Introduction

Discrimination refers to the act of treating someone or something differently and is not necessarily negative. To say that someone is discriminating can mean that the person has good taste or judgement. However, discrimination can also mean that someone treats certain people unfairly because of those persons' characteristics. It is this second meaning of discrimination which concerns human rights law.

The Universal Declaration of Human Rights recognizes that: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. This simple statement has been repeated in national laws and constitutions and regional and United Nations treaties. But what does it mean in practice? Discrimination can occur in many forms: very open, laid down in law or hidden. It is often the result of prejudices, economic and social disparities, and religious and cultural misconceptions. If we are to combat discrimination, we have to combat these negative attitudes.

Discrimination on the basis of disability today affects a large portion of the world's population. It is one of the main problems persons with, or associated with, disabilities face. It manifests itself in different forms and can have disastrous effects on their lives and, by extension, on the rest of society. According to the Committee on Economic, Social and Cultural Rights, in its general comment No. 5 (1994):

[...] discrimination against persons with disabilities [has] a long history and [takes] various forms. They range from invidious discrimination, such as the denial of educational opportunities, to more “subtle” forms of discrimination such as segregation and isolation achieved through the imposition of physical and social barriers. [...] Through neglect, ignorance, prejudice and false assumptions, as well as through exclusion, distinction or separation, persons with disabilities have very often been prevented from exercising their economic, social or cultural rights on an equal basis with persons without disabilities. The effects of disability-based discrimination have been particularly severe in the fields of education, employment, housing, transport, cultural life, and access to public places and services. (emphasis added)

While the general comment focused specifically on economic, social and cultural rights, the same is true for civil and political rights. For example, in many countries, some persons with disabilities are still denied the right to vote as well as legal capacity to marry or enter into contracts to buy or sell property.

It is difficult to discuss discrimination without also considering the concept of equality. In human rights law, non-discrimination and equality are really two sides of the same coin. By combating discrimination, we hope to combat the underlying factors in society that lead to inequality. And if we deal with the factors leading to inequality, we hope to prevent discrimination.

However, the relationship between non-discrimination and equality raises confusion over what is meant by “equality”. When we refer to the term “equality”, we often think of things that are the same, identical or equivalent. However, when we talk about equality in the context of human rights, we are not necessarily saying that all people are identical or the same. Rather, we are saying that everyone has the same rights. In order to ensure that everyone has the same rights, two people might at times have to be treated differently because of their inherent difference (such as different sex, different linguistic heritage, different minority status or different impairments).

Treating two people differently in this way can lead to confusion and also to claims of discrimination. But this is not discrimination. It is merely an acknowledgement that people are different but that they have the same rights; to make equality a reality, different strategies might be needed for different people.