PART ONE: STATE OBLIGATIONS TO ENACT COMPREHENSIVE ANTI-DISCRIMINATION LAW PART ONE The Law establishes a judicial mechanism allowing for the effective reestablishment of the rule of law whenever an act of arbitrary discrimination is committed. Article 1 sets out the material scope of the law, which obligates each of the organs of the State administration, within the scope of its competence. Article 1 further establishes a positive obligation for State bodies to develop and implement policies designed to guarantee to all persons the right to be free from discrimination. Discrimination is defined under article 2 as any distinction, exclusion or restriction that lacks reasonable justification, made by State agents or individuals, that causes deprivation, disturbance or a threat as regards the legitimate exercise of the fundamental rights established in the constitution or in the international treaties on human rights ratified by Chile that are in force. Article 2 establishes an open list of grounds to prohibit discrimination on the basis of race or ethnicity, nationality, socioeconomic situation, language, ideology or political opinion, religion or belief, union membership or participation, sex, sexual orientation, gender identity and marital status, among other characteristics. Article 2 further adds that differentiation may be justified by the legitimate exercise of another fundamental right with reference to a number of specific constitutional clauses. C. Europe Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) prohibits discrimination in respect of other Convention rights. The European Court of Human Rights has interpreted this to encompass a prohibition on treating similar things differently and different things similarly.94 This provision is supplemented by article 1 of Protocol No. 12 to the Convention, which provides a free-standing right to non-discrimination. To date, 20 States have ratified Protocol No. 12. Ratification of the Convention is a prerequisite for membership of the Council of Europe and thus all 47 Council of Europe member States are bound by the requirements of article 14.95 A number of States have also ratified the European Social Charter or the revised Charter and are thus also bound by the non-discrimination requirements of these treaties.96 The European Union has made bringing national equality legislation into line with the equal treatment directives an obligation for all European Union member States, as well as in association and membership negotiations with States seeking closer relations with it. Together, the directives extend protection from discrimination to individuals on the basis of their age, disability, gender, racial or ethnic origin, religion or belief, and sexual orientation in employment and also on the basis of racial or ethnic origin in the areas of education; social protection, including social security and health care; and the provision of goods and services, including housing.97 Since 2008, a draft horizontal directive has been pending with the European Council.98 In addition to the directives, chapter III of the Charter of Fundamental Rights of the European Union imposes supplementary obligations on States in the application of European Union law, which may be used to extend the list of prohibited grounds of discrimination99 and the level of protection afforded in practice.100 94 European Court of Human Rights, Thlimmenos v. Greece, Application No. 34369/97, Judgment, 6 April 2000. 95 Additionally, in 2011, the Parliamentary Assembly of the Council of Europe adopted resolution 1844 (2011) on the Declaration of Principles on Equality and activities of the Council of Europe, which calls on member States to adopt comprehensive anti-discrimination law. 96 European Social Charter, third preambular paragraph; and European Social Charter (Revised), part V, art. E. 97 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation; Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin; Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services; and Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast). 98 Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation. For further information, see European Network of Equality Bodies (EQUINET), “Advancing the EU legal framework for equality and its implementation”, 9 November 2020. 99 Charter of Fundamental Rights of the European Union, art. 21 (1). 100 See, for instance, Court of Justice of the European Union, Blanka Soukupová v. Ministerstvo zemědělství, Case C-401/11, Judgment, 11 April 2013. See also European Union Agency for Fundamental Rights, Applying the Charter of Fundamental Rights of the European Union in Law and Policymaking at National Level: Guidance (Luxembourg, Publications Office of the European Union, 2020), pp. 29–30. 11