PROTECTING MINORITY RIGHTS – A Practical Guide to Developing Comprehensive Anti-Discrimination Legislation (a) International and regional law The Human Rights Committee has observed that “not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and the aim is to achieve a purpose which is legitimate under the Covenant”.391 As confirmed by the Committee in individual cases, the objective and reasonable justification test entails a proportionality assessment.392 With some nuances, the Committee on the Elimination of Racial Discrimination,393 the Committee on Economic, Social and Cultural Rights394 and the Committee on the Rights of Persons with Disabilities,395 alongside the primary regional human rights mechanisms,396 have each adopted this framework model. While the Committee on the Elimination of Discrimination against Women has not addressed the topic of justification in its general recommendations, individual members have expressed support for a general justification test under the relevant Convention.397 At the international level, the justification test has been cited most frequently in respect of indirect discrimination;398 although the reference to “differential treatment”399 indicates its equal applicability in direct discrimination cases.400 Indeed, both the Committee on Economic, Social and Cultural Rights and the Human Rights Committee have applied the test in this manner.401 In practice, however, direct discrimination is rarely justified and direct discrimination on the basis of certain characteristics, such as race and ethnicity, can never be justified.402 By contrast, neutral policies and practices that are prima facie indirectly discriminatory often do serve legitimate aims, although the means employed are not always proportionate; and less restrictive measures may be identified to remove any potential discriminatory impact. 52 391 Human Rights Committee, general comment No. 18 (1989), para. 13. 392 See, for instance, Human Rights Committee, Yaker v. France (CCPR/C/123/D/2747/2016), paras. 8.15–8.17. 393 See, for instance, Committee on the Elimination of Racial Discrimination, general recommendation No. 14 (1993), para. 2; general recommendation No. 30 (2005), para. 4; and general recommendation No. 32 (2009), para. 8. Although the general recommendations of the Committee on the Elimination of Racial Discrimination do not tend to use the term “objective and reasonable justification”, the Committee has identified proportionality and legitimate aim as central components of the justification test. The Committee has also referenced “objective criteria” and “reasonable justification” in related contexts. See, for instance, the Committee’s “common elements” of racial profiling (general recommendation No. 36 (2020), para. 13). 394 Committee on Economic, Social and Cultural Rights, general comment No. 20 (2009), para. 13. 395 In Domina and Bendtsen v. Denmark, the Committee on the Rights of Persons with Disabilities references the “objective and reasonable justification” test without further elaborating its requirements. In Noble v. Australia, the Committee acknowledged the relevance of the proportionality and legitimacy of measures adopted, while evaluating the difference in treatment within a “reasonableness” framework. In V.F.C. v. Spain, the Committee found that, while measures adopted by the State party pursued a legitimate aim, they were, nonetheless, discriminatory. See, respectively, Committee on the Rights of Persons with Disabilities, Domina and Bendtsen v. Denmark (CRPD/C/20/D/39/2017), para. 8.3; Noble v. Australia (CRPD/C/16/D/7/2012), paras. 8.2–8.3; and V.F.C. v. Spain (CRPD/C/21/D/34/2015), para. 8.10. 396 See, for instance, African Commission on Human and Peoples’ Rights, Good v. Republic of Botswana, communication No. 313/05, Decision, 12–26 May 2010, para. 219; Inter-American Commission on Human Rights, Morales de Sierra v. Guatemala, Case 11.625, Report No. 4/01, 19 January 2001, para. 31; and European Court of Human Rights, Biao v. Denmark, Application No. 38590/10, Judgment, 24 May 2016, para. 90. 397 Committee on the Elimination of Discrimination against Women, G.D. and S.F v. France (CEDAW/C/44/D/12/2007), para. 12.15. 398 See, for instance, Human Rights Committee, Yaker v. France (CCPR/C/123/D/2747/2016); Committee on Economic, Social and Cultural Rights, Trujillo Calero v. Ecuador (E/C.12/63/D/10/2015); Committee on the Rights of Persons with Disabilities, Domina and Bendtsen v. Denmark (CRPD/C/20/D/39/2017); and CERD/C/CHE/CO/7-9, para. 16. 399 Human Rights Committee, general comment No. 18 (1989), para. 13; Committee on the Elimination of Racial Discrimination, general recommendation No. 32 (2009), para. 8; Committee on Economic, Social and Cultural Rights, general comment No. 20 (2009), para. 13; Committee on the Rights of Persons with Disabilities, Domina and Bendtsen v. Denmark (CRPD/C/20/D/39/2017), para. 8.3; African Commission on Human and Peoples’ Rights, Good v. Republic of Botswana, communication No. 313/05, Decision, 12–26 May 2010, para. 219; and European Court of Human Rights, Biao v. Denmark, Application No. 38590/10, Judgment, 24 May 2016, para. 90. The Inter-American Commission tends to refer to unjustified “distinctions”, but the term “differential treatment” has also been used. See Inter-American Commission on Human Rights, San Miguel Sosa and others v. Venezuela, Case 12.923, Report No. 75/15, Merits, 28 October 2015, para. 169. 400 See the discussion of direct discrimination in section I.A.2(a) of this part. 401 See, illustratively, Committee on Economic, Social and Cultural Rights, general comment No. 16 (2005), para. 12; and Human Rights Committee, Fedotova v. Russian Federation (CCPR/C/106/D/1932/2010), para. 10.6. Likewise, the European Court of Human Rights has made clear that the justification test applies in respect of direct and indirect discrimination. See, for instance, European Court of Human Rights, Biao v. Denmark, Application No. 38590/10, Judgment, 24 May 2016, paras. 90–91. 402 See, for instance, European Court of Human Rights, D.H. and others v. the Czech Republic, Application No. 57325/00, Judgment, 13 November 2007, para. 176, in which the European Court of Human Rights noted that “racial discrimination is a particularly invidious kind of discrimination”, holding that “no difference in treatment which is based exclusively or to a decisive extent on a person’s ethnic origin is capable of being objectively justified”.