Nondiscrimination as a Universal Human Right
Aaron Xavier Fellmeth
Arizona State University (ASU) - Sandra Day O'Connor College of Law
February 28, 2009
Yale Journal of International Law, Vol. 34, 2009
All of the major international human rights instruments guarantee a nondiscrimination right in some form. The uniqueness of the nondiscrimination right arises from two seemingly contradictory aspects of the right. On one hand, the right to equal treatment is a necessary and central component of any coherent ethical system based a priori on the value of human beings. On the other hand, it would be impossible and in any case undesirable for the law even to approach treating all human beings equally. This is the challenge of the nondiscrimination right in a nutshell.
There are several ways to approach discrimination as an expression of the right to equality under law. One approach identifies a limited number of grounds on which distinctions made, supported, or tolerated by a state government will be considered presumptively illegitimate. Alternatively, distinctions on any ground may be considered in need of justification under some standard of review if they result in the denial of a recognized human right, as provided for in Article 14 of the European Convention on Human Rights. Finally, one might consider any governmental distinction between persons on any grounds to be presumptively in need of justification. This paper examines these different approaches to the nondiscrimination right and explores some of their important consequences.
Keywords: human rights, international law, jurisprudence, legal theory
Date posted: February 28, 2012