PRINCIPLE OF NON-DISCRIMINATION AND

FUNDAMENTAL FREEDOMS

KIMBERLY MAE MIRANTES

MS-CRIM 1
INTRODUCTION

The concept of non-discrimination is important in many

aspects of counter-terrorism operations since the exercise
of every State's powers in response to terrorist threats like
search and seizure, surveillance or arrest, restrictions on
fundamental freedoms must be exercised in a non-
discriminatory manner.
DEFINITION OF TERMS
COUNTER-TERRORISM. Incorporates the practice, military tactics, techniques, and strategy that
government, military, law enforcement, business, and intelligence agencies use to combat or prevent
terrorism. 

DIRECT DISCRIMINATION. Occurs when a person, on account of one or more of the prohibited
grounds, is treated less favorably than someone else in comparable circumstances.

FUNDAMENTAL FREEDOM. Are your most basic rights under the Charter such as freedom of
conscience and religion; freedom of thought, belief, opinion and expression; freedom of peaceful assembly;
and freedom of association.

INDIRECT DISCRIMINATION. Occurs when a practice, rule, or requirement that is

outwardly 'neutral' , that is, not based on one of the prohibited grounds of distinction, has a
disproportionate impact on particular groups defined by reference to one of these grounds.
PRINCIPLE OF NON-DISCRIMINATION

ARTICLE 2 INTERNATIONAL COVENANT ON CIVIL AND

POLITICAL RIGHTS (ICCPR)
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, color, sex, language, religion, political or other opinion, national
or social origin, property, birth or other status.
 IN DETERMINING WHETHER OR NOT DIFFERENTIAL TREATMENT IN COUNTER-
TERRORISM MEASURES CONSTITUTES DISCRIMINATION, A COURT OR OTHER
AUTHORITY WILL GENERALLY CONSIDER THE FOLLOWING ISSUES:

 Does the measure give rise to differential treatment on a prohibited ground

 If so, does the measure pursue a legitimate aim, such as the prevention of
disorder and crime?
 Is there a reasonable and objective justification for the difference in
treatment?
 Is the differential treatment necessary to achieve the aim pursued?
FUNDAMENTAL FREEDOMS
 FREEDOM OF RELIGION
Is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or
belief in teaching, practice, worship, and observance.
 FREEDOM OF EXPRESSION
 It enables the free exchange of ideas, opinions and information and thus allows members of society to form their
own opinions on issues of public importance.
 FREEDOM OF ASSEMBLY
Is the individual right or ability of people to come together and collectively express, promote, pursue, and defend
their collective or shared ideas.
 FREEDOM OF ASSOCIATION
It ensures that every individual is free to organise and to form and participate in groups, either formally or
informally.
FREEDOM OF RELIGION

INTERNATIONAL LEGAL FRAMEWORK

 ARTICLE 18 (1) INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS - Everyone
shall have the right to freedom of thought, conscience and religion.

 ARTICLE 18 (3) INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS - Freedom

to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and
are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of
others.

 ARTICLE 19 (3) INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS - It does

not permit limitations to be made on grounds of national security, since religious beliefs and their
external manifestation should never be considered to pose security threats, per se.
FREEDOM OF RELIGION
REGIONAL INSTRUMENTS AND APPROACHES
 THE AFRICAN REGION – Article 8 of African Charter on Human and Peoples' Rights 1981 clearly states
that freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may,
subject to law and order, be submitted to measures restricting the exercise of these freedoms.

 THE EUROPEAN REGION - European Court on Human Rights, coming within the scope of article 9(1)
guarantees, states that everyone has the right to freedom of thought, conscience and religion; this right
includes freedom to change his religion or belief and freedom, either alone or in community with others and
in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

 THE INTER-AMERICAN REGION – Article 12 (1) of the  American Convention on Human Rights seeks
to protect the freedom to maintain or to change one's religion or beliefs, and freedom to profess or
disseminate one's religion or beliefs, either individually or together with others, in public or in private.
FREEDOM OF RELIGION

REGIONAL INSTRUMENTS AND APPROACHES

 THE ASIAN REGION – ASEAN Human Rights Declaration guarantees that every
person has the right to freedom of thought, conscience and religion. All forms of
intolerance, discrimination and incitement of hatred based on religion and beliefs shall
be eliminated.

 THE MIDDLE EAST AND GULF REGIONS -  Article 18 (a) of the Arab Charter on
Human Rights 2004  states that everyone shall have the right to live in security for
himself, his religion, his dependents, his honor and his property.
FREEDOM OF RELIGION
LIMITATIONS
 THE AFRICAN REGION -  held that certain restrictions may be imposed in the interest of
maintaining law and order, so long as any limitations are both necessary and reasonable.

 THE INTER-AMERICAN REGION -permits limitations to be made to the manifestation of

religion on public safety, though not national security, grounds. Such manifestations "may be subject
only to the limitations prescribed by law that are necessary to protect public safety, order, health, or
morals, or the rights or freedoms of others.

 THE EUROPEAN REGION - provides for the same limitations as the American Charter, namely
that freedom to manifest one's religion or beliefs shall be subject only to such limitations as are
prescribed by law and are necessary in a democratic society in the interests of public safety, for the
protection of public order, health or morals, or for the protection of the rights and freedoms of others.
FREEDOM OF EXPRESSION

INTERNATIONAL LEGAL FRAMEWORK

 ARTICLE 19 (1 & 2) OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL
RIGHTS - everyone shall have the right to hold opinions without interference and that everyone shall
have the right to freedom of expression; this right shall include freedom to seek, receive and impart
information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form
of art, or through any other media of his choice

 ARTICLE 19 (3) OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS -

provides that where provided for by law and where necessary limitations on article 19 rights may be
made to "respect the rights or reputations of others", or for the protection of national security or of
public order or of public health or morals.
 FREEDOM OF EXPRESSION
REGIONAL INSTRUMENTS AND APPROACHES
 THE AFRICAN REGION – article 9(1) of the African Charter simply states that every individual
shall have the right to receive information" and that every individual shall have the right to
express and disseminate his opinions within the law.
 THE EUROPEAN REGION - Article 10 of the European Convention on Human Rights provides
that: everyone has the right to freedom of expression. This right shall include freedom to hold
opinions and to receive and impart information and ideas without interference by public authority
and regardless of frontiers.
 THE INTER-AMERICAN REGION – Article 13 (1) of the American Convention on Human
Rights provides that everyone has the right to freedom of thought and expression. This right
includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of
frontiers, either orally, in writing, in print, in the form of art, or through any other medium of
one's choice
FREEDOM OF EXPRESSION

REGIONAL INSTRUMENTS AND APPROACHES

 THE ASIAN REGION –  Article 23 of the ASEAN Human Rights Declaration states that
every person has the right to freedom of opinion and expression, including freedom to hold opinions
without interference and to seek, receive and impart information, whether orally, in writing or through
any other medium of that person's choice.

 THE MIDDLE EAST AND GULF REGIONS -  Article 30 (1) of the Arab
Charter provides that: everyone has the right to freedom of thought, conscience and religion and no
restrictions may be imposed on the exercise of such freedoms except as provided for by law.
FREEDOM OF ASSEMBLY

INTERNATIONAL LEGAL FRAMEWORK

 ARTICLE 21 OF THE INTERNATIONAL COVENANT ON CIVIL AND
POLITICAL RIGHTS - States that the right of peaceful assembly shall be recognized."

 ARTICLE 21 OF THE INTERNATIONAL COVENANT ON CIVIL AND

POLITICAL RIGHTS – Also provides that the right may be restricted where the
accompany measures are in conformity with the law and are necessary in a democratic
society in the interests of national security or public safety, public order, the protection
of public health or morals or the protection of the rights and freedoms of others.
FREEDOM OF ASSEMBLY

REGIONAL INSTRUMENTS AND APPROACHES

 THE AFRICAN REGION – Article 11 of the African Charter guarantees the right to
freely assemble to everyone. It further provides that the exercise of this right shall be
subject only to necessary restrictions provided for by law in particular those enacted
in the interest of national security, the safety, health, ethics and rights and freedom of
others.

 THE EUROPEAN REGION -  Article 11 of the European Convention on Human

Rights provides that everyone has the right to freedom of peaceful assembly and to
freedom of association with others, including the right to form and to join trade
unions for the protection of his interests.
FREEDOM OF ASSEMBLY

REGIONAL INSTRUMENTS AND APPROACHES

 THE INTER-AMERICAN REGION – Article 15 of the American Convention on
Human Rights provides that the right of peaceful assembly, without arms, is
recognized.

 THE MIDDLE EAST AND GULF REGIONS – Article 24 (6) of the Arab Charter on
Human Rights 2004 , the relevant principle is article 24(6) which simply provides that
every citizen has the right to freedom of association and peaceful assembly.
FREEDOM OF ASSOCIATION

INTERNATIONAL LEGAL FRAMEWORK

 ARTICLE 22 (1) OF THE INTERNATIONAL COVENANT ON CIVIL AND
POLITICAL RIGHTS - provides that everyone shall have the right to freedom of
association with others, including the right to form and join trade unions for the
protection of his interests.
 FREEDOM OF ASSOCIATION

REGIONAL INSTRUMENTS AND APPROACHES

 THE AFRICAN REGION –  Article 10 (1) of the African Charter states that
every individual shall have the right to free association provided that he abides
by the law.

 THE INTER-AMERICAN REGION -  Article 16 of the American Convention

on Human Rights provides that everyone has the right to associate freely for
ideological, religious, political, economic, labor, social, cultural, sports, or other
purposes.
FREEDOM OF ASSOCIATION

REGIONAL INSTRUMENTS AND APPROACHES

 THE EUROPEAN REGION – Article 11 of the European Convention on Human Rights
provides for both freedom of assembly and of association as was examined in the
previous section.

 THE MIDDLE EAST AND GULF REGIONS – Article 24 (5) of the Arab Charter on
Human Rights articulates the right of every citizen to "freely form and join associations
with others", as well as article 24(6) which specifies the right to "freedom of association
and peaceful assembly.