15
Jndeed, according to Articles 2 and 3 of the Charter, the principle of nondiscrimination applies only to the rights guaranteed in the Charter,
whereas the principles of equality apply to all the rights protected in the
municipal system of a State party even if they arc not recognized in the
Charter.
37. In the instant case, the Court should have started its reasoning by clearly
indicating this distinction and stating that the alleged discriminations
actually relate to two rights guaranteed in the Charter. After having
established that there actually exists a violation of these two rights and
that various groups of peoples were given a different treatment, the Court
should have underlined that any difference of treatment does not
necessarily constitute a discrimination. Indeed, as the Human Rights
Committee of the United Nations indicated in its General Comment of
Article 26 of the Second International Covenant, "differentiation is not
discrimination if it is based on objective and reasonable criteria and if the
1
aim is legitimate in light of the Covenant" (see a similar statement of the
European Court of Human Rights in the case Lithgow v. United
Kingdom 2).
38. It is only after having laid down these premises, that the Court should
have dealt, as it did in Paragraph 119 of the Judgment, with the objective
1
General Comment No.18, Non-Discrimination, adopted by the Committee on 10 November
1989 during its 371h Session, Paragraph 13; see also, for example, its Views adopted on 15
July 2002 and relating to Communication No. 932/2000, !Iuman Rights Committee, Doc:.
CCPR./C/75/D/93212000, 26 July 2002, pp. 21-24, Paragraphs 12.2-13.18.
2
According to the European Court, for the purpose of Article 14 of the European
Convention, a difference of treatment is discriminatory if it «has no objective or reasonable
justification», that is, if it does not pursue a «legitimate aim», Application No 9063/80,
Judgment of 8 July 1986, Series A, No. 102, Paragraph I 77, European /Iuman Rights Report,
1986, No. 8, p. 329.