“CONSTITUTIONAL REFORMS FACING UPDATE OF INTERNTIONAL PUBLIC LAWS”

Abstract

The fight against discrimination and social exclusion is an essential part of the process of democratic consolidation of a society; inactivity in the fight against discrimination in the long term leads to xenophobic and racist acts. The principle of non-discrimination and equality belong to the field of ius cogens both domestic and international order are based on them and are fundamental principles that permeate the rest of the rules, the fact that they are regulated in many international instruments is proof of their Universality. Paradoxically, today's stricter controls on

discrimination measures.

The grounds for discrimination that trigger international protection are: (a) sex or gender; b) sexual orientation; c) race, color of skin, offspring or ethnic origin; d) nationality; e) age; f) religion or creed; g) disability; h) Language; (i) political opinion; j) family, marital or parental status and can come from both private and public agents. However, and as pointed out in the ruling that ruled the Irish Farmers' Case ¨ fundamental rights are not absolute prerogatives but should be taken into consideration in view of their role within the Society. ¨ In any case, it has not been so easy to take it to a program of supranational harmonization and can speak of a hierarchy in the norms of equality by which the right not to be discriminated is well consolidated in some areas but weak and fragmented in others.

Non-discrimination along with equality before the law represents a basic principle in the protection of human rights. Article 2.1 of the ICCPR establishes the obligation of States parties to respect and guarantee to all individuals within their territory and subject to their jurisdiction the rights recognized in the Covenant without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Non-discrimination is such a basic principle that even where human rights treaties empower Member States to adopt provisions suspending certain rights in exceptional situations, it is required that they do not involve any discrimination based solely on race, color, sex, language, religion or social origin.

Because of its fundamental nature, the principle of non-discrimination and equality before the law has led to the adoption of specific treaties such as the International Convention on the Elimination of All Forms of Racial Discrimination; the Convention on the Elimination of All Forms of Discrimination against Women; the Convention on Discrimination in Employment and Occupation; the ILO Convention on Equal Remuneration and the UNESCO Convention against Discrimination in Education, among others. 

We adopt as a definition of discrimination what exists in the most universally accepted instrument, such as the International Covenant on Civil and Political Rights, which develops, in various articles, 2, 3, 20 (2), 8, 14, Article 2 of the Declaration Universal Declaration of Human Rights, specifically article 26 states:

¨ All persons are equal before the law and are entitled without discrimination to equal protection of the law. In this respect, the law shall prohibit all discrimination and guarantee to all persons equal and effective protection against any discrimination based on race, color, sex, language, religion, political or other opinion, national or social origin, birth or other status. "The Jurisprudence of the Human Rights Committee considers that the content of this article extends to all rights and freedoms recognized by a particular State. ¨

As a definition of Equality in International Law, we adopt the one offered in the particular opinion of Judge Tanaka in the South West African Subject, where he distinguishes between discrimination and differentiation in the context of Human Rights:

¨ The principle of equality before the law does not mean (...). Absolute equality, that is, equality of treatment without regard to specific individual circumstances, if not relative equality, this is the principle of equal treatment for those who are equal, and unequal treatment for the unequal. Treating different domains differently according to their difference is not only allowed if it is not also necessary. ¨

A) Conceptual Concepts: Legal concept of Discrimination.

(a) De facto discrimination or indirect discrimination. It is produced when, a common practice, a norm, political action that in principle does not represent discrimination in itself but its results or effects if they constitute disadvantage for a group of people.

b) Positive discrimination or Discrimination au rebours, in reverse. The first also known as affirmative action is associated with the second and consists of a difference of treatment that reverses the mechanism of previous discrimination. It is defined as the set of measures put in place for the first time by the United States

from the late 1960s onwards by federal agencies that accorded preferential treatment to minority groups and consisted of electing a candidate from a minority group provided that at least one member belonging to the non-minority group had a higher qualification. DWORKIN felt that these policies were aimed at increasing both the number and place of blacks and other minorities in the different professions by giving them a preference for recruitment, promotion and admission to Universities and professional schools ¨

It is also recognized in paragraph 3 of the Preamble to Protocol 12 to the European Convention on Human Rights that it reiterates the importance of positive action, although it lacks legal force.

¨ Resolved to take further measures to promote equality of all by means of a collective guarantee establishing the general prohibition of discrimination in the framework of the European Convention for the Safeguarding of Human Rights and Fundamental Freedoms signed in Rome on 4 November of 1950. ¨