A/66/265 15. Moreover, certain forms of preferential treatment, in the form of affirmative actions for the benefit of vulnerable and disadvantaged groups, are not considered discriminatory because they are designed “to diminish or eliminate conditions and attitudes which cause or perpetuate substantive or de facto discrimination”, encouraging an equal enjoyment of rights.5 Therefore, affirmative actions in favour of persons living in poverty directed towards addressing social and economic imbalances are not only permitted, but are compulsory for States under human rights law. There is discrimination only if a difference in treatment has no legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim to be realized. 16. A discriminatory intent is not a necessary element of discrimination.6 Therefore, any measure with the purpose or effect of nullifying or impairing the equal enjoyment of human rights constitutes a violation of States’ human rights obligations. 17. The common element unifying the penalization measures examined in this report is their failure to sufficiently satisfy these criteria. They all directly or indirectly discriminate against persons living in poverty, with the effect of nullifying or impairing the enjoyment or exercise of their human rights and fundamental freedoms. 18. Discrimination is prohibited on a number of enumerated grounds, including economic and social status as implied in the phrase “other status”, which is included as a ground of discrimination in the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights.7 Penalization measures target individuals because their income, appearance, speech, address or needs identify them as poor. Thus, such measures clearly constitute discrimination on the basis of economic and social status. B. Legitimate restrictions on human rights 19. Human rights law permits States to limit some rights, on the basis that such limitations are justified in the interests of public security, safety or order; public health; or the protection of the rights and freedoms of others. In order for a limitation to be legitimate under human rights law, it must comply with numerous safeguards: it must be “determined by law”, “compatible with the nature of these rights”, “solely for the purposes of promoting general welfare” and “necessary in a __________________ 5 6 7 11-44449 Committee on Economic, Social and Cultural Rights, general comment No. 20, para. 8. Committee on Economic, Social and Cultural Rights, general comment No. 20, paras. 10 and 12; Human Rights Committee, general comment No. 18, para. 9; Committee on the Elimination of Racial Discrimination, general recommendation No. 14, para. 1; Committee on the Elimination of Discrimination against Women, general recommendation No. 28, para. 16. In its jurisprudence, the Human Rights Committee has reiterated that the grounds for discrimination are not exhaustive and that “other status” has an open-ended meaning. See also Committee on Economic, Social and Cultural Rights, general comment No. 20, para. 35. Economic status and social condition are explicitly included as grounds of discrimination in article 1 of the American Convention on Human Rights. Other prohibited grounds for discrimination such as “property” and even “social origin” may also be relevant in addressing issues of poverty. 7