Discrimination on the basis of resident status and denial of equal treatment: a reply to Professor Weintraub's response.

• Author: Paust, Jordan J.
• Position: Response to Russell J. Weintraub, Houston Journal of International Law, vol. 27, p. 241, Winter 2005

I am grateful for Professor Russell J. Weintraub's response (1) to my essay on "Equal Treaty Rights." (2) His claims and commentary offer an opportunity for clarification and sharpened inquiry concerning the meaning of the right to equal access to courts and to equal treatment in civil proceedings that the Supreme Court of Texas has rightly recognized is guaranteed under at least one treaty of the United States, (3) the International Covenant on Civil and Political Rights (ICCPR). (4) It is clear from his response that Professor Weintraub does not favor equal access and equal treatment and prefers distinctions and discrimination on the basis of resident status. However, the ICCPR necessarily precludes use of such a preference. Other treaties can require a similar outcome. (5)

1. THE REACH OF ARTICLES 2, 3, 14, AND 26 OF THE ICCPR AND THE MEANING OF "OTHER STATUS"

   The ICCPR cannot rightly be interpreted to allow distinctions or discrimination on the basis of resident status. First, Article 2(1) of the ICCPR unavoidably ensures rights under the treaty "to all individuals" within a state's territory or subject to its jurisdiction and guarantees such rights to all persons "without distinction of any kind." (6) Distinctions based on an individual's residency necessarily violate the treaty's reach "to all individuals" and necessarily involve a "distinction of any kind." This conclusion is unavoidable whether or not resident status as such fits within the phrase "other status," which appears at the end of Article 2(1). Second, the specific categories listed in Article 2(1), among which "other status" is found, are merely listed by way of example. They expressly follow the treaty's phrase "such as" and are therefore clearly "mentioned rather for example than by way of exclusion" (7)--a circumstance known to obviate application of a rigid ejusdem generis doctrine. (8) Moreover, if one sought to apply the ejusdem generis doctrine to the full reach of Article 2(1), what would be "the genus" of the "special words" found in the "such as" examples of impermissible distinction? Since the "special words" or categories are merely set forth by way of example, the logical conclusion must be that "the genus" relates to "all individuals" and to the prohibition of a "distinction of any kind." As noted, a denial of rights to nonresidents violates the guarantee to "all individuals" and constitutes a prohibited use of a "distinction of any kind." Thus, the prohibition of a distinction based on residency is logically related to "the genus." Moreover, each specific category listed by way of example can be a form of status, like resident status, and some involve geographic or social relations, like resident status. Thus, even the specific categories exemplified, including "other status," are logically related to resident status.

   Third, the rights listed in Article 26 of the treaty to be "equal before the law," to be "entitled without any discrimination to the equal protection of the law," and to freedom from "discrimination on any ground" are treaty-based rights of "all persons." (9) Thus, necessarily, distinctions based on resident status would violate the reach of rights and guarantees of all persons that are set forth in Article 26. Importantly, the phrase "other status" that is contained in Article 26 appears among a list of categories following the phrase "such as." Thus, like the listing in Article 2, each specific category of impermissible discrimination listed in Article 26 is set forth by way of example and none are set forth by way of exclusion.

   Fourth, the requirements of equal rights and equal protection are mirrored in Articles 3 and 14(1) of the ICCPR. (10) Indeed, Article 14(1) expressly mandates: "[a]ll persons shall be equal before the courts and tribunals ... [and] everyone shall be entitled to a fair and public hearing." (11) As noted in my prior essay, the Supreme Court of Texas rightly affirmed that Article 14(1) "'requires ... the right of equality before the courts ... [,] equal treatment in the signatories' courts, ... [and] equal access to these courts ... [as well as] equal treatment in civil proceedings.'" (12)

2. PROPER TREATY INTERPRETATION

   Fifth, the U.S. Supreme Court and other U.S. federal and state courts have long recognized that treaties are to be construed in a broad manner and in favor of express and implied rights. (13) In contrast, misapplication of a rigid ejusdem generis doctrine to deny freedom from distinctions and discrimination on the basis of resident status would result in a denial of both express and implied rights under treaty law of the United States. Additionally, an attempt to add limiting words to the ICCPR that the treaty makers did not choose, such as "irrational," as if the treaty denies merely irrational distinctions or irrational discrimination, would violate the express reach of rights under the treaty "to all individuals," the express right to freedom from a "distinction of any kind," the express right to freedom from discrimination "on any ground," the express right of "[a]ll persons" to be "equal before the courts," the express right of "all persons" to be "equal before the law," and obviously would not comply with the venerable judicial rule of construction that treaties are to be construed in a broad manner to protect express and implied rights.

   Moreover, treaties are to be construed in a manner that serves the "object and purpose" of the treaty and with reference to "the ordinary meaning" or common meaning of its terms. (14) Clearly, the major purpose of the ICCPR is to provide effective human rights to all human beings and the ordinary meaning of "all individuals," "all persons," and "everyone" necessarily covers nonresident persons. Clearly also, the ordinary meaning of the prohibitions of a "distinction of any kind" and "discrimination on any ground" contained in Articles 2(1) and 26 covers distinctions and discrimination on the basis of resident status. Similarly, the inclusive listing of "other status" among the forms of impermissible distinction and discrimination will, according to the ordinary meaning of "other status," necessarily cover resident status.

   The requirement that the ordinary meaning of treaty terms be used assures that a common or shared meaning will prevail and that a hidden, arcane, unilateral, or distorted meaning will not guide inquiry. (15) This is one reason why inquiry into the common or ordinary relationship that exists between use of the terms "resident" and "status" can be informative. (16)

3. SUPPOSED SUSPICION AND ALLEGEDLY RATIONAL DISCRIMINATION

   Professor Weintraub also alleges that discrimination on the basis of resident status might sometimes be "rational" in view of a supposed "common sense suspicion" (17) and should be allowed in some cases. Whether or not this is correct, the treaty's prohibitions of a...