Non-discrimination This part of the guide focuses on the guarantee of nondiscrimination as one of the most essential aspects of minority protection. First, relevant provisions of international human rights treaties and minority rights instruments are reviewed. Then, a selection of relevant jurisprudence of international courts and quasi-judicial bodies is analysed, with the focus on direct and indirect discrimination. This analysis is followed by a discussion of case law on non-discrimination on the grounds of religion; religion and gender; and race and ethnic origin. The section is concluded by an examination of European Union (EU) rules on non-discrimination, with an emphasis on race and religion. Guarantees on nondiscrimination in international and regional treaties The principle of non-discrimination, as one of the facets of minority protection, is firmly enshrined in general human rights treaties, as well as more specific minority rights instruments. A general prohibition to discriminate on grounds such as race, religion, language and gender is wellestablished in international treaties on the protection of human rights. At the universal level, the International Covenant on Civil and Political Rights (ICCPR)1 precludes discrimination on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status in two provisions: Article 2 outlaws discrimination in the enjoyment of the Covenant’s rights and Article 26 comprises an autonomous right.2 Based on the same grounds, the International Covenant on Economic, Social and Cultural Rights (ICESCR) prohibits discrimination in the exercise of economic, social and cultural rights in Article 2(2).3 At the European level, the European Convention for the Protection of Human Rights (ECHR)4 precludes 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 in Article 14. Similar to Article 2 ICCPR, this provision applies in conjunction with the substantive rights in the ECHR, that is, it is not an independent provision. Since 1 April 2005 Protocol No. 12 to the ECHR introduced the equivalent of Article 26 ICCPR – a general prohibition of discrimination.5 The difference between Article 14 ECHR and Protocol No. 12 is that whereas Article 14 prohibits discrimination in the enjoyment of the rights and freedoms set forth in the ECHR, Article 1 of Protocol 12 extends the scope of protection to any right set forth by law and therefore is absolute and stand-alone.6 Despite the latter’s breadth of application, there is a low number of ratifications of Protocol 12, particularly by western European countries, while all contracting parties to the ECHR are bound by Article 14. Furthermore, the African Charter on Human and Peoples’ Rights (AfrCH)7 forbids discrimination in Article 2; although the list of grounds of non-discrimination is open-ended, similar to Article 2 ICCPR and Article 14 ECHR, the reach of Article 2 AfrCH is limited to the enjoyment of the Charter rights. The American Convention on Human Rights (ACHR)8 has a slightly different formulation in Article 24 on the right to equal protection: it merges the equal treatment before the law with equality of treatment.9 Moreover, unlike the abovementioned provisions, Article 24 ACHR does not enumerate the grounds of discrimination. In addition to general human rights guarantees, Article 4 of the Framework Convention for the Protection of National Minorities (FCNM)10 contains the guarantee of non-discrimination specifically tailored to the needs of national minorities.11 Although Article 27 ICCPR does not refer to the principle of non-discrimination, in its General Comment No. 23, the Human Rights Committee (HRC), a quasi-judicial body under the ICCPR entrusted to monitor compliance with the instrument and to offer interpretations of its provisions, established that persons belonging to minorities can benefit from the guarantees in Articles 2 and 26 ICCPR.12 Jurisprudence of international and regional courts and quasijudicial bodies Direct discrimination In assessing a claim of discrimination, it is essential to differentiate between direct and indirect discrimination. Direct discrimination concerns treating people in similar situations differently based on prohibited grounds without an objective justification. The jurisprudence of international and regional courts and quasi-judicial bodies MINORITY GROUPS AND LITIGATION: A REVIEW OF DEVELOPMENTS IN INTERNATIONAL AND REGIONAL JURISPRUDENCE 5