1. Introduction The right to non-discrimination and the right to equality (together, equality rights) are fundamental norms of international human rights law. The emerging global consensus is that these are two distinct rights, whereby the right to non-discrimination is narrower in content and subsumed in the right to equality. Non-discrimination is a central and essential element of equality.
Equality (and non-discrimination subsumed in it) has a triple status in the UDHR and subsequent human rights instruments: it is a general principle, an autonomous right, and an accessory right.
In the UDHR, equality – “equal and inalienable rights” of “all members of the human family” – is a general principle, the recognition of which is the “foundation of freedom, justice and peace in the world.” (Preamble, first recital). “Equal rights of men and women” in particular are reaffirmed in the fifth recital. Article 1 then proclaims: “All human beings are born free and equal in dignity and rights.” Article 1 can be regarded as expressing both a general principle of the human rights framework and a right to be equal in respect of the enjoyment of rights.
Autonomous right The first sentence of Article 7 of the UDHR reads: “All are equal before the law and are entitled without any discrimination to equal protection of the law.” This provision enshrines an autonomous, free-standing right to equality with two discernible elements to its content: equality before the law and equal protection of the law.
Accessory right Article 2 of the UDHR provides a right to non-discrimination attaching to all other human rights recognized in the UDHR: “Everyone is entitled to all the rights and freedoms set forth in this Declaration, 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. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.”
This provision includes an accessory (subsidiary) right to equality, or, to be more precise, as many separate accessory rights to equality as there are human rights recognized in the UDHR (e.g., a right to equality in respect of the enjoyment of the right to life; a right to equality in respect of liberty and security of person; and a right to equality in respect of freedom of expression, etc.).
The second sentence of Article 7 also affirms non-discrimination as an accessory right. “All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.”
The fact that the three different aspects of the status of equality are all rooted in the UDHR is important for the subsequent development of equality rights in international human rights law. The enshrinement of an autonomous right to equality has great practical value. For example, in some jurisdictions, a separate, stand-alone right to non-discrimination that is not dependent on, and subsidiary to, other rights can be relied upon to strengthen equality in socio-economic areas of life in respect of which the state does not recognize relevant rights (e.g., the right to employment, education, or health).