| 3.5 NON-DISCRIMINATION
AND EQUALITY:
Minorities have a right to non-discrimination and to equality. The principles of non-discrimination and equality are established firmly in international law. There are two types of discrimination – direct and indirect. Broadly speaking, direct discrimination has the purpose of discriminating and indirect discrimination has the (unintended) effect of discriminating. The International Covenant on the Elimination of All Forms of Racial Discrimination (ICERD) is the core international treaty on the right to non-discrimination. ICERD defines racial discrimination as: any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life (article 1.1). Many domestic laws extend non-discrimination to religious or linguistic groups. The Committee on the Elimination of Racial Discrimination (CERD), in reviewing State periodic reports has correlated religious or linguistic identity to other identities protected by ICERD, such as ethnicity. The ICERD requires the establishment of effective remedies for the prohibition and elimination of discrimination in the enjoyment of civil, political, economic, social and cultural rights (article 5). This includes the creation of national tribunals to combat discrimination (article 6) and public education to promote non-discrimination (article 7). The ICERD also prohibits incitement to hatred, discrimination or acts of violence against any group on the basis of race, colour or ethnic or other origin (article 4). Similarly, the ICCPR prohibits "Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence" (article 20.2). Importantly, ICERD allows for State 'special measures' in "social, economic, cultural and other fields" in order to achieve full and equal enjoyment of human rights for groups that face discrimination (articles 1.4 and 2.2). Frequently, these take the form of affirmative action policies (also known as 'positive discrimination'), such as those designed to improve access to employment or education but may also include efforts like targeted development interventions. These 'special measures' are not considered as discriminatory under international law if they aim to overcome the barrier posed by discrimination that prevents groups from equally accessing their rights. This is with the proviso that such measures are terminated once discrimination is no longer a factor. Acts that have the purpose of discriminating (i.e. direct discrimination) are easier to identify than acts that have the effect of discriminating (i.e. indirect discrimination). For example, a national policy for school fees may disproportionately impact poor minorities, thus indirectly discriminating in their access to education. Monitoring the impact of policies through the collection of disaggregated data is essential to prevent both direct and indirect discrimination.
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