18 Equality

Equality is an immensely challenging, complex, and dynamic concept. Although most persons have an intuitive understanding of equality,¹ their diverse characteristics and range of experiences mean that they are likely to reach very different conclusions when asked to explain equality. In other words, equality means many things to many people. These various perspectives are made manifest both positively and negatively in society. Often, the human diversity that should be promoted, embraced, and cherished, instead triggers prejudice, discrimination, and oppression. Laws and policies may draw conscious and unconscious distinctions that discriminate against particular groups or individuals.² The net effect of de facto and de jure discrimination is that those perceived as different are unable to enjoy fundamental human rights on an equal basis with others, and they continue to be abused and denied basic social goods, benefits, and public safeguards.

Against this backdrop, international human rights law has developed a multidimensional relationship with the principle of equality. As a structural principle, equality provides a conceptual framework through which to understand and analyse human rights issues—and through which to justify human rights decisions. It provides a spotlight for identifying key issues in complex cases and acts as a moral lever for explaining human rights protections.³ Thus, equality (together with the related principle of non-discrimination) provides a moral and analytical mechanism for ensuring that all people effectively enjoy human rights guarantees. The principle of equality also binds human rights norms and embellishes them with both a procedural and substantive content. Taking stock of these dimensions, this chapter will examine the normative and philosophical bases of the principle of equality. Second, it explores and maps out how contemporary international human rights law transposes and applies the principle, especially as it relates to the prohibition of discrimination. Finally, the chapter will explore the claim that a right to equality exists in international law and will attempt to identify some of the benefits of this right.

The principle of equality in international human rights law is multifaceted. At the theoretical level, when scholars talk of equality, they often talk about different concepts which, while rooted in the same overarching framework, frequently can have very different implications for human rights. These discussions broadly encompass the concepts of formal and substantive equality. Formal equality refers to the idea that things that are the same or similar should be treated in the same or similar ways. As Section 2 will discuss, this concept is linked to the notion that equality requires consistent treatment of all. On the other hand, substantive equality refers to the idea that equality provisions should be sensitive to the informal arrangements and barriers that cause inequality for some, and account for them by requiring different treatment for persons who are disadvantaged in society. Section 2 of this chapter sets out that one or more conceptions of equality based on these two concepts, such as equality of opportunity, equality of outcomes, or transformative equality, are generally adopted when formulating equality law and policy. Alongside this theoretical discourse, international human rights law transposes these concepts within the principle of equality primarily through the dynamic of equality and non-discrimination. Thus, in practice the prohibition of discrimination, defined in Article 1(1) of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (CERD), the requirement to take some form of positive or special measures found in Article 1(4) of CERD, and so forth, represent the key articulations of the principle of equality in international human rights law. Sections 3 and 4 discuss in greater detail how these two strands of the principle of equality have been transposed in international human rights instruments and interpreted within its jurisprudence.

Equality is a common cornerstone of many contemporary democracies. To appreciate why it occupies a cherished position in contemporary legal orders, it is necessary to examine how the understanding of equality has evolved over time.⁴ The United Nations Educational, Scientific, and Cultural Organization’s (UNESCO) Birthright of Man illustrates that the idea of equality has preoccupied social thinkers and philosophers from all civilizations throughout history.⁵ Some scholars contend that even social philosophies such as Confucianism, which they traditionally perceived as promoting societal difference and inequality, have made important contributions to our current understanding of the idea of equality.⁶

An understanding of why contemporary rights-based democracies have appropriated equality as a constitutional norm begins with classical Greece.⁷ Thucydides proposed that equality prescriptively indicates how law ought to operate in a democracy.⁸ In particular, he suggested that procedural equality is instrumental for social justice—a key component of the democratic order. Plato, on the other hand, argued that the key differences which existed between individuals, for example, on the basis of sex, should be accounted for in exigent times.⁹ Greek philosophy’s most significant contribution to the notion of equality is provided by Aristotle’s maxim that ‘things that are alike should be treated alike’,¹⁰ with an implicit corollary that the unlike should be treated according to the relevant differences.

Aristotle’s maxim directly underpins the formal ideas of equality that are important for addressing specific human rights concerns, for instance, how the legal system should react when laws on their face treat some people unfavourably because of a shared characteristic. Yet, classical Greek notions have leaned towards procedural forms of equality and lack many characteristics that are integral to modern human rights norms. One such characteristic is universality. This basic human rights principle is absent from Greek thinking, which envisaged equality between citizens of the state, but not between citizens and non-citizens. Indeed, the idea of equality was applied differently to different people, depending on their political status. The idea of universal citizenship, a concept with which international human rights law and contemporary constitutions struggle today, was absent from classical Greek philosophy.¹¹

Universalism was critical to Christian thinking on equality. St Thomas Aquinas emphasized an approach to equality that united everyone under God’s direction in a common bond of happiness. Aquinas’ concept of divine law commanded that all unite in mutual love of God.¹² Thus, in contrast to Greek philosophers who limited the application of the principle of equality to members of set democratic orders, Aquinas presupposed that by divine design and law the principle of equality applied to everyone.

Natural law theorists added to the body of knowledge which has shaped modern understanding of the principle of equality. In Leviathan, for instance, Hobbes set out his vision of equality within natural law:

Nature hath made men so equal in the faculties of body and mind as that, though there be found one man sometimes manifestly stronger in body or of quicker mind than another, yet when all is reckoned together the difference between man and man is not so considerable as that one man can thereupon claim to himself any benefit to which another may not pretend, as well as he.¹³

Hobbes thus suggested that despite the inevitability of individual differences with respect to physical and mental talents, such differences should not by themselves imbue benefits. Conor Gearty has argued that Hobbes’s basic premise with respect to equality is that if everybody is equal in terms of natural rights, they must be able to use their equal natural rights to make choices regarding their participation in society. Furthermore, he argues that the natural law discourse of Hobbes’s time created a progressive vision of equality that provides direction for modern law-making in facilitating ‘real’ equality.¹⁴ As with other natural law thinkers, Hobbes believed that equality imparted natural rights on the basis of an individual’s humanity. John Locke asserted that, under natural law, all men were equal in the sense that every man had an equal right to his natural freedom without being subjected to the will or authority of any other man. Yet, he did not suggest that all men were equal in everything: ‘I cannot be supposed to understand all sorts of equality: age or virtue may give men a just precedency: excellency of parts and merit may place others above the common level.’¹⁵ Likewise, Thomas Paine declared that through the will of God all men are born equal with equal natural right, and the only basis of distinction is that between the sexes.¹⁶ By applying this position, natural law theorists were situating the discourse of equality within rights-based language, thereby enabling individuals to assert the principle of equality for political and legal ends.

Many contemporary political and legal philosophers have contested the normative relevance of equality for underpinning modern legal norms. Some scholars, such as Nozick, suggest that equality is normatively defunct and cannot be used to underwrite governmental interference in the distribution of resources.¹⁷ Others recognize that different notions exist when people talk of equality. Berlin, for example, analyses two of these notions: (i) equality as rules and (ii) equality proper.¹⁸ After balancing the two against each other, Berlin concludes that equality as rules is a more convincing notion of equality, because even in conditions where a moderate form of equality proper is permitted to flourish:

the criterion of equality has plainly been influenced by something other than the mere desire for equality as such, namely, desire for liberty or the full development of human resources, or the belief that men deserve to be as rich or as powerful or as famous as they can make themselves—beliefs which are not connected with the desire for equality at all.¹⁹

Other scholars, such as Peter Westen²⁰—and later Christopher Peters²¹—argue that equality is merely a tautology, entirely ‘circular’, because it tells us to treat like people alike, but it is completely silent about what is meant by ‘like people’. As with Berlin’s observation about equality proper, they assert that equality without further moral guidance says nothing about how we should act and is anterior to and dependent upon rights to give it form and function.²²

The contributions of John Rawls, Amartya Sen, and Ronald Dworkin perhaps have been the most significant to the contemporary understandings of equality’s normative importance in the democratic order. All three agree on equality’s normative worth but approach it in different ways. John Rawls, for instance, sets out that a sound model of justice requires adherence to two overarching principles:

Equality is thus a necessary and common component of Rawls’s justice equation. Amartya Sen’s seminal work contends that focusing on the equalization of social goods is not the correct approach. Instead, Sen suggests that we should attempt to equalize individual capabilities because ‘there is evidence that the conversion of goods to capabilities varies from person to person substantially, and the equality of the former may still be far from the equality of the latter’.²⁴

Dworkin’s work also has been hugely influential to understanding the intrinsic worth of the principle of equality in law and policy. He argues that equality is not anterior to rights or liberties at all, but that:

[L]‌iberties must be recognized only when the fundamental right to treatment as an equal can be shown to require these rights. If this is correct then the right to distinct liberties does not conflict with any supposed competing right to equality, but on the contrary follows from a conception of equality conceded to be more fundamental.²⁵

Dworkin asserts that it is a primary obligation of government not only to treat people with concern and respect, but to treat them with equal concern and respect.²⁶ He proceeds, in later work, to advocate for what he terms ‘equality of resources’.²⁷ Under his construct of equality of resources:

[W]‌e must, on pain of violating equality, allow the distribution of resources at any particular moment to be (as we might say) ambition-sensitive...But on the other hand, we must not allow the distribution of resources at any moment to be endowment-sensitive, that is, to be affected by differences in ability of the sort that produce income differences in a laissez-faire economy among people with the same ambitions.²⁸

In other words, a choice/endowment distinction is integral to Dworkin’s model of equality, in which distinctions or inequalities that the errant choices of an individual cause are morally acceptable, but those which are the result of a specific endowment of an individual are not. Part of the attraction of Dworkin’s model of equality is its simplicity. Everyone has an intuitive understanding of what it means to be concerned for, or to respect, others. Consequently, the principle of equality in this sense underscores that human rights are based on basic and common human values which everyone understands, shares, and approves.

Jack Donnelly has applied Dworkin’s model of equality within international human rights law and has argued that ‘the Universal Declaration [of Human Rights] model is rooted in an attractive moral vision of human beings as equal and autonomous agents living in states that treat each citizen with equal concern and respect’.²⁹ Moreover, he asserts that the basic moral equality of all human beings, together with the counterparts of equal respect and equal concern, has provided the foundation for a convergence on the rights of the Universal Declaration of Human Rights,³⁰ a basis to understand the right to personal liberty,³¹ and a justification for requiring states to implement social and economic rights.³²

Equality is integral to our moral, philosophical, and political understanding of the idea of democracy. Our common awareness regarding the need for equality (of some form) may be one reason why equality is so often the backbone of contemporary justice systems. Classical Greek philosophy believed that some formal notion of equality was fundamental to the successful operation of the democratic order. While this notion of equality has clearly advanced over time, the transition to realizing an egalitarian purpose for equality has been slow. Nevertheless, over time political and legal philosophers have incrementally recognized equality’s potential to combat disadvantage and enable everyone to share in the benefits of democratic membership. Contemporary human rights law’s reliance on the principle of equality is evident.

Although, linguistically, the opposite of equality is inequality, in legal terms non-discrimination or anti-discrimination are often preferred to frame the legal or policy action used to achieve equality. Ellis, writing about this legal corollary, states that ‘the non-discrimination principle is essentially the non-dynamic part of the equality package; it works only in conjunction with dynamic measures of social reorganization’.³³ The Inter-American Court of Human Rights has also referred to this special relationship stating:

The element of equality is difficult to separate from non-discrimination. Indeed, when referring to equality before the law...this principle must be guaranteed with no discrimination.³⁴

³⁴

Juridical Condition and Rights of the Undocumented Migrants, para 83.

For such reasons, equality as non-discrimination is often promoted as a principle dynamic of international human rights law. In practice, while there is an underlying the concept of equality, there are several different conceptions of equality that apply in different contexts.³⁵ Claiming a violation of the right to non-discrimination or equality before the law thus often triggers an evaluation of one or more conceptions of equality. Indeed, in some cases it is not possible to fit the inequality or discrimination the victim experiences neatly into a distinct classification, and it is necessary to analyse the particulars of a case through a number of sometimes-overlapping conceptions of equality.

This variety illustrates how problematic it is to apply the concepts of equality and discrimination in human rights discourse. Much academic literature has attempted to pinpoint the theoretical justifications for equality and non-discrimination provisions. Some works have sought to understand the justification of equality protections in national contexts. For example, Gardner has argued that anti-discrimination laws operating in national contexts promote individual autonomy.³⁶ Other research has attempted to understand how the concepts of equality and discrimination are operating within human rights contexts. For example, McCrudden and Kountouros identify four broad and porous approaches to equality and non-discrimination: (i) equality as ‘rationality’; (ii) equality as protective of ‘prized public goods’; (iii) equality as preventing ‘status-harms’ arising from discrimination on particular grounds; and (iv) equality as proactive promotion of equality of opportunity between particular groups.³⁷

In the main, equality and non-discrimination provisions generally tend to adopt one or more of the following approaches: (i) equality as consistent treatment; (ii) equality of opportunity; (iii) equality of outcomes; or (iv) transformative equality. Some of these approaches are fluid and, in some cases, adopt characteristics of both formal and substantive equality. Consequently, rather than being distinct or isolated classifications, they are ranges in a spectrum which often blend into one another.

This approach is closely associated with Aristotle’s formal equality maxim that ‘things that are alike should be treated alike’.³⁸ It represents the simplest understanding of equality today. Based on individual justice, its central ethical claim is that each individual is equal under laws that should apply to everyone equally. Hence, treating people unequally or inconsistently is unfair,³⁹ because a person’s individual physical or personal characteristics (or status) should be irrelevant in determining whether he or she has a right to some benefit or gain. The prohibition against direct discrimination that is present in many legal systems, and can be defined as treating one person less favourably than another is, has been, or would be treated in a comparable situation on specific grounds, applies this approach in practice.

Liberals defend this approach on the basis that it challenges arbitrary and irrational decision-making, for example, when policies or people selectively disadvantage others due to an irrelevant characteristic.⁴⁰ Thus, a key benefit is its ability to protect against arbitrary treatment that arises from irrational prejudice. But, on its own, requiring consistent treatment insufficiently addresses the disadvantage and inequality some individuals and groups experience. Suppose, for example, that a state passed a law which said that all brown-haired people—irrespective of any other criteria—are forbidden to attend university. Equality as consistent treatment tells us only to apply this law equally and says nothing about the inherent unfairness and arbitrariness of such a law. Consequently, without further substantive guidance, laws that are prima facie morally wrong could be applied equally, with the likely result that they would deepen inequality.

Some have sought to solve some of the problems with the consistent treatment approach by equalizing the starting points for individuals from disadvantaged groups, so they can compete for social, economic, political, or other goods alongside other individuals. The equality of opportunity approach aims to strike an appropriate balance between formal and substantive notions of equality. To achieve this balance and equalize starting points, equality of opportunity approaches borrow some elements of the redistributive theory of justice, but do not cross over into pure utilitarian approaches.⁴¹ Essentially these approaches aim to cultivate conditions which enable individuals to start at the same competitive position, regardless of their characteristics, background, or status. In this way, they account for the limited potential of formal equality to achieve full and effective equality for some groups. Injecting substantive equality-based mechanisms into the formal model addresses these limitations. In doing so, it permits certain forms of action in order to improve the lot of individuals or groups that are experiencing inequality. For example, it may allow individuals from traditionally disadvantaged groups to receive specialized education or training, or encourage them to apply for jobs in sectors or industries where the group is underrepresented.⁴² Returning to the example of brown-haired people noted above, the equality of opportunity approach would require universities to encourage applications from brown-haired people in order to increase access among this group and redress formal or social exclusions that have previously existed.

An alternative substantive model of equality goes beyond equal access to opportunities and instead aims at a fair distribution of goods and benefits, in order to improve the lot of those who have been historically disadvantaged in society. Specific measures are adopted for them,⁴³ based on a belief that, due to historic disadvantages, individuals from some groups continue to suffer discrimination and marginalization and will be unable to overcome their situation unless mechanisms are put in place to equalize outcomes. In the case of the admission of brown-haired people to university, the equality of outcomes model would go further than the equality of opportunity approach by not just requiring the encouragement of applications, but by assuring that places are reserved for brown-haired people at university.

Some scholars and policy-makers reject equality of outcome policies, contending that they demand too many state resources (including state regulation) and impose too high a price on individual autonomy. Additionally, some scholars claim that the mechanisms equality of outcomes policies adopt, for instance quotas, overshadow the need for social change by adapting or reorganizing existing institutions and structures.⁴⁴ Another charge laid against this approach is that it tends to be under-inclusive, only improving the position of those who are best placed to take advantage of these polices within the broader disadvantaged group. Finally, some members of disfavoured groups oppose the idea of substantive redistribution because, in their view, it reinforces their status as ‘victims’ and thus perpetuates stereotypes that lead to discrimination.⁴⁵ Unsurprisingly, therefore, attempts to adopt and implement laws or policies based on this approach to equality are politically contentious, and opposition to such measures often ranges from those who abhor such action politically to those who charge that such policies will not sufficiently address the root causes of structural inequality.

Legal systems such as those of the European Union (EU) and the United Kingdom have recently adopted mechanisms aimed at achieving what is referred to as transformative equality. Like equality of outcomes, transformative equality seeks to accelerate equality for disadvantaged groups. Unlike equality of outcomes, however, which prescribes outcomes to be achieved through providing benefits for individuals, transformative equality aims to advance the position of disadvantaged groups through changing existing social structures and the way organizations and institutions function. Thus, transformative equality requires adaptive changes in the practices and structures of organizations and institutions, pursuant to an assessment of how they fail disadvantaged groups. The intent is to make organizations and institutions more inclusive, more representative, and more accessible to disadvantaged groups. This approach has been employed primarily when the strong equality guarantees already present in some legal systems have failed to create the necessary change. The EU’s gender mainstreaming agenda and the imposition of public sector equality duties in the cases of Britain and Northern Ireland⁴⁶ are examples of transformative equality approaches in their infancy.

Locating the theoretical foundations upon which the principle of equality is implemented is a difficult task. Different conceptions of equality underscore different human rights protections, and often different forms of equality need to be applied to different contexts. To a large extent, each of these approaches reflects the different ways in which equality acts as a structural principle within human rights law. As will be set out below, the principle of equality manifests itself at many levels in international human rights law, and it is neither linear nor static; instead, it is a dynamic concept which is constituted within human rights architecture to reflect the complexity and diversity of humanity and to address the many ways inequality and discrimination are rooted in society.

Well before the adoption of modern human rights instruments, equality was an important component of the international rule of law. In 1926, the Permanent Court of International Justice stated that the Treaty of Versailles required ‘equality in fact as well as ostensible legal equality in the sense of the absence of discrimination in the words of the law’.⁴⁷ Further, in the Minority Schools in Albania case, it asserted that to ensure the equal footing of nationals belonging to racial, religious, or linguistic minorities with other nationals, and to maintain national minorities’ particularities, traditions, and characteristics, true equality between a majority and a minority required the preservation of the minority’s own institutions and the very essence of that which qualifies them as a minority.⁴⁸ These pre-United Nations (UN) commitments to the principle of equality were transposed into the UN Charter (‘the Charter’). The Charter places the principle of equality front and centre as guiding principle for the UN´s purpose and mandate. Article 1(2) of the Charter states that the purpose of the UN is to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and Article 1(3) sets out that the UN must promote and encourage ‘respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion’. It is the only right that the Charter specifically mentions, and indeed, the Charter makes the principle of equality an original structural foundation upon which to guarantee, secure, and develop human rights. One may plausibly contend that the principle of equality is so wedded to the Charter and the Universal Declaration of Human Rights (UDHR) that its absence would make the landscape of human rights look fundamentally different.

Most of the major human rights instruments explicitly express a commitment to equality as a justification for the adoption of international standards and many extralegal human rights initiatives, such as the 1993 Vienna Declaration on Human Rights, have ensured that equality and non-discrimination are at the heart of developments in human rights policy. But what makes the principle of equality a ‘structural’ one in international human rights law? The first step in answering this question is to examine how the principle of equality has been transposed into the architecture of international human rights law. The second step is to appreciate how the principle of equality has been interpreted and applied.

Turning to the first step, it seems the transposition process has taken shape in three distinct ways, namely: (i) equality as a preambular objective of international human rights treaties; (ii) equality’s implicit descriptive function in the normative understanding of the scope and application of human rights; and (iii) equality’s codification in the substantive articles of human rights treaties.

A preamble in international treaty law is used to ‘establish the general “philosophy” of the text as well as to set its general purpose’.⁴⁹ In other words, it introduces the spirit and the general objectives that the treaty aims to achieve. Equality is a defining feature of all international human rights preambles. The international order continually returns to the need to achieve equality as a justification for introducing human rights standards. The preamble to the UDHR, for example, refers to the ‘equal and inalienable rights of all members of the human family’ and the ‘equal rights of men and women’. Likewise, the ‘the equal and inalienable rights of all members of the human family’ is mentioned in the preambles to the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The Convention on the Elimination of All Forms of Racial Discrimination (CERD), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention on the Rights of the Child and most recently the Convention on the Rights of Persons with Disabilities (CRPD) go further by expressing a broader range of ways that equality underscores the text of the respective treaties. For example, CERD’s preamble states that all human beings are equal before the law and are entitled to equal protection of the law and CEDAW’s preamble speaks to promoting women’s equality with men in all fields. The CRPD’s preamble refers to the barriers persons with disabilities face in their participation as equal members of society and the need for persons with disabilities to have equal enjoyment of rights and equal opportunities.

The overarching preambular commitment to equality suggests that alongside other principles, such as dignity, achieving greater equality is a principal purpose that the international order aims to achieve through the international human rights movement. Indeed, realizing the equal rights of all people is one of the few common declarations made throughout international human rights law. Thus, by being a core reason for adopting international human rights standards, equality acts as a cohesive instrument which enables states and individuals to take stock of the conceptual origins of these human rights standards and realize why they are necessary.

At a secondary level, equality serves an implicit descriptive function with respect to the nature and scope of human rights obligations. Commonly, the language of human rights states that they must be enjoyed by all human beings. Treaties continually use phrases such as ‘everyone’, ‘all’, or ‘nobody’ to frame the scope and contours of human rights. Describing human rights in this way ensures that the principle of equality is interwoven into the human rights fabric. Without this simple yet extremely important direction, the human rights landscape would be a much more contested domain. It appears that the drafters of human rights instruments have taken cognizance of the need to guarantee human rights through an equality paradigm. It is thus unsurprising that Articles 1 and 2 of the UDHR stress unequivocally that ‘[a]‌ll human beings are born free and equal in dignity and rights’ and that the rights within the UDHR are an entitlement of everyone without ‘distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’, respectively. It is clear from more recent human rights instruments that equality continues to drive how human rights guarantees are framed. Thus, the Charter of Fundamental Rights of the European Union guarantees that ‘[e]veryone has the right to respect for his or her physical and mental integrity’;⁵⁰ ‘[e]veryone has the right to respect for his or her private and family life, home and communications’;⁵¹ and ‘[e]veryone is equal before the law’,⁵² Noting the prevalence of the principle of equality in framing human rights norms, Shelton has written:

Equality and non-discrimination are implied in the fact that human rights instruments guarantee rights to ‘all persons’, ‘everyone’, or ‘every human being’. In fact, the right to be free from discrimination has been called ‘the most fundamental of the rights of man...the starting point of all other liberties’.⁵³

Consequently, the right to life;⁵⁴ freedom from torture, cruel, inhuman or degrading treatment or punishment;⁵⁵ and many more basic human rights, must be enjoyed by ‘everyone’. The importance of this instructive aspect of human rights law should not be underestimated. As noted above, without this instructive function, human rights would be a far more contested domain, and the principle of universality would have a less solid foundation. It must be accepted that although some rights, such as marriage or voting rights, have limits imposed upon them, their application is still subject to the principle of equality. In such cases, the need to apply different conceptions of equality in different contexts becomes clear. For example, substantive conceptions of equality recognize the need to treat people that are in different situations differently. This mirrors social norms in many countries which proscribe people from voting or marrying until the have the capacity to make fully informed decisions and understand the consequences of these decisions. When individuals attain this capacity to enjoy such rights they benefit from the formal concept of equality that ensures that no one is arbitrarily denied access to these rights. Thus, human rights law recognizes the necessity of making relevant distinctions and allows people to be treated differently when compelling reasons justify this.

Equality also serves an extremely important instructive function through its codification in the substantive articles of human rights treaties. First amongst these substantive articles is Article 7 of the UDHR, which states that ‘[a]‌ll are equal before the law and are entitled without any discrimination to equal protection of the law’. Analysing the UDHR from an equality perspective reveals the many ways equality is necessary to protect, promote, and fulfil human rights adherence.⁵⁶

Stating clearly at the earliest opportunity that human rights have to be applied equally to the entire human family and that they are an entitlement of everyone, the UDHR sets an equality agenda which has been transposed throughout international human rights law. Article 26 of the ICCPR reasserts Article 7 of the UDHR, stating that everyone is entitled to ‘equality before the law and without any discrimination to equal protection of the law’. Article 2(1) guarantees the enjoyment of rights without distinction of any kind. In fact, the UN Human Rights Committee has added that unlike Article 2(1), which confines the principle of non-discrimination to the application of the rights in the ICCPR, ‘article 26...provides in itself an autonomous right. It prohibits discrimination in law or in fact in any field regulated and protected by public authorities’.⁵⁷ Equality’s influence in the ICCPR is also apparent in Article 3, requiring equal treatment of men and women in the enjoyment of the ICCPR’s rights; Article 14(1), providing that all people shall be equal before courts and tribunals; and Article 23(4), requiring that states must take ‘appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution’.

The ICESCR is also imbued with commitments to the principle of equality. Article 2(2) proclaims that the rights in the ICESCR will be guaranteed without discrimination of any kind. Article 3 requires states to ensure that men and women will enjoy the economic, social, and cultural rights equally. Article 7 introduces equality in the workplace, including equal pay for equal work and equal opportunity for everyone to be promoted. Similarly, the ICESCR requires equality of rights in respect to education⁵⁸ and health.⁵⁹ General Comment No 20 to the ICESCR recognizes that non-discrimination is an immediate and cross-cutting obligation in the Covenant.⁶⁰ Non-discrimination and equality are the fundamental components of international human rights law, essential to the enjoyment of economic, social, and cultural rights.⁶¹ General Comment No 20 stresses that in order to fulfil the rights the ICESCR guarantees, it is not enough to end formal, or de jure, discrimination; positive action is also necessary. Therefore, states must ‘adopt the necessary measures to prevent, diminish and eliminate the conditions and attitudes which cause or perpetuate substantive or de facto discrimination’.⁶²

Of course, CERD and CEDAW deal exclusively and respectively with eliminating racial discrimination and discrimination against women. The two conventions have common standards to accelerate equality for those protected and to safeguard against discrimination in particular fields, for example, with respect to civil, political, economic, and social rights.⁶³ In addition, both conventions require states parties to take positive steps in order to reduce the inequality.⁶⁴ Hence, while many of the equality and non-discrimination guarantees contained in the UDHR are translated directly into the provisions of the ICCPR, the international legal order has recognized the context-dependent nature of providing equality to specific groups that are vulnerable to inequality and discrimination.

More recently, the CRPD has relied upon equality as an underlying principle.⁶⁵ Article 1 states that the purpose of the CRPD is ‘to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disability’. Equality is deeply rooted within the general principles of the convention, under Article 3 in particular with relation to: non-discrimination, full and effective participation and inclusion in society, respect for difference and acceptance of persons with disabilities as part of human diversity and humanity, equality of opportunity, and equality between men and women. These principles are further reflected in substantive provisions of the CRPD. For instance, Article 5 provides for equality before and under the law, equal protection and benefit of the law, as well as non-discrimination, reasonable accommodation, and specific means to accelerate or achieve de facto equality. Article 12(2), which states ‘that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life’, is critically important for addressing long term structural inequalities that have denied basic legal rights to persons with disabilities. The CRPD also provides for equality in rights for persons with disabilities in a range of other ways, including access to justice,⁶⁶ liberty of the person,⁶⁷ and right to respect for their physical and mental integrity.⁶⁸

The 1989 ILO Convention 169 Concerning Indigenous and Tribal Peoples in Independent Countries also contains a number of provisions which codify the principle of equality and emphasize equality based on respecting differences. Article 2(1) sets out that governments have the responsibility to develop coordinated and systematic action to respect indigenous and tribal peoples’ integrity. Article 2(2)(a) explains that such action includes ensuring that members of these peoples benefit from the rights and opportunities which national laws and regulations grant to other members of the population on an equal footing. Article 3(1) states that ‘[i]‌ndigenous and tribal peoples shall enjoy the full measure of human rights and fundamental freedoms without hindrance or discrimination’. Furthermore, Article 4(1) requires the adoption of special measures for safeguarding the persons, institutions, property, labour, cultures, and environment of indigenous and tribal peoples.

In Europe equality has been codified in Article 14 of the European Convention on Human Rights (ECHR), which protects against discrimination in the enjoyment of convention rights. A similar clause is contained in Article E of the Revised European Social Charter. It is noteworthy that these provisions only operate in conjunction with other treaty rights and do not stand alone. The later Protocol 12 to the ECHR added a broader right to non-discrimination applicable to any right set forth by law. Thus, as in the case of Article 26 of the ICCPR, Protocol 12 does not require the engagement of other convention rights.

Alongside these mechanisms the EU has the power to address discrimination⁶⁹ in certain fields through Article 19 (and Article 157) of the Treaty on the Functioning of the European Union. The EU has administered these powers through the adoption of equality directives including Council Directive 2000/78/EC,⁷⁰ Council Directive 2000/43/EC,⁷¹ and Council Directive 2006/54/EC.⁷² Some scholars have suggested that the use of different directives to address different forms of discrimination has fragmented EU law and made it inconsistent and hierarchical.⁷³ The grounds of race and gender have broader legal protection from discrimination than the grounds of disability, age, sexual orientation, or religion and belief. As a result, civil society and equality experts have consistently urged the EU to adopt a new equality directive that would harmonize EU anti-discrimination law.

Other regional human rights treaties also have codified equality in their guarantees. Article 1(1) of the American Convention on Human Rights contains a general non-discrimination provision. In addition, Article 24 (like Article 7 of the UDHR) states that ‘[a]‌ll persons are equal before the law. Consequently, they are entitled, without discrimination, to equal protection of the law’. The African Charter of Human and Peoples’ Rights contains further strong guarantees to equality and non-discrimination. Important amongst these are Article 3, which stipulates that ‘[e]very individual shall be equal before the law...Every individual shall be entitled to equal protection of the law’, and Article 2, which guarantees the Charter rights without distinction of any kind.

The structural importance of the principle of equality is visible if one unravels the various interwoven strands of the human rights fabric to see how equality is employed to frame and substantiate human rights standards. As is clear from the human rights treaty preambles equality is a core reason why human rights standards exist. Furthermore, it serves both a procedural function, by prescribing how human rights must be applied, and a substantive function, by setting out the scope and nature of human rights obligations. Reflecting on its multidimensional role, the Inter-American Court of Human Rights has placed the principle within the highest order of human rights guarantees, stating:

the principle of equality before the law, equal protection before the law and non-discrimination belongs to jus cogens, because the whole legal structure of national and international public order rests on it and it is a fundamental principle that permeates all laws.⁷⁴

⁷⁴

Juridical Condition and Rights of the Undocumented Migrants (n 34) para 101.

Having examined equality in human rights law architecture, the next step is to consider how it is interpreted and applied by international human rights bodies. At this point it is worth noting that international law has rarely defined or interpreted a right to equality per se. More frequently, the interpretation pertaining to the principle of equality has focused on the right to non-discrimination or equal treatment and the core components of: (i) the definition and scope of discrimination and equal treatment and (ii) the scope of permissible measures to accelerate de facto equality

Among the core international human rights treaties, only CERD, CEDAW, and CRPD define discrimination.⁷⁵ Within these definitions there is a common reference to ‘purpose or effect’ which implies that the definition includes indirect as well as direct forms of discrimination.⁷⁶ The reference to ‘effect’ also suggests that discrimination need not be intentional. Harassment and instruction to discriminate are also forms of prohibited discrimination under international and regional human rights law.

Although other international and regional human rights instruments have not defined discrimination, treaty bodies’ decisions and comments have defined prohibited discrimination. In General Comment No 18, the UN Human Rights Committee (UNHRC) set out a definition which largely mirrors the definition contained in CERD, CEDAW, and CRPD.⁷⁷ It has also set out that under Article 26, ‘[a]‌ differentiation which is compatible with the provisions of the Covenant and is based on objective and reasonable grounds does not amount to prohibited discrimination’.⁷⁸ This definition accords with the Article 14 jurisprudence of the ECHR, wherein discrimination ‘means treating differently, without an objective and reasonable justification, persons in relevantly similar situations’.⁷⁹ Some key questions for establishing discrimination, therefore, appear to be: (i) has there been a difference in treatment, (ii) is the difference in treatment objectively and reasonably justifiable, and (iii) are persons in comparable situations? In practice, a factual approach is often taken to determine what constitutes both difference in treatment and an objective and reasonable justification.⁸⁰ It is also worth noting that a difference in treatment on grounds such as race, sex, disability, and nationality, is typically subject to strict scrutiny and requires ‘very weighty reasons’ to comply with the objective and reasonable justification component of the test for discrimination.⁸¹

As practices of discrimination evolve, legal action has shed light on the complex ways inequality and discrimination appear in society. In the EU case of Coleman v Attridge Law, for example, the Court of Justice of the European Union held that the scope of direct discrimination within Council Directive 2000/78/EC prohibited discrimination by association. To address discrimination as a human rights issue understanding the implications of such forms of discrimination is extremely important. People responsible for caring, for example, for elderly, disabled, or ill relatives or friends, often experience a special vulnerability that results in a cycle of discrimination and inequality. Research has shown that this vulnerability and subsequent inequality and discrimination are acutely felt in developing countries.⁸²

The concept of multiple discrimination, that is, discrimination based on more than one of a person’s characteristics,⁸³ has also been subject to much international scrutiny. The Durban Declaration and Plan of Action, as well as special procedures of the Human Rights Council, have called on states to combat multiple discrimination.⁸⁴ In Teixeira v Brazil, it was recently held that a failure to provide necessary and emergency care to the applicant constituted discrimination on the multiple grounds of her sex, her status as a woman of African descent, and her socio-economic background, which ran contrary to Brazil’s obligations under CEDAW.

Human rights bodies thus are increasingly taking an expansive approach to the definition of discrimination. Some treaty bodies seem prepared to match the emergence of new forms of discrimination with strong legal safeguards. In this process, the principle of equality is a key, as it enables bodies to assess the human rights issues through an equality paradigm and thus cut straight to the core of the concern. At the same time, it provides bodies with practical justification for declaring that these emerging forms of discrimination contravene basic human rights.

In most human rights systems, not all differential treatment will amount to discrimination. Instead, they accept that measures may be necessary to achieve full and effective equality. For instance, under the ECHR ‘[t]‌he right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different’.⁸⁵ ‘Reasonable accommodation’, the denial of which CRPD, Article 2 defines as discrimination, is another example of permitted positive action measures. Within international and regional human rights systems, a growing consensus is developing that legislative and policy measures are sometimes necessary to accelerate progress towards equality for certain groups. Positive action measures are usually presented as social and economic rights mechanisms that aim to redistribute resources or wealth, but viewing positive action solely in these terms dampens its potential to redress structural inequalities that arise from the denial of civil and political opportunities. Hence, political shortlists for women and minority groups are sometimes proposed to increase their political representation and their status within politics.⁸⁶ The former UN Sub-Commission on the Promotion and Protection of Human Rights explained that justifications for positive action are not limited to economic redistribution and include remedying historical injustices, remedying social discrimination, creating diversity or proportional group representation, pre-empting social unrest, and implementing means for nation building.⁸⁷

Human rights bodies have called for measures to address cases where systemic disadvantage has affected particular groups. The UN Human Rights Committee, for example, has called for the adoption of positive action measures, such as quotas, to improve the situation of particularly disadvantaged groups.⁸⁸ Similarly, the ICESCR Committee has stated that ‘[s]‌tates parties may be, and in some cases are, under an obligation to adopt special measures to attenuate or suppress conditions that perpetuate discrimination’.⁸⁹ The Committee clarified that these measures are legitimate as long as they represent a reasonable, objective, and proportionate means of redressing de facto discrimination. Such measures will ordinarily be temporary, but they can be permanent in exceptional cases, such as in making reasonable accommodations for people with sensory impairments.⁹⁰ Likewise, CERD may require positive action measures be taken. In General Recommendation No 32, the CERD Committee set out that the concept of special measures is based on the principle that the Convention requires states, when circumstances warrant, to adopt temporary special measures designed to secure to disadvantaged groups the full and equal enjoyment of human rights and fundamental freedoms.⁹¹ Furthermore, the General Recommendation makes it plain that special measures are not an ‘exception to the principle of non-discrimination but are integral to its meaning and essential to the Convention project of...advancing...effective equality’.⁹² In sum, reasonable, objective and proportionate positive or special measures are an integral part of the principle of equality and must be applied temporarily or (exceptionally) permanently, when it is necessary to achieve equality.

Regionally, the Inter-American Court, the European Court of Human Rights, and the European Committee on Social Rights have all confirmed that a state’s failure to implement positive action measures can contravene their equality and non-discrimination obligations.⁹³ In spite of their legitimacy in international human rights law, positive action measures remain contentious in many national systems. This is partly due to the idea that they are an affront to individual autonomy and partly because adopting such policies can reduce the advantages that those in the dominant group enjoy. In light of the tension behind such measures, it is perhaps unsurprising that EU anti-discrimination law adopts a more cautious approach. Under EU law, in cases where there is a need for a tiebreaker, an employer can favour employing a woman over a man if there is no reason which would favour the man’s appointment,⁹⁴ but an employer cannot automatically and unconditionally favour the employment of a woman in the recruitment process.⁹⁵ Research indicates that in some legal systems such positive action measures have been successfully implemented, without resorting to contentious measures such as quotas, through agreements between state regulators and private enterprises. The agreements outline procedural and substantive requirements that a private enterprise must meet to accelerate the position of disadvantaged groups.⁹⁶ Thus it seems human rights law and policy has begun to approach such political contexts with more nuanced solutions in order to achieve effective results.

Equality also has a pivotal role in the practical application of human rights. It has consistently underscored justifications for the decisions of human rights bodies, the defence of human rights victims, and the basis for holding states to account for human rights violations. Equality’s dual functions as a foundation for human rights norms and a guide for their implementation and application continue to be at the core of contemporary human rights law.

The steady development of the principle of equality and its influence on international and regional human rights law have led some to suggest that an independent right to equality exists in international human rights law.⁹⁷ As noted above, international human rights treaties do not provide for a right to equality per se, but examining the interpretation of human rights norms indicates that such a right is alive when human rights bodies discuss non-discrimination or equality before the law. Has international human rights jurisprudence thus fashioned a substantive right to equality in all but name? Answering this question first demands consideration of what is meant by a substantive right to equality. Perhaps the closest approximation of an agreed definition of a right to equality is contained in the Declaration of Principles on Equality. Principle 1 states:

The right to equality is the right of all human beings to be equal in dignity, to be treated with respect and consideration and to participate on an equal basis with others in any area of economic, social, political, cultural or civil life. All human beings are equal before the law and have the right to equal protection and benefit of the law.⁹⁸

⁹⁸

The Equal Rights Trust (n 97) Principle 1.

Holistic consideration of international human rights jurisprudence leads to a strong presumption that a right to equality exists. Many of the characteristics that would be associated with this right, such as promoting equal respect and giving it autonomous and universal application, have previously been read into key elements of international human rights law. As noted in Section 4 above, human rights treaty bodies, courts, and more recently treaties, have adopted an expansive definition of discrimination which includes, for example, a failure to take positive action measures and (under the CRPD) the denial of reasonable accommodation for persons with disabilities.⁹⁹ These examples demonstrate a shift from the formal conceptions of equality towards the substantive conception of equality. The obligation to take positive action measures indicates that a principal aim of international human rights law is rooted in substantive equality. Therefore, while human rights treaty law does not provide for a right to equality per se, in practice the human rights bodies’ interpretations of these norms suggest that the right has developed organically.

Several benefits may result from accepting the existence of a right to equality. First, such recognition reinforces the existing jurisprudence of many international human rights bodies that a significant purpose of human rights is to help those who are most vulnerable and disadvantaged. Inequality is often the seed of long term, systematic human rights violations. Social, economic, and political inequality is a feeding ground for mistrust, anger, hatred, exclusion, and violence that cultivates prejudice, separation, and stigma among close communities and individuals, as occurred for example, in Sri Lanka, Northern Ireland, and the former Yugoslavia. A right to equality aimed at addressing the position of the vulnerable and the disadvantaged benefits not only the individual as a right holder, but also broader society, by nurturing social harmony through seeking improvements in democratic institutions.

Second, equality as a substantive right fits more logically with the development of current jurisprudence. It enables human rights practitioners to move away from viewing equality and non-discrimination provisions as largely last resort procedural provisions. Instead, the provisions indicate something greater about the purpose and function of human rights law, setting out how a state must substantively treat everyone who is subject to its jurisdiction.

Third, the substantive model of equality provides a sophisticated mechanism to analyse potential human rights violations and to evaluate the justifications offered for differential treatment and status. A right to equality based on equal respect or consideration for the individual will be more representative for those who have experienced inequality or discrimination than formal notions of equality that are largely based on a comparative rationalist approach. In some cases, the latter approach can disadvantage the victim by requiring them to explain how their treatment has been more adverse than another person’s treatment because of a characteristic that the other does not have. Basing the analysis on equal respect, or consideration, allows the justice system to assess whether adverse treatment because of a characteristic is inherently wrong, irrespective of how another person is treated.

An added benefit is that substantive equality may transcend the historical polemics that exist between civil, political, economic, and social rights, promoting the interconnectedness and universality of all human rights. Emerging from the jurisprudence are techniques and concepts that provide important bridges between traditional classifications of rights. Political distinctions within human rights often collapse when considered through the lens of equality. Finally, in complex cases of national importance, equality arguments often bring added, even decisive, weight to the legal debate. For example, it has been central to ending the criminalization of same sex relationships in countries such as India;¹⁰⁰ in other jurisdictions, such as the United Kingdom, it has been crucial for defending the right to liberty.¹⁰¹ In this way, equality arguments may help to depoliticize issues, or at least to make them more politically digestible. In contentious cases, the principle of equality is there to remind courts that at the heart of the case is a victim wishing to live an ordinary life with the equal concern and consideration that is afforded to others.

This chapter has addressed the manner in which equality operates as a structural principle in contemporary human rights law. As a basic principle of democracy, equality dates back at least to classical Greece. Today, equality still infuses modern ideas about democracy, the rule of law, and the role of individuals in society. While notions of equality sometimes differ due to political disagreement about which conception of equality to apply to a particular situation, most contemporary constitutions agree that a right to equality is a necessary ingredient for democracy.

This chapter has also shown that the principle of equality has two main structural functions. First, it is a foundation upon which the architecture of human rights has been designed. The principle of equality provides justification for the adoption of human rights standards, gives instruction about how human rights norms must be applied, and is applied directly through its transposition into substantive rights, such as non-discrimination and equality before the law. Viewing the impact of the principle of equality from this perspective demonstrates how it is instrumental in reinforcing other fundamental human rights principles, such as universality. Second, in addition to this, equality serves an immensely important interpretative and guidance function for policy-makers, courts, and human rights bodies charged with applying and developing human rights standards. Recent human rights developments, in particular the adoption of the CRPD, demonstrate that equality continues to underpin the way forward for guaranteeing and protecting human rights. It is not merely as a procedural mechanism that equality performs this task, but more significantly as a genuine normative instrument that illustrates why human rights standards are necessary and how they ought to be interpreted. Without the principle of equality’s guiding hand, the landscape of human rights would look fundamentally different, and it is likely that human rights standards would be poorer in both content and form.