PROTECTING MINORITY RIGHTS – A Practical Guide to Developing Comprehensive Anti-Discrimination Legislation (b) Non-discrimination as a free-standing right Article 26 of the International Covenant on Civil and Political Rights provides a free-standing right to nondiscrimination that extends beyond the requirement to ensure equality in the enjoyment of other human rights, to prohibit discrimination “in law or in fact in any field regulated and protected by public authorities.”367 The material scope of the right to non-discrimination under article 5 of the Convention on the Rights of Persons with Disabilities is similarly expansive and, like the Human Rights Committee, the Committee on the Rights of Persons with Disabilities has interpreted it as establishing an “autonomous right” to non-discrimination.368 Likewise, article 15 of the Convention on the Elimination of All Forms of Discrimination against Women has been interpreted to encompass “obligations for States parties to ensure that women enjoy substantive equality with men in all areas of the law”.369 More broadly, the Committee on the Elimination of Discrimination against Women has noted that the Convention requires States to “enact legislation that prohibits discrimination in all fields of women’s lives”.370 While the International Convention on the Elimination of All Forms of Racial Discrimination is less explicit in this regard, in its recent communications, the Committee on the Elimination of Racial Discrimination has recommended the adoption of comprehensive anti-discrimination legislation that covers “all fields of law and public life in accordance with article 1 (1) of the Convention.”371 Many regional human rights instruments adopt a similar two-track approach to that set out in the International Covenant on Civil and Political Rights, prohibiting discrimination in respect of established Convention rights;372 and in respect of all other areas of life regulated by law, through an autonomous equality provision.373 The Inter-American Commission on Human Rights, for example, has clarified that the equal protection clause under article 24 of the American Convention on Human Rights applies to all national laws and their implementation.374 The African Commission on Human and Peoples’ Rights has noted that “Article 3 of the African Charter contains a general guarantee of equality which supplements the ban on discrimination provided for in Article 2.”375 For article 3 to apply, any “inequality alleged by the Complainant should follow from the ‘law’”.376 This does not require the existence of a discriminatory law per se; rather, article 3 of the Charter prohibits inequality arising from the unequal application of a State’s legal framework.377 The European Convention on Human Rights is somewhat of an outlier in that, unlike its regional counterparts, it does not provide for a free-standing right to non-discrimination. Article 14 of the Convention prohibits discrimination in “the enjoyment of the rights and freedoms set out in [the] Convention”. However, while the material scope of article 14 is more limited than the provisions in most international and regional instruments, its field of application has gradually expanded through the judgments of the European Court of Human Rights. Importantly, the Court has held that it is not necessary to demonstrate a violation of another Convention right to find a violation of article 14. It is sufficient that such discrimination falls “within the general scope of 50 367 Human Rights Committee, general comment No. 18 (1989), para. 12. 368 Committee on the Rights of Persons with Disabilities, general comment No. 6 (2018), para. 13. 369 Committee on the Elimination of Discrimination against Women, general recommendation No. 33 (2015), paras. 6 and 22. 370 Committee on the Elimination of Discrimination against Women, general recommendation No. 28 (2010), para. 31. 371 CERD/C/RUS/CO/23-24, para. 10. 372 See, for example, African Charter on Human and Peoples’ Rights, art. 2; American Convention on Human Rights, art. 1 (1); and European Convention on Human Rights, art. 14. 373 See, for example, African Charter on Human and Peoples’ Rights, art. 3; American Convention on Human Rights, art. 24; and Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms, art. 1. 374 Inter-American Court of Human Rights, Duque v. Colombia, Judgment, 26 February 2016, para. 94. 375 African Commission on Human and Peoples’ Rights, Bissangou v. Republic of Congo, communication No. 253/2002, Decision, 15–29 November 2006, para. 70. 376 Ibid., para. 71. 377 Ibid. See also African Commission on Human and Peoples’ Rights, Purohit and Moore v. the Gambia, communication No. 241/01, Decision, 15–29 May 2003, para. 49, in which the Commission distinguishes between articles 2 and 3 of the African Charter as follows: “Article 2 lays down a principle that is essential to the spirit of the African Charter and is therefore necessary in eradicating discrimination in all its guises, while Article 3 is important because it guarantees fair and just treatment of individuals within a legal system of a given country.”