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official recognition of minority schools, in turn leading to barriers to the eligibility of students
from minority schools for university;7 and the absence of reference to minority or indigenous
culture and history in school curricula.8
32. Similar examples abound in other areas, such as housing, employment, access to justice
and relations with law enforcement. Furthermore, the Special Rapporteur recalls that the
prohibition of non-discrimination has two main dimensions: not only banning non-discrimination
itself, which would be required in the examples described above, but also prohibiting policies
and actions that are prima facie non-discriminatory, but which in practice have discriminatory
effects. Such effects can arise from the discriminatory application of otherwise race-neutral
measures or the design of seemingly race-neutral measures that in fact have a disproportionate
impact on the situation of minorities.
33. A clear example of non-discriminatory policies with a disproportionate impact on
minorities relates to drug enforcement actions. In many countries, there is a large gap between
the distribution of drug users among the general population and the distribution of persons
convicted of drug offences, which is heavily skewed towards minorities. This generally indicates
that drug policies, though non-discriminatory in practice, are implemented in a discriminatory
manner that targets minorities, such as by a heavier police presence in areas predominantly
inhabited by minorities.
34. In other instances, even when the application of a given policy is race-neutral, its design
may lead to a disproportionate impact on minorities; for example, different sanctions are
foreseen for drugs that have similar psychotropic and physiological effects. The classic example
is that between crack cocaine and powder cocaine; due to its cheaper price, crack is more widely
consumed by members of minorities. Therefore a disparity in sentences, with longer sanctions
for crack consumption, also tends to disproportionately affect such minorities.9
35. With regard to the promotion of non-discrimination, the Special Rapporteur welcomes in
particular the general recommendation on non-discrimination currently being drafted by the
Committee on Economic, Social and Cultural Rights. This broader and overarching general
comment will further complement the work of the Committee on non-discrimination for specific
rights, such as housing (general comments No. 4 and 7), food (general comment No. 12),
education (general comment No. 13), health (general comment No. 14), water (general comment
No. 15), work (general comment No. 18) and social security (general comment No. 19). As such,
it will provide more clarity and precision for policymakers. However, the Special Rapporteur
would like to stress that most cases of discrimination occur in clear-cut realms of the law and are
therefore caused not by ambiguous assessment of a State’s obligations, but rather by explicit
policies targeting minorities.
7
E/CN.4/2006/16/Add.2, para. 57.
8
E/CN.4/2005/18/Add.2, para. 40.
9
A/HRC/11/36/Add. 3, para. 87.