EQUALITY BEFORE LAW FROM THE ASPECT OF ECONOMIC SOCIAL

AND CULTURAL RIGHTS

Elda Kurtagic

Abstract
Economic, social and cultural rights are human rights concerning the basic social and
economic conditions needed to live a life of freedom and dignity, relating to health, social security,
food, education, work and workers rights, housing, water, culture and a healthy environment.
Human rights are important for holding states and also for devoloping communities and global
frameworks convenient to participation, economic justice and equality . Equality is a fundamental
solicitude of human existence. Expressed in the principle of equality before law it requires that
those who come before the law have the right to be treated as beings of equal value and to be
given equal consideration. However, equal protection means that in some circumstances the law
can make rational discriminations.
Key Words: Economic Social and Cultural Rights, Equality Before Law, Human Rights, Rational
Discriminations


Akdeniz University, Faculty of Law, Public Law Department, Master Student, Antalya, 2017.

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 INTRODUCTION
The Universal Declaration of Human Rights was adopted in 1948 by The United
Nations General Assembly, outlining the basic civil, political, economic, social and cultural
rights that all human beings should enjoy. States must guarantee economic, social and
cultural rights without discrimination on the basic of grounds specified in the International
Covenant on Economic, Social and Cultural Rights , including race, colour, religion, political
or other opinion, language, sex , property, birth and national or social origin. Economic,
social and cultural rights unite migrants and indigenous people, women and man, youth and
elders, of all religions, races, political orientations and economic and social backgrounds.

Socio-economic rights and the rights to equality and non-discrimination are

enshrined in international human rights law. The fundamental rights to non-
discrimination and equality are guaranteed in all major regional and international
human rights treates. Article 1 of the Universal Declaration of Human Rights
provides that “all human beings are born free and equal in dignity and rights”. On the
other side, equality before law is the principle that each independent being must be
treated equally by the law and that all are subject to the same laws of justice.
Everyone who comes into contact with the court system should not only be treated
fairly and without discrimination, but also believe they are being treated without any
form of descrimination and fairly, because otherwise public confidence in the judical
system will be compromised. In certain special circumstances , the law can make
some reasonable discriminations.

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 ECONOMIC, SOCIAL AND CULTURAL RIGHTS
The final declaration of the World Conference on Human Rights (1993) in Vienna
not only reinforced the universality of human rights, it also aknowledged the indivisibility ,
and thereby the coherence and interdependency of the various human rights. On the level of
the United Nations , civil and political rights as well as economic, social and cultural rights
were entrenched in the Universal Declaration of Human Rights and later in two separate
pacts, namely the International Covenant on Economic, Social and Cultural Rights of 1966
and the International Covenant of Civil and Political Rights from 1966, both of which came
into force in 1976. More recent UN human rights core conventions, such as the Convention
on the Elimination of Discrimination against Women as well as the Convention on the
Rights of the Child and the Convention of the Rights of Persons with Disabilities incorporate
both kinds of right.1
The ideal of free human beings enjoying freedom from fear and want can only be
achieved if conditions are created whereby everyone may enjoy his economic, social and
cultural rights, as well as his civil and political rights2, like the right to free speech and the
right to a fair trial. Economic,social and cultural rights include the human right to work, the
right to physical and mental health, the right to education, the right to healthy environment,
the right to an adequate standard of living , including food, clothing and housing and the
right to social security. These rights are deeply connected. For example, the right to vote
means little if you are suffering from starvation, or the right to speak freely means little
without a basic education. Also, the right to work does not mean much if you are not allowed
to meet and assemble in groups to discuss work conditions.
The key principles associated with Economic, Social and Cultural Rights are: 1) To
respect economic, social and cultural rights; 2) To protect economic, social and cultural
rights; 3) To fulfil economic, social and cultural rights; 4) To seek and provide international
assistance and cooperation in the realisation of economic, social and cultural rights.
Economic, social and cultural rights are particularly important for assessing democracy for
several reasons. Observed from the perspective of an ordinary citizen, democracy is often
viewed through the prism of the ability of the state to ensure these rights. States are bound to
ensure minimum human rights. From this perspective, minimum core requirements include

1
Krennerich, Michael, Economic, Social and Cultural Rights- from hesitant recognition to extraterritorial
applicability, (http://menschenrechte.org/wp-content/uploads/2013/11/Article-by-Michael-Krennerich.pdf)
accessed: 19.05.2018.
2Economic and Social Rights in the Courtroom: A Litigator’s Guide to Using Equality and Non-Discrimination

Strategies to Advance Economic and Social Rights, London, Decembar, 2014.

3
available foodstuffs for the population, basic shelter and housing, essential primary health
care and the most basic forms of education. Every government has responsibilities regarding
its citizents. The human rights legal framework describes those responsibilities with the
following three obligations: 1) Respect- the obligation to respect requires governments to
refrain from interfering directly or indirectly with the enjoyment of economic, social and
cultural rights; 2) Protect- the obligation to protect requires governments to prevent third
parties , such as corporations, from interfering in any way with the enjoyment of economic,
social and cultural rights; 3) Fulfil- the obligation to fulfill requires governments to adopt
necessery measures to achieve the full realization of economic, social and cultural rights. 3

EQUALITY BEFORE LAW

Equality before law is a fundamental concept of legal systems. Everyone is equal
before the law without distinction as to language, race, colour, sex, political opinion,
religion and sect, philosophical belief, or any such grounds. All judicial officers take an oath
to administer the law without fear, favour, ill will or affection. They must treat all parties
fairly regardless disability, ethnicity, gender, age, sexuality, socio-economic backgrounds,
religious affiliation, size or natur of family, literacy level or any other such characteristic.4
Article 7 of the Universal Declaration of Human Rights states that “ All are equal before the
law and are entitled without any discrimination to equal protection of the law ”. The
guarantee of equality is provided by many world’s national constitutions, but, for example,
while most of constitutions guarantee equality regardless of race, only a few of them mention
the right to equality regardless of nationality. Equality before law is one of the basic
principles of liberalism. Clasical liberalism held that equal distribution of opportunities
required only equal allocation of basic rights of liberty, property and life. It means two
things: Equality before law and Rule of law. Rule of law means that the law is sovereign and
no person can declare himself above the law because that would be close to arbitrary rule.

Equality before the law is a tenet of some branches of feminism as well. In the 19 th
century , gender equality before the law was a radical goal, but later feminist views may hold
that formal legal equality is not enough to create actual and social equality between women
and men. An ideal of formal equality may penalize women for failing to conform to a male

3
(http://www.cesr.org/what-are-economic-social-and-cultural-rights) accessed: 19.05.2018.
4
(http://www.supremecourt.wa.gov.au/_files/equality_before_the_law_chapter1.pdf)
accessed:19.05.2018.

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norm, while an ideal of diffirent treatment may reinforce sexist stereotypes.5 Some radical
feminists , however, have opposed equality before law , because they think that it maintains
6
the weak position of the weak. However, equality before the law is sometimes
misunderstood. It does not necessarily mean that the law will treat all alike, it actually
determines that the law will be within the reach of everybody. It means equal protection and
equal subjection to law.

EQUALITY BEFORE LAW AND DISCRIMINATION

To ensure equality before law, judicial officers need to be aware of any possible
personal biases or prejudices about people from diffirent backgrounds. They need to ensure
that they do not treat anyone as a stereotype and make false suppositions about a particular
individual, based on what they believe other people from that individual’s group value or
how they behave. People from economically and socially disadvantaged backgrounds have
the greatest probability of being victims of personal crime or being involved in some crime.
Treating people differently because of their difference can result in discrimination. But
equaly, treating people as the same regardless of their difference can also result in
discrimination. 7 While it’s important to understand which groups of people are most likely
to experience discrimination, inequity or disadvantage, every individual is product of many
different influences. Characteristics such as gender, disability, ethnicity, religious affiliation,
socio-economic background and sexuality may or may not have an influence on any
individual’s values, behaviour or life experience. 8 Discrimination can be direct or indirect.
Direct discrimination is generally considered to be the most indvidious form of
discrimination. According to the Principle 5 of the Declaration of Principles on Equality,
direct discrimination occurs when for a reason related to one or more prohibited grounds a
person or group of persons is treated less favourably than another person or another group of
persons. There are many ways in which direct discrimination results in a certain group in
society being deprived of economic and social rights. As example, I will mention this Case:
Malawi Africa Association and Ors. v Mauritania (2000) AHRLR 149; Adjudicating Body:
African Commission on Human and People’s Rights.

5
Jaggar, Alison, Living in Contradictions: Controversies in Feminist Social Ethics, Boulder, CO: Westview
Press, 1994.
6Chamallas, Marta, Feminist Constructions of Objectivity: Multiple Perspectives in Sexual and Racial

Harassment Litigation, Texas Journal of Women and the Law , 1992, p. 95.
7Hopkins, Anthony, Equality Before the Law: The Importance of Understanding the Experience of ‘Others’ in

the Criminal Justice System, University of Canberra, 2015, p. 31.

8
(http://www.supremecourt.wa.gov.au/_files/equality_before_the_law_chapter1.pdf)
accessed:22.05.2018.

5
 The Commission heared a litany of complaints about the treatment of Black
Mauritanians by the government of Mauritania which was alleged to be discrimination based
on race in contravention of Article 2 of the ACHPR. Amongst other things the complainants
alleged that while in detention, they were subjected to inhumane treatment coupled with poor
nutrition and hygiene, in breach of their right to adequate healthcare under Article 16 of the
ACHPR. Within the community, it is alleged that Black Mauritanians were denied access to
employment and that those in the employment of government were not afforded the same
benefits as other racial groups in breach of Article 15. Further, Black Mauritanians were
evicted and displaced from their lands. Finding multiple violations of the ACHPR and clear
evidence of direct discrimination, the Commission stated: For a country to subject its own
indigenes to discriminatory treatment only because of the colour of their skin is un
unacceptable discriminatory attitude and a violation of the very spirit of the African Charter
and of the letter of its Article 2. Any form of direct discrimination on the grounds of
protected characteristic is prohibited in many jurisdictions. Also, we can speak about indirect
discrimination as well. For example, requiring all candidates for a job to have completed a
specific qualification has the potential to be indirectly discriminatory if, for example, the
qualification has only be available for a certain period and people over a certain age would
have gone through the education system before that form of qualification was introduced or
if the qualification is jurisdiction specific meaning candidates of other nationalities are less
likely to have received the qualification.9

Equality before law is a basic tenet of human rights. But, for example, access to
justice in the criminal justice system for people with disabilities who need communication
supports or who have complex and multiple support needs is a significant problem in every
jurisdiction in Australia. Whether a person with disability is the victim of a crime, accussed
of a crime or a witness, they are at increased risk of being disbelieved and disrespected and
of not enjoying equality before law. In 2013, the Australian Human Rights Commission
conducted a wide-ranging consultations process to identify how people with disabilities deal
with the barriers they experience to equality before law. First of all, the consultation process
revealed inability to access effective justice compounds disadvantages experienced by
people with disabilities. Many people with disabilities are left without protection and at risk
of ongoing violence. Also, people with disabilities experience high risk of being jailed and
are likely to have repeated contact with the criminal justice system. People with disabilities

9
(http://www.equalrightstrust.org/ertdocumentbank/ESR_Guide.pdf) accessed: 22.05.2018.

6
are not being heared because of perceptions they are unreliable, not credible or incapable of
being witnesses.10 But, we can also speak about some positive ways of discriminations. The
first thing that we need to say about discrimination is that discrimination is not necessarily
bad. This word simply means to chose one thing rather than another. On the other side, the
discrimination prohibited in law forbids harmful action against category of people. After a
category of people has been determined as “protected”, there can be no damaging actions
against people in this category . The principle of positive discrimination aims to reduce de
facto inequality and gives privileged treatment to people whose actual discrimination is
connected to gender, race, language, ethnicity, religion etc. Positive discrimination is
represented primarily in areas of education, business and employment. Sometimes it is also
used to help enforce gender equality in the working place. In Turkey, for example, in line
with the Turkish government’s recently launched “employment mobilization”, will be
created jobs where in particular women would benefit from positive discrimination. The
cabinet will also strive to help disabled people and ex-convicts join the workforce in the
campaign.

CONCLUSION
Human rights are interdependent, indivisible and universal. The main source of
economic, social and cultural rights is the International Covenant on Economic, Social and
Cultural Rights , which recognises in its preamble that: The ideal of free human beings
enjoying freedom from fear and want can only be achieved if conditions are created whereby
everyone may enjoy his economic, social and cultural rights , as well as his civil and
political rights. Everyone should be equal before law. However, legal equality becomes
pointless whitout equal opportunities to get justice. All may own equal rights, but all do not
have an equal power to secure those rights. Discrimination is present not only in public
structures, but also in civil society in general. Lawyers, judges and prosecutors have a duty
to turn domestic legal provisions on the right to equality and non-discrimination into
effective legal concepts. They also must consider cases of reasonable and positive
discrimination. If this were done effectively, there would be possibility of turning the world
into a friendlier and safer place for all.

10AustralianHuman Rights Commision, Equal Before the Law: Towards Disability Justice Strategies, February,
2014.
(https://www.humanrights.gov.au/sites/default/files/document/publication/2014_Equal_Before_the_Law.
pdf) accessed: 22.05.2018.

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and Racial Harassment Litigation, Texas Journal of Women and the Law, 1992, p.95.

Economic and Social Rights in the Courtroom: A Litigator’s Gudie to Using Equality and
Non-Discrimination Strategies to Advance Economic and Social Rights, London, Decembar,
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Hopkins,Anthony: Equality Before the Law: The Importance of Understanding the

Experience of ‘Others’ in the Criminal Justice System, University of Canberra, 2015, p.31.

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CO: Westview Press, 1994.

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extraterritorial applicability,
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accessed: 19.05.2018.

(http://www.cesr.org/what-are-economic-social-and-cultural-rights) 19.05.2018.

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