Non-discrimination Clause Research Articles

A Call for Indiscriminate Caritas: Proposed Nondiscrimination Clause in the Ethics Code of the Catholic Psychotherapy Association

A Call for Indiscriminate <i>Caritas:</i> Proposed Nondiscrimination Clause in the Ethics Code of the Catholic Psychotherapy Association

중재조항의 물적 관할 제한과 관련된 포괄적 보호 조항 및 최혜국대우조항 적용에 관한 연구

Purpose: This study analyses the umbrella clause and the most favored nation clause by focusing on A11Y Ltd. v. Czech Republic issued under international commercial arbitration.&#x0D; Research design, data, and methodology: Typical case analysis deals with the issues surrounding the selection of applicable cases for international commercial arbitration.&#x0D; Results: Under the arbitration clause, which explicitly excludes disputes regarding the FET clause and the non-discrimination clause, it is not acceptable to invoke both clauses through an umbrella clause.&#x0D; Conclusions: Above all, from the facts of this case, it is thought that even if the jurisdiction is expanded, difficulties accompany the complete citation of a claim on the merits. Regarding a non-discrimination obligation, the Tribunal denies the distinction of administrative rules in the context of expropriation. On the other hand, the inappropriate behavior of the Labor Bureau is acknowledged, and there is room for violation of FET or the obligation to prohibit investment damage.

Action 4 of the OECD/G20 Base Erosion and Profit Shifting Project and the Non-Discrimination Clauses in South Africa’s Tax Treaties

In this article, the author considers the implications of Action 4 of the OECD/G20 Base Erosion and Profit Shifting Project in relation to the non-discrimination clauses in the tax treaties that South Africa has concluded and how it impacts the country’s domestic legislation enacted to advance the goals of Action 4.

Non-Discrimination and special protection for migrants and refugees

In the Americas, the Inter-American Commission on Human Rights (IACHR) and the Inter-American Court of Human Rights (IACtHR) have established that the principle of equality and non-discrimination requires States to both ensure that migrants are not discriminated against on any of the protected grounds of the American Convention on Human Rights, as well as to take specific action to protect certain groups of migrants that are in a situation of vulnerability. Via a comparative quantitative analysis of the immigration and refugee laws, as well as implementing regulations, of 20 Latin American countries, we examine the extent of non-discrimination and special protection provided by the region’s migratory legislation. Our results reveal three main findings. First, more recent immigration and refugee laws tend to be more expansive, which reflects the period of migratory liberalisation in the region. Second, while non-discrimination clauses are more dominant in laws, special protection clauses are primarily present in implementing regulations. This suggests that countries see special protection as a tool to positive discrimination of particularly vulnerable groups. Third, although we identify an overall expansion on protection grounds, countries’ migratory laws mostly reflect traditional categories like: sex/gender; race/ethnicity/colour; nationality; economic/social condition; and religion. Overall, although laudable, the impact of these provisions on reversing structural discrimination from an intersectional approach remains questionable.

‘Treatment Accorded to Aliens Generally’: Article 7(1) of the 1951 Refugee Convention as a Basis for Visa-Free Access to States Parties’ Territory? An Examination of the Prohibition of Nationality Discrimination in the Refugee Convention

Abstract Visa requirements, coupled with other extraterritorial border controls like carrier sanctions, prevent refugees from accessing the territory of States in the global North and the protection these States offer under the 1951 Refugee Convention. Visa requirements are imposed largely on the basis of an individual’s nationality, and distinctions made between different non-citizens in this context are considered to be legitimate in international law, based on States’ right to control their borders. In light of the 70th anniversary of the Refugee Convention, this article examines whether this instrument can respond to the externalization of border controls, specifically the imposition of visa requirements, and to the impact of these developments on refugees’ access to protection, by relying on the Convention’s non-discrimination clause. The article makes the case for an interpretation of the Refugee Convention that allows for access to States parties’ territory under article 7(1) – by approaching visa requirements as a ‘treatment accorded to aliens generally’ – combined with article 3 – the non-discrimination provision of the Convention, which prohibits discrimination among refugees on grounds of their nationality. It will be suggested that coupled with the declaratory nature of refugee status, these provisions may be read as precluding imposing visa requirements on refugees originating from country A, as long as refugees originating from country B can reach a State’s border visa-free. The article highlights the Refugee Convention’s continued relevance, showing that some of its core principles, such as the non-discrimination provision, offer solutions where States parties attempt to limit their protection obligations towards refugees.

​Article 15 and the Citizenship (Amendment) Act – A Thought Experiment ​

The Citizenship (Amendment) Act, 2019 (‘CAA’) has been the subject of many constitutional challenges and intense legal debate. Despite this, there has not been sufficient debate on the question of the applicability of Article 15(1)’s non-discrimination clause to the CAA. Article 15(1) of the Constitution prohibits the State from discriminating, inter alia, on the grounds of religion. Since the CAA covers those who are not currently citizens, and Article 15(1) mentions a citizen as its subject, many have argued that Article 15 cannot apply despite the CAA explicitly being grounded on religion. I contest this, and argue that due to the nature of the CAA as a law which determines the conditions of entry into the community of citizens, it must be subject to Article 15(1) (through the ‘conditions of entry’ principle). First, recent Supreme Court jurisprudence has shown that entry conditions cannot be ignored when discussing Article 15(1). Second, I conduct a thought experiment through a hypothetical citizenship law. Through this thought experiment, I demonstrate that to not extend Article 15(1) to the CAA would be illogical and allow the legislature to accomplish indirectly what is impermissible directly. It could deprive that great non-discrimination clause of its vitality through an act of subterfuge. I defend my thought experiment by addressing various arguments on the grounds and subjects of discrimination, the question of numbers, and anti-subordination, and demonstrate that my claim is consistent with the text of Article 15(1). Hence, the CAA should be subject to the rigorous scrutiny of Article 15(1).

Civil rights as patient experience: How healthcare organizations handle discrimination complaints

AbstractThe nondiscrimination clause of the Affordable Care Act, known as Section 1557, formally expanded patients' civil rights in nearly every healthcare setting in the United States in 2010. Regulations required healthcare organizations to name a person to handle grievances and set up an internal grievance process for resolving them. Drawing on interviews with 58 healthcare grievance handlers, this study examines how healthcare organizations respond to patients' discrimination complaints. We find that organizations incorporated the new right into preexisting complaint and grievance procedures, treating possible patient civil rights violations as patient experience problems. Grievance handlers smooth over problems using customer service strategies. These procedures diminish the efforts of policymakers to expand civil rights protections in healthcare. For civil rights to provoke real organizational change, discrimination complaints would need to be handled by professionals attuned to rights consciousness.

Family Unity and International Protection – EU Regulation and its Compatibility with the echr

Abstract The present article deals with the issue of family unity in the field of international protection, with a special focus on the European Union (EU) rules and their compatibility with the European Convention on Human Rights (echr) standards. In particular, the scope of the article is limited to family transfers of seekers of international protection under the Dublin system and to family reunification procedures for refugees, and beneficiaries of subsidiary protection. After examining the legal framework at EU and domestic level, the present study focuses on two rather controversial issues, from a human rights perspective: on one side, the regulation of the right to family reunification for beneficiaries of subsidiary protection and, on the other side, the different treatment between pre- and post-flight families in the field of international protection. The article concludes that the current rules regarding these two issues are not compatible with Article 8 of the echr taken together with Article 14 of the echr, and with Article 8 of the echr taken alone. It suggests that while the EU and domestic legislature remains inactive in order to correct these inequalities, the non-discrimination clauses may become directly applicable.

Discrimination Inside: Non-Discrimination as a Tool of Migrant Integration

Migration control does not end at the border. Rather, controlling migration (and migrants) continues inside host countries as migration status is used to stratify benefits and limit rights across social, economic, cultural, and political life. This differentiation typically has exclusionary effects and aggravates structural disadvantages that migrants face. This essay argues that we should use anti-discrimination law to address such practices of differentiation and remedy their detrimental effects. While non-discrimination clauses in international human rights treaties provide a powerful resource to this end, they are currently often interpreted in a restrictive manner. “Differentiation within” includes a variety of measures such as restrictions on migration status that limit the right to work, restrictions on political participation, restrictions on freedom of movement based on migration status, and requirements of cultural adaptation.

The Troubled Story of the Hungarian Advertisement Tax: How (Not) to Design a Progressive Turnover Tax

The provisions of the Hungarian Advertisement Tax stirred up many legal debates regarding the potential breach of EU law, including State aid rules and EU fundamental freedoms, respectively, as well as the violation of the non-discrimination provision of double tax conventions. The implications of these legal questions go beyond the Hungarian tax system and have special relevance on international and EU levels. This article analyses the compatibility of progressive turnover-based taxes with EU law that is of paramount importance now when Member States unilaterally introduce similarly designed digital taxes. Furthermore, the article also sheds light on the application of the non-discrimination clause of double tax conventions and the EU fundamental freedoms to procedural rules designed to enforce taxes on taxpayers who are likely not to be physically present in the taxing jurisdiction. Turnover taxation, digital tax, progressive tax rate structure, advertisement tax, tax treaty non-discrimination, state aid, registration requirement and default penalty, EU fundamental freedoms.

Gay Liberation to Campus Assimilation: Early Non-Heterosexual Student Organizing at Midwest Universities by Patrick Dilley

Reviewed by: Gay Liberation to Campus Assimilation: Early Non-Heterosexual Student Organizing at Midwest Universities by Patrick Dilley Michael S. Hevel and Charles J. Thompson Gay Liberation to Campus Assimilation: Early Non-Heterosexual Student Organizing at Midwest Universities Patrick Dilley New York, NY: Palgrave Macmillan, 2019, 261 pages, $99.99 (hardcover) Dilley’s new book about LGBTQ college students was published almost 20 years after his pioneering Queer Man on Campus (Dilley, 2002), in which he focused on the history of individual experiences and identities of “non-heterosexual” college men since the 1940s. In Gay Liberation to Campus Assimilation, Dilley shifts attention to the collective activities and accomplishments of LGBTQ college student organizations at public, [End Page 261] Midwestern universities from the late 1960s through the early 1990s. Accomplishing the difficult challenge of narrating and succinctly summarizing the history of these organizations, Dilley demonstrates that their members made important contributions to their campus and the larger LGBTQ rights movement far away from the LGBTQ metropoles of New York and San Francisco. In chapter 1, Dilley outlines his methodology and foci. Conducting archival research at 16 Midwestern universities, Dilley centers his attention on 6 institutions: Indiana University, Ohio State University, University of Illinois, University of Kansas, University of Michigan, and University of Minnesota. Dilley also visited national gay and lesbian archives and conducted oral history interviews. Chapters 2 and 3 concentrate on the formative years of LGBTQ student organizations during the 1970s. The earliest college student groups were strongly influenced by the Gay Liberation Front, an LGBTQ activist organization that articulated a largely radical reconfiguration of American social mores. As such, the first LGBTQ student organizations pursued two overarching goals: providing a space for college students to come out and advocating for a new social order to transform prevailing heterosexist sexual and gender norms. However, many members gravitated toward one goal over the other, and by the mid-1970s most student organizations focused on providing social events and safer campus climates for LGBTQ students, which was the first step toward campus assimilation. Many campus leaders, including student affairs professionals, and many politicians worked to eliminate early LGBTQ organizations. In contrast, many of these organizations received support from student government leaders, campus newspapers, and both campus and community organizations. Chapter 4 highlights changes that occurred as LGBTQ student organizations moved through the 1980s. According to Dilley, many LGBTQ organizations at Midwestern universities fought for normalization during this decade, a process that included ensuring the safety of LGBTQ students, maintaining campus recognition for their organizations, and securing funds for their activities. In particular, LGBTQ organization leaders urged campus administrators to adopt non-discrimination clauses that included sexual orientation. Administrators usually tried to stall these initiatives, but by the end of the decade most LGBTQ organizations had succeeded in creating more inclusive nondiscrimination policies. In their advocacy regarding nondiscrimination policies and other initiatives, LGBTQ student organization leaders in the 1980s drew parallels between sexual minorities and racial minorities. “No longer was ‘gay,’ as an identity, seen to be one in opposition to a normative heterosexual society”—as had been the stance of the earliest LGBTQ campus activists—“but rather as one of many social identities that comprised American society” (p. 155). This was another detour away from liberation toward assimilation. In chapter 5, Dilley explores the ways LGBTQ student organizations not only focused on campus assimilation but also societal assimilation in the late 1980s and early 1990s. In terms of societal assimilation, Dilley highlighted LGBTQ student organizations’ activism against campus-based Reserve Officer Training Corps (ROTC) programs. Because of the military ban at the time against LGBTQ servicemembers, activists argued, the presence of ROTC violated universities’ nondiscrimination policies. At the same time, the U.S. Department of Defense predicated research funding on the presence of ROTC on campus. LGBTQ students’ activism helped contribute to a larger public policy change when President [End Page 262] Clinton instituted the “Don’t ask, don’t tell” policy that improved, though imperfectly, the ability of LGBTQ individuals to serve in the Armed Services. However, LGBTQ students’ activism for inclusion into the U.S. military was a far cry from the anti-war sensibilities that informed the gay liberation...

Antitrust Analysis of Vertical Mergers: Recent Developments and Economic Teachings

The generally well-accepted belief motivating modern antitrust analysis of vertical mergers — i.e., acquisitions that combine companies in different levels of the same supply chain — is that they are generally procompetitive or neutral. That belief is based upon a significant body of empirical evidence. Indeed, as former U.S. Federal Trade Commission (FTC) Bureau of Economics head Francine Lafontaine and Margaret Slade concluded, “[c]onsistent with the large set of efficiency motives for vertical mergers . . . the [empirical] evidence on the consequences of vertical mergers suggests that consumers mostly benefit from mergers that firms undertake voluntarily.” That view of the empirical evidence is consistent with other meta-studies of the empirical evidence by leading industrial organization economists from academia and the U.S. antitrust agencies. Consistent with this evidence, the U.S. antitrust agencies typically have rarely challenged vertical mergers. When they have challenged vertical mergers, they have tended to resolve concerns with narrowly tailored behavioral remedies, such as firewalls to prevent the sharing of rivals’ competitively sensitive information, non-discrimination clauses to eliminate incentives to disfavor rivals, and requirements to supply and/or license competitors. This Article is organized as follows: Section I sets forth the empirical evidence supporting the widespread understanding that vertical integration is generally procompetitive or neutral, and responds to the major critiques of these studies. Section I also discusses typical justifications for vertical integration, namely avoiding the costly and risky processes of forming, administering, and enforcing contracts with independent suppliers and customers. Section II lays out the economic approach to antitrust analysis of vertical mergers, briefly addressing calls for the U.S. antitrust agencies to update their 1984 Non-Horizontal Merger Guidelines. Section III discusses remedies. The final section offers closing thoughts focusing on the relative expertise of agencies and courts as compared to merging parties in evaluating the costs and benefits of vertical integration.

Non-Discrimination in International Law and Sovereign Equality of States: An Historical Perspective

The interpretation of non-discrimination clauses lies at the epicenter of the practice of international courts and tribunals. In today’s world, an important part of the jurisprudence interpreting non-discriminatory standards, such as the national treatment standard and the most-favorable nation treatment, is in fact “economic.” The reason lies with the ever-expanding fields of international investment law and international trade law, that have brought about the creation of a large body of investor-state arbitration awards, WTO Panel Reports and WTO Appellate Body Reports, all interpreting and applying economic non-discriminatory standards. At the same time, the principle of Sovereign Equality of States, the cardinal organizational and constitutional principle of international relations is constantly the focus of legal and political debates in the international scene. Despite the prominence and prevalence of both concepts, little attention or no attention has been paid to the history of their interrelationship. The present article offers a detailed historical analysis of the relationship between the principles of non-discrimination and Sovereign Equality of States, which is instrumental in the better understanding of both concepts.

A New Era in Human Rights Promotion and Protection in Kenya? An Analysis of the Salient Features of the 2010 Constitution's Bill of Rights

The Bill of Rights in the Constitution of Kenya (2010) is unique in a number of critical respects. It exhibits the following salient features – it has an exhaustive catalogue of entitlements, contains the different genres of human rights; provides for an expansive ‘non-discrimination clause’; expresses regard for substantive equality (affirmative action); reserves certain rights from derogation; carries special regulation of emergencies; espouses a conservative strain of moral philosophy; opts for a centralised limitation clause as opposed to multiple internal limitation clauses; and has both vertical and horizontal implications. The Bill of Rights also comes with viable enforcement apparatuses.

The Ethics of Art Therapy: Promoting Creativity as a Force for Positive Change

ABSTRACTThe 2013 revision of the Ethical Principles for Art Therapists added creativity as a core value underlying the profession. At the same time, the ethical principles also included a nondiscrimination clause to protect the interests of nonnormative clients. In this article I explore creativity as a basic human right, promoted through freedom of artistic expression with clients to promote positive change. Creativity is viewed as a guiding principle to provide an outlet for expression, self-understanding, and transformation for those otherwise marginalized.

Legislating for transnational ageing: a challenge to the logics of the welfare state

Transnational ageing presents fundamental challenges to nationally bounded welfare states, which historically have tended to be organised according to a logic of solidarity among nationals and permanent residents of a given state territory. Nonetheless, the Dutch and French governments have taken steps to break this link between solidarity and territorially bounded consumption of welfare, by providing lifelong income security for older migrants who return to countries of origin on a permanent or semi-permanent basis. This article asks what motivated policymakers to initially develop these novel policy tools for transnational ageing which contradict the territorial logic of the welfare state. Based on interviews with key stakeholders and available official documents, we find that in both France and the Netherlands, policymakers’ initial motivations can be characterised as rather benign, if not beneficent: to facilitate return for those who are willing but unable to afford it. However, two types of obstacle have impeded the delivery of such policies. Non-discrimination clauses and free movement rights in EU law may make it difficult to implement policies for specific categories of older migrants. Electoral realpolitik may also lead policymakers to shelve policies which benefit older migrants, in a European context where public opinion on immigration is less and less favourable. Nonetheless, opposition may be neutralised by the budgetary advantages of these schemes, since older returnees do not consume public services such as healthcare.

Equal moral membership: Naz Foundation and the refashioning of equality under a transformative constitution

ABSTRACTThe 2009 judgement of the Delhi High Court in the Naz Foundation vs NCT of Delhi, which decriminalized homosexuality, was widely celebrated; and the Indian Supreme Court’s reversal of that judgement in 2013 equally widely decried. Most of the analysis of the Delhi High Court’s judgement, however, tends to focus on its progressive outcome. In this essay, by reconstructing the judgement through focusing on parties’ submissions and arguments before the Court, I argue that the importance of Naz Foundation lies in how it advanced the Indian Constitution’s overarching vision of social transformation by radically re-imagining the Constitution’s promise that “the State shall not deny to any person equality before the law or the equal protection of law”. Moving away from a sterile equality jurisprudence based on rational classification and “arbitrariness”, Naz Foundation linked the Constitution’s equal protection and non-discrimination clauses to advance an alternative jurisprudence founded in ideas of inclusion, dignity, autonomy and remedying structural disadvantage. In doing so, I will argue, it presented a new vision of equality that is truer and more faithful to the Constitution’s transformative character, and opens up new possibilities for discrimination jurisprudence in the years to come.

Retail Price Regulation in the British Energy Industry

In this paper, we revisit the 2009–2012 episode in which Ofgem imposed a nondiscrimination clause on large retailers in the UK energy market. The Standard Licence Condition 25A (SLC 25A) was introduced to prevent suppliers from charging their incumbent customers higher prices than their out-of-area customers. The SLC 25A included a “sunset clause”, to allow the condition to lapse three years after its implementation. Several IO economists protested that the prohibition of spatial price discrimination would eventually lead to competition weakening. At the end of the three-year period, Ofgem decided not to renew SLC 25A for any period. To further our understanding of Ofgem's motives and its opponents' arguments, we build a model where two local monopolists compete on a third market. We determine conditions where the obligation to set the same price in and out of the local market can result in a better or a worse situation for consumers. We show that even when the ban on price discrimination weakens competition, the average consumer can be better off.

Non-discrimination Clauses: Their Effect on British Retail Energy Prices

UK governments and the energy regulator have shown increasing concern about the health of competition in the residential energy market, following their pioneering deregulation at the end of the last century. We identify the effects of introducing the non-discrimination clauses in 2009, a major regulatory intervention and the first since deregulation. We explore the effect of this intervention on the price movements of the six major players, and find that the nature of competition in the industry has changed, with less effective rivalry between the regional incumbents and large regional competitors following the intervention; companies seem to have ‘retreated’ to their home regions, leaving a market where pricing behaviour resembles more closely a duopoly between British Gas and the regional incumbent.

Helping Your Facility Adjust to a Rainbow World

Helping Your Facility Adjust to a Rainbow World