1. Equality and the prohibition of discrimination in the CCPR
Article on state obligations:
Article 2 (1)
Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, 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.

2. The prohibition of discrimination in the CCPR
Specifically on equal rights of men and women:
Article 3
The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.

3. Equality and prohibition of discrimination in the CCPR
Article 26 [Equality before the law and equal protection of the law]:
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

4. Prohibition of discrimination elsewhere in the CCPR
Article 4(1) [Derogations]:
In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

5. Prohibition of discrimination elsewhere in the CCPR
Article 14(1) [fair trial]
All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. [. . . ]
Article 23(4) [equality of spouses]
States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.
Article 27 [persons belonging to ethnic, religious or linguistic minorities]

6. Prohibition of discrimination elsewhere in the CCPR
Article 24(1) [protection of children]:
Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.
Article 25 [political rights]:
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country

7. Comparison with regional systems - ECHR
ECHR, Article 14 of the ECHR: not a freestanding prohibition of discrimination, always invoked in conjunction with a substantive rights of the convention.
Article 14
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

8. Prohibition of discrimination under the ECHR
Situation changed with the entry into force of protocol 12 of the ECHR (2000/2005, 14 ratifications)
Article 1 – General prohibition of discrimination
The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.

9. Other regional instruments
Article 1 of the AmCHR on state obligations, similar to Article 2(1) of the CCPR
Article 2 of the AfCHPR pon state obligations: similar to Article 2 (1) of the CCPR
Additionally in AfCHPR:
Article 3
Every individual shall be equal before the law.
Every individual shall be entitled to equal protection of the law.

10. Concepts Equality before the law (application of law equal to all)
Equal protection of the law (law cannot be
Prohibition of discrimination/protection against discrimination
De jure/de facto discrimination
Formal/substantive equality
Special measures

11. What constitutes discrimination?
CERD Article 1(1): In this Convention, the term "racial discrimination" shall mean 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.
CEDAW Article 1: For the purposes of the present Convention, the term "discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

12. What constitutes discrimination?
The CCPR includes no definition of discrimination
General Comment No. 18, para. 7: … the Committee believes that the term "discrimination" as used in the Covenant should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms
Intent or purpose: often direct discrimination
Adverse effect: often indirect discrimination
Criteria in the case law: A distinction which
a) has no objective and reasonable justification,
b) does not serve a legitimate aim, or
c) is disproportionate (means/aim)

13. Indirect discrimination
Althammer v. Austria (2003), para. 10.2:
The authors claim that that they are victims of discrimination because the abolition of the household benefits affects them, as retired persons, to a greater extent than it affects active employees. The Committee recalls that a violation of article 26 can also result from the discriminatory effect of a rule or measure that is neutral at face value or without intent to discriminate. However, such indirect discrimination can only be said to be based on the grounds enumerated in Article 26 of the Covenant if the detrimental effects of a rule or decision exclusively or disproportionately affect persons having a particular race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

14. Indirect discrimination
(cont.) Furthermore, rules or decisions with such an impact do not amount to discrimination if they are based on objective and reasonable grounds. In the circumstances of the instant case, the abolition of monthly household payments combined with an increase of children’s benefits is not only detrimental for retirees but also for active employees not (yet or no longer) having children in the relevant age bracket, and the authors have not shown that the impact of this measure on them was disproportionate. Even assuming, for the sake of argument, that such impact could be shown, the Committee considers that the measure, as was stressed by the Austrian courts (paragraph 2.3 above), was based on objective and reasonable grounds.

15. Interpretation of the prohibition under the CCPR
CCPR art. 26: a freestanding right of non-discrimination
Zwaan-de Vries v. the Netherlands (1987)
Non-discrimination in relation to economic and social rights is covered by the CCPR irrespective of the existence of the CESCR
Married women were subject to discrimination when applying for unemployment benefits
Focus on gender-based discrimination
Compare with Danning v. the Netherlands (180/1984) decided at the same time, differentiation between married and unmarried couples constituted no discrimination as the decision to marry or not to marry, with all benefits and responsibilities that follow, were up to the persons

16. Other cases of discrimination based on sex or gender
Sandra Lovelace v. Canada (1981)
Discriminatory exclusion of women from membership in an Indian tribe for marrying an outsider was a violation of art. 27 (protection of the rights of persons belonging to ethnic, religious or linguistic minorities; other violations subsumed under this finding (para. 18)

17. Other cases of discrimination based on sex or gender
Ato del Avellanal v. Peru (1988)
Violation of arts. 3, 14.1 and 26 established when a married women could not sue in court in relation to matrimonial property
Müller and Engelhard v. Namibia (2002)
More cumbersome conditions for choosing the woman’s surname as the family’s common one is discrimination; the notion of “gender” used

18. General Comment No. 28 (2000) A gender-sensitive guide to the ICCPR
Starting-point in article 3
The right to life looks different in a gender perspective (para. 10)
Much attention to discrimination by private persons or entities (e.g., para. 31)
Intersectional discrimination addressed (para. 30)
Discrimination against women within minority communities addressed (paras. 28 and 32)

19. Other issues and cases under CCPR art. 26
Nationality and reciprocity-based arrangements
Gueye et al v. France (1989): nationality as “other status”
J. and J.H. van Oord v. the Netherlands (inadmissibility decision, 1997) Differences in pensions paid to Dutch citizens living in the USA, compared to those living in some other countries was not held discriminatory (separately negotiated bilateral treaties which necessarily are based on reciprocity):
“According to the authors, the fact that former Dutch citizens now living in Australia, Canada and New Zealand benefit from other privileges, entails discrimination. The Committee observes, however, that the categories of persons being compared are distinguishable and that the privileges at issue respond to separately negotiated bilateral treaties which necessarily reflect agreements based on reciprocity. The Committee recalls its jurisprudence that a differentiation based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of article 26.

20. Karakurt v. Austria (2002): use of the reciprocity argument is subject to limits:
“Although the Committee had found in one case (N°. 658/1995, Van Oord v. The Netherlands) that an international agreement that confers preferential treatment to nationals of a State party to that agreement might constitute an objective and reasonable ground for differentiation, no general rule can be drawn there from to the effect that such an agreement in itself constitutes a sufficient ground with regard to the requirements of article 26 of the Covenant. Rather, it is necessary to judge every case on its own facts. With regard to the case at hand, the Committee has to take into account the function of a member of a work council, i.e., to promote staff interests and to supervise compliance with work conditions (see para. 3.1). In view of this, it is not reasonable to base a distinction between aliens concerning their capacity to stand for election for a work council solely on their different nationality. Accordingly, the Committee finds that the author has been the subject of discrimination in violation of article 26.” (para.2)

21. Other issues and cases under CCPR art. 26
Different grounds of discrimination
Danning v. the Netherlands (1987), Hoofdman v. the Netherlands (1998): different treatment of married and unmarried persons is not discriminatory if based on free choice of the individuals to marry or not to marry (denial of widowers benefit on the basis of not being married to his deceased partner).
Schmitz-de Jong v. the Netherlands (2000). The HRC held as objective and reasonable that only persons over 60 were entitled to a senior citizens’ pass as spouse to a pensioner above 65. Applicant claimed a violation of art. 26, as she, being 44 yrs of age, had been refused the pass on the ground of her age. (para 7.2)

22. Other issues and cases under CCPR art. 26
Love et al. v Australia (2003): mandatory retirement age may constitute discrimination on account of age - but not in this case (airline pilots):
“In the present case, as the State party notes, the aim of maximising safety to passengers, crew and persons otherwise affected by flight travel was a legitimate aim under the Covenant. As to the reasonable and objective nature of the distinction made on the basis of age, the Committee takes into account the widespread national and international practice, at the time of the author's dismissals, of imposing a mandatory retirement age of 60. [. . . ] In the circumstances, the Committee cannot conclude that the distinction made was not, at the time of Mr Love's dismissal, based on objective and reasonable considerations. Consequently, the Committee is of the view that it cannot establish a violation of article 26.” (para 8.3)
Age falls under “other status”

23. Other issues and cases under CCPR art. 26
Toonen v. Australia (1994): sexual orientation falls under “sex”
The State party has sought the Committee's guidance as to whether sexual orientation may be considered an "other status" for the purposes of article 26. [. . . ]The Committee confines itself to noting, however, that in its view, the reference to "sex" in articles 2, paragraph 1, and 26 is to be taken as including sexual orientation.(para 8.7)
Since the Committee has found a violation of Mr. Toonen's rights under articles 17, paragraph 1, and 2, paragraph 1, of the Covenant requiring the repeal of the offending law, the Committee does not consider it necessary to consider whether there has also been a violation of article 26 of the Covenant. (para. 11)

24. Other issues and cases under CCPR art. 26
Young v. Australia (2003): sex/sexual orientation: “It recalls that in previous communications the Committee found that differences in the receipt of benefits between married couples and heterosexual unmarried couples were reasonable and objective, as the couples in question had the choice to marry with all the entailing consequences. [. . . ] In the instant case, it is clear that the author, as a same sex partner, did not have the possibility of entering into marriage. Neither was he recognized as a cohabiting partner of Mr. C, for the purpose of receiving pension benefits, because of his sex or sexual orientation. The Committee recalls its constant jurisprudence that not every distinction amounts to prohibited discrimination under the Covenant, as long as it is based on reasonable and objective criteria. The State party provides no arguments on how this distinction between same-sex partners, who are excluded from pension benefits under law, and unmarried heterosexual partners, who are granted such benefits, is reasonable and objective, and no evidence which would point to the existence of factors justifying such a distinction has been advanced. (para 10.4)”

25. The broadening scope of non-discrimination
Waldman v. Canada (1999)
if a State party chooses to provide public funding to religious schools, it should make this funding available without discrimination: “On the basis of the facts before it, the Committee considers that the differences in treatment between Roman Catholic religious schools, which are publicly funded as a distinct part of the public education system, and schools of the author's religion, which are private by necessity, cannot be considered reasonable and objective. “ (para 10.5)
Compare e.g. with Blom v. Sweden (191/1985), on the alleged incompatibility of the Swedish regulations denying education allowances from pupils of private schools not under state supervision:
“The State party's educational system provides for both private and public education. The State party cannot be deemed to act in a discriminatory fashion if it does not provide the same level of subsidy for the two types of establishments, when the private system is not subject to State supervision.” (para10.3)

26. The broadening scope of non-discrimination
Kavanagh v. Ireland (2001)
first sentence of art. 26 taken as an independent right to equality before the law and equal protection of the law. No “status” or comparison was required.
no requirement for the author to demonstrate adverse effect (no violation of article 14 was found), sufficient that the State party failed to demonstrate that a distinction was based upon reasonable and objective grounds
“Under article 26, the State party is therefore required to demonstrate that such a decision to try a person by another procedure was based upon reasonable and objective grounds.” (para 10.2)
“The Committee considers that the State party has failed to demonstrate that the decision to try the author before the Special Criminal Court was based upon reasonable and objective grounds. Accordingly, the Committee concludes that the author's right under article 26 to equality before the law and to the equal protection of the law has been violated.” (para 10.3)

27. The broadening scope of non-discrimination
Pezoldova v. the Czech Republic (2002)
Arbitrariness is discrimination
Background: no right to property; no right to restitution of property; but: any restitution scheme must be nondiscriminatory
“The question before the Committee is whether the author was excluded from access to an effective remedy in a discriminatory manner. According to article 26 of the Covenant, all persons are equal before the law and every person has the right to equal protection of the law.” (para.11.2)
“It is not the task of the Committee but of the courts of the State party to decide on questions of Czech Law. The Committee finds, however, that the author was repeatedly discriminated against in being denied access to relevant documents which could have proved her restitution claims. The Committee is, therefore, of the view that the author's rights under article 26 in conjunction with article 2 of the Covenant were violated.” (para 11.6)

28. Next step: failure to treat differently as discrimination?
Thlimmenos v. Greece, Eur.Court of HR (2000)
“The Court has so far considered that the right under Article 14 not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification… However, the Court considers that this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.”

29. Positive or special measures/ affirmative action
The ICCPR has no provision on special measures (compare to CERD art 1.4 and CEDAW art. 4.1)
General Comment No. 18, para. 10
The Committee also wishes to point out that the principle of equality sometimes requires States parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant. For example, in a State where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights, the State should take specific action to correct those conditions. Such action may involve granting for a time to the part of the population concerned certain preferential treatment in specific matters as compared with the rest of the population. However, as long as such action is needed to correct discrimination in fact, it is a case of legitimate differentiation under the Covenant