Non-discrimination and equality retain a very fundamental intrinsic and instrumental value for the protection of ESC rights. Indeed, non-discrimination and equality, as well as the equal protection of the law are recognized as rights in and of themselves in international law and most domestic normative frameworks. In addition, the particular obligation to guarantee the enjoyment of all other rights without discrimination is a cross-cutting and immediate obligation of States under the international law pertaining to ESC rights.
The following case-law examples illustrate how judicial bodies in various jurisdictions have heavily relied on the prohibition of discrimination and on the equality provisions of their domestic law to protect ESC rights, especially in the absence of a constitutional or statutory guarantee of these rights, and how they have sanctioned discriminatory laws and practices in relation to various other ESC rights, and in relation to various prohibited grounds for discrimination.
Cases concerning discrimination against persons with disability
- → Decision of T-051/11 Julio David Perez v. Mayor’s Office of Monteria. File T-2650185
- → Western Cape Forum for Intellectual Disability v. Government of the Republic of South Africa, Government of the Province of Western Cape, Case no: 18678/2007
- → Decision T-974/10
- → Decision T-841
- → Decision T-291/09
- → Kong Yunming v. Director of Social Welfare, FACV No. 2
- → John Doe et al. v. Regional School Unit 26, No. 7455/2001, Decision 2014 ME 11
- → Control of constitutionality – interlocutory action (Giudizio di legittimità costituzionale in via incidentale)
→ Western Cape Forum for Intellectual Disability v. Government of the Republic of South Africa, Government of the Province of Western Cape, Case no: 18678/2007
Cases concerning gender discrimination
Cases dealing with substantive equality
Cases concerning discrimination on the ground of sexual orientation and gender identity
The ICJ has published a variety of materials and developed case-law databases that may be searched online and includes several cases in which judicial bodies have protected right-holders against discrimination in their enjoyment of ESC rights on the ground of their sexual orientation and gender identity. Among these are cases in the field of employment, social benefits and education.
Cases concerning discrimination against non-nationals/migrants
→ Control of constitutionality – interlocutory action (Giudizio di legittimità costituzionale in via incidentale)
- 241. ICJ Justiciability Study, pp. 54-61.↵
- 242. For more details on the principles of non-discrimination and equality see Chapter 2, section III. 1.1 of the present Guide.↵
- 243. For case law examples concerning migrants and decisions finding discrimination on the grounds of national origin or legal status, see the ICJ Practitioners’ Guide on migration and human rights, accessible (in English, Italian and Greek) at: https://www.icj.org/practitioners-guide-on-migration-and-international-human-rights-law-practitioners-guide-no-6/. For cases concerning the discrimination on the ground of sexual orientation and gender identity (SOGI) in the area of employment, inheritance and social benefits, see the ICJ SOGI Caselaw Database at: https://www.icj.org/sogi-un-database/ and https://www.icj.org/sogi-casebook-introduction/↵
- 244. All materials are accessible at: https://www.icj.org/themes/sexual-orientation-and-gender-identity/. The case-book database is accessible at: https://www.icj.org/sogi-casebook-introduction/ ↵