tion by any persons, group or organization;

2. States Parties shall, when the circumstances so warrant, take, in the

social, economic, cultural and other fields, special and concrete measures to
ensure the adequate development and protection of certain racial groups or
individuals belonging to them, for the purpose of guaranteeing them the full
and equal enjoyment of human rights and fundamental freedoms. These
measures shall in no case entail as a consequence the maintenance of un-
equal or separate rights for different racial groups after the objectives for
which they were taken have been achieved.

Convention on the Elimination of All Forms of Discrimination

Against Women

Adopted 18 December 1979, entered into force 3 September 1981,

G.A. Res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193,
U.N. Doc. A/Res/34/180 (1980)
1987 Working Paper on Articles 2(2) and 3

Article 1
For the purposes of the present Convention, the term "discrimination
against women" shall mean any distinction, exclusion or restriction made on
the basis of sex which has the effect or purpose of impairing or nullifying the
recognition, enjoyment or exercise by women, irrespective of their marital
status, on a basis of equality of men and women, of human rights and funda-
mental freedoms in the political, economic, social, cultural, civil or any
other field.

Article 2
States Parties condemn discrimination against women in all its forms,
agree to pursue by all appropriate means and without delay a policy of
eliminating discrimination against women and, to this end, undertake:

b. To adopt appropriate legislative and other measures, including sanc-

tions where appropriate, prohibiting all discrimination against women;

e. To take all appropriate measures to eliminate discrimination against

women by any person, organization or enterprise;
f. To take all appropriate measures, including legislation, to modify or
abolish existing laws, regulations, customs and practices which con-
stitute discrimination against women;

Article 3
States Parties shall take in all fields, in particular in the political, social,
economic and cultural fieldg, all appropriate measures, including legislation,
to ensure the full development and advancement of women, for the purpose
of guaranteeing them the exercise and enjoyment of human rights and fun-
damental freedoms on a basis of equality with men.

Article 4
1.Adoption by States Parties of temporary special measures aimed at ac-
celerating de facto equality between men and women shall not be con-
sidered discrimination as defined in the present Convention, but shall in no
way entail as a consequence the maintenance of unequal or separate stan-
dards; these measures shall be discontinued when the objectives of equality
of opportunity and treatment have been achieved.
2. Adoption by States Parties of special measures, including those
measures contained in the present Convention, aimed at protecting mater-
nity shall not be considered discriminatory.