5. Realizing equality rights in the 21st Century14 To strengthen the promotion and protection of equality rights in 21st Century, it is vital that all states adopt comprehensive anti-discrimination or equality laws. Certainly, it has become customary for UN treaty bodies, when reviewing a state party’s performance under a particular treaty, to include a standard recommendation in their concluding observations to this effect. This recommendation is based on a number of treaty provisions, similar to ICCPR Article 2(2):
Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant. Further, the UN should take steps to integrate and modernize the conceptual framework, the instruments, and the institutional mechanisms for advancing equality rights. Taking each of these in turn:
Conceptual framework The UN should embrace and promote the Unified Human Rights Framework on Equality which emphasizes the integral role of equality in the enjoyment of all human rights, and seeks to overcome the fragmentation, inconsistencies, and gaps in the field of equality law, policies, and practices. The Unified Human Rights Framework on Equality is a holistic approach that recognizes both the uniqueness of each different type of inequality and the overarching aspects of different inequalities. The Unified Framework brings together: (a) types of inequalities based on different grounds, such as race, gender, religion, nationality, disability, sexual orientation, and gender identity, among others; (b) types of inequalities in different areas of civil, political, social, cultural, and economic life, including employment, education, and the provision of goods and services; and (c) status inequalities (race, gender, etc.) and socio-economic inequalities.15 This conceptual framework is expressed in the Declaration of Principles on Equality,16 adopted in 2008 and endorsed by thousands of experts and activists on equality and human rights from all over the world.17 The 27 principles on equality are based on legal concepts that have evolved in UN, regional, and national jurisprudence. Although many of the terms employed in the Declaration are sufficiently well established, the resulting conception of equality in its entirety opens a new space for standard development in the international human rights system.18 As defined by the Declaration, the right to equality has as its elements the equal enjoyment of all human rights, as well as the equal protection and benefit of the law.19 Most importantly, it encompasses equal participation in all areas of life in which human rights apply. Equality is not only a right to be free from all forms of discrimination, but also a right to substantive equality in practice. Under this approach, positive (affirmative) action is a necessary element of the right to equality.20 Instruments The UN should also adopt a Declaration on Giving Effect to Equality Rights, as a step towards integrating and modernizing its role in promoting equality. The UN Declaration should be based on the Declaration of Principles on Equality, and its purpose should be to spell out the general principles and essential elements, both substantive and procedural, of national equality legislation.
The general principles of national equality legislation will include, for example: the need for specificity and detail (as opposed to framework Acts); the participation of stakeholders in making laws and policies; the duty to educate the public on equality rights; and the prohibition of regressive interpretation. The substantive elements will include, for example: the provision of legal definitions of the right to equality and the right to non-discrimination; a legal definition of discrimination which should itself define all forms of prohibited conduct, including direct and indirect discrimination, harassment, denial of reasonable adjustment, incitement to discrimination, etc.; a formulation of the principle of positive action; the specification of rights holders and duty bearers; and obligations to gather information, including statistics, which is relevant to inequalities. Procedural elements will include, for example: procedures and mechanisms available to victims who wish to complain; standing rules; rules of evidence; rules of proof of discrimination, including the critical procedure of the reversal of the burden of proof in civil proceedings; remedies and sanctions; and specialized bodies.