Article 7 – the equality and non-discrimination provision1

Evolution of the legal framework

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2. Evolution of the legal framework
International human rights law has continued to recognize the “triple status” of equality. Most notably, the ICCPR contains a freestanding equality clause (Article 26), and both the ICCPR and ICESCR include accessory rights to non-discrimination (Article 2(1) and Article 2(2) respectively). Moreover, a number of specialized treaties prohibit discrimination and promote equality in respect of certain categories of people defined by race, sex, age (children), and disability. The specialized treaties include the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) (1965), The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (1979), the Convention on the Rights of the Child (CRC) (1989) and the Convention on the Rights of Persons with Disabilities (CPRD) (2006). Each of the general and specialized treaties are monitored by an expert committee which conducts country reviews, issues general comments or recommendations, and considers individual complaints.
The body of documents setting out treaty body views on equality rights is too vast to be summed up here. Still, we can note certain features of these sources: first, the inconsistent interpretations of the main concept of discrimination even within the documents produced over time by the same treaty body;2 second, the extremely rich and detailed consideration of a number of elements of equality rights and the application of the relevant treaties in giving effect to these rights; and third, the evolution of interpretations on the content of the right, from formal / procedural toward substantive equality, and related evolutions regarding both the purpose and frameworks of promoting equality.3
Apart from the treaty-based monitoring mechanisms, the Universal Periodic Review (UPR) has generated a large number of recommendations related to equality rights. However, as there is no category capturing equality and non-discrimination as distinct issues in the UPR information database, it is difficult to generate the relevant statistics.4 This difficulty of categorization reflects the permeating, cross-cutting, and truly ubiquitous nature of equality rights in the UN system; it is challenging, for example, to isolate equality rights from thematic entries such as “racial discrimination”, “women’s rights”, “sexual orientation and gender identity”, or indeed the more general categories of civil and political rights, and economic, social and cultural rights.
Modern non-discrimination law has also developed within a number of national jurisdictions, based on evolving national and sub-national equality legislation.5 In recent years, experts prefer to talk about “equality law”, which has subsumed non-discrimination law, reflecting the evolution of the right to equality subsuming the right to non-discrimination. In the words of the late Professor Sir Bob Hepple QC, who was Chair of the Equal Rights Trust:
The shift of focus from negative duties not to discriminate, harass or victimise, to positive duties to advance equality, justify the re-invention of this branch of the law as equality law, of which discrimination law is an essential but not exclusive part.6
In states where equality law exists and is relatively strong, it has undergone evolutions over the last five decades which, whilst country-specific, can be described in terms of global trends. Some authors have referred to “generations” of equality law.7 In terms of the aims of equality law, there has been a developing conception answering the question: what do we wish to equalize? Accordingly, there has been a movement from equality of treatment through equality of opportunity and on towards equality of participation or equality of capabilities.
In terms of the conceptual frameworks of equality law, the trends can be summed up as follows: from an approach that is individualistic and defensive to one that is collectivistic and proactive; from a patchwork of norms to a unitary (unified, integrated) framework; from regulation of contractual relations in employment and other areas to a human rights approach; clarifying the definitions of discrimination, harassment, and victimization and applying them consistently across all protected characteristics; widening the circumstances in which positive action (affirmative action) is allowed; increasing focus on the interconnectedness of the different types of inequalities and disadvantages; expanding positive duties on public sector bodies to advance equality in respect of all protected characteristics; and the beginning of attempts to relate status equalities with socio-economic equality (e.g. in the UK there is a new duty on public authorities “to have due regard to socio-economic disadvantage when taking strategic decisions.”8)

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