Institutional mechanisms Finally, the Human Rights Council should introduce a new special procedure, which may be either a Working Group on Equality or a Special Rapporteur on Equality, whose mandate would be to monitor states’ compliance with their obligations under international human rights law to give effect to equality rights. This mandate would be based on the Declaration on Giving Effect to Equality Rights recommended above.
1 This memorandum has been prepared by Dr Dimitrina Petrova, the founding Executive Director of the Equal Rights Trust, for the Global Citizenship Commission.
2 See, e.g., contrasting interpretations by the HCR of “indirect discrimination” in Communication No. 998/2001, Althammer v Austria, 8 August 2003; Communication No. 1106/2003, Godfried et al. v Austria: and Communication No. 976/2001, Derksen v The Netherlands.
3 Among the main interpretative documents issued by treaty bodies, two should be referenced in particular: UN Human Rights Committee, General Comment 18, Non-discrimination, U.N. Doc. HRI/GEN/1/Rev.1 at 26 (1994); and UN Committee on Economic, Social and Cultural Rights, General comment No. 20: Non-discrimination in economic, social and cultural rights (art. 2, para. 2, of the International Covenant on Economic, Social and Cultural Rights), 2 July 2009, E/C.12/GC/20.
4 UPR Info Database, available at: http://www.upr-info.org/database/.
5 Schiek, D. et al, Non-discrimination Law, Hart Publishing, Oxford and Portland, Oregon, 2007, p. 8-9. Note that in some countries, such as the UK, the term “discrimination law” is preferred: see, e.g. Palmer, C. et al., Discrimination Law Handbook, Hart Publishing, 2007.
6 Hepple, B., Equality: The New Legal Framework, Hart Publishing, 2011, p.1. This shift in terminology can be seen in the UK with the move from the Sex Discrimination Act 1975 and further non-discrimination laws to the Equality Act 2010.
7 Hepple, B., see above note, p.11 presenting a table summing up five generations of equality law in the UK.
8 Article 1 of Equality Act 2010 (not yet in force).
9 In the UDHR, these are sex, race, colour, language, religion, political or other opinion, national or social origin, property, birth or other status. Further grounds have been added by subsequent instruments.
10 Committee on the Elimination of All Forms of Discrimination against Women, General Recommendation No. 19 (llth session, 1992), Violence against women, Para 1.
11 One key difference is European law, unlike international human rights law, relies on concepts of “direct discrimination”, “indirect discrimination” and other forms of prohibited conduct, and does not – as a matter of principle – provide a general definition of discrimination. By contrast, the HRC has provided (in GC18, Para7) a general definition of discrimination, based on pre-existing ground specific definitions in ICERD and CEDAW: “While these conventions deal only with cases of discrimination on specific grounds, the Committee believes that the term "discrimination" as used in the Covenant should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.”
12 See the Introduction to Declaration of Principles on Equality (London, Equal Rights Trust, 2008) signed by Bob Hepple and this author.
13 Often, governments and other stakeholders in states where equality law is under-developed or missing are not aware of this field. Many states have group specific or area specific laws that they would typically point at when asked about their equality legislation. For example, these can be declarative framework laws about the advancement of women, social cohesion, disabled persons, etc.; however, these pieces of legislation do not qualify as equality legislation if - as the case most often is - they do not contain enforceable equality rights. Accordingly, these states do not have any relevant jurisprudence resulting from discrimination claims considered by courts.
14 The suggestions outlined in this section are illustrative and non-exhaustive proposals for promoting and protecting equality rights in the 21st Century.
15 In the long run the governing principle of equality will be strengthened if the different strands are brought together. For example, it should not be necessary for a disabled black woman in Canada to have to choose the correct pigeonhole in which to put her case, whether it be race, or gender, or disability. Equality is an over-arching principle: there is no hierarchy of grounds of discrimination.
16Declaration of Principles on Equality, Equal Rights Trust, London, 2008.
17 For a list of signatories, see: http://www.equalrightstrust.org/ertdocumentbank/2008-11-13%20Endorsers.pdf. Since its adoption, the new framework expressed in the Declaration has been used as the basis for those developing anti-discrimination and equality legislation in a number of countries and has received increasing support at the international and regional levels. In 2009, the UN Committee on Economic, Social and Cultural Rights (CESCR) made use of a number of key concepts from the Declaration in its General Comment 20: Non-discrimination in economic, social and cultural rights. In 2011, the Parliamentary Assembly of the Council of Europe adopted a Recommendation calling on the 47 Council of Europe member states to take the Declaration into account when developing equality law and policy. The Declaration has been described by judges as “the current international understanding of the principles on equality (Naz Foundation v Government of NCT of Delhi and Others WP(C) No. 7455/2001, Para 93.)
18 Petrova, D., “The Declaration of Principles on Equality: A Contribution to International Human Rights”, in Declaration of Principles on Equality, Equal Rights Trust, London, 2008, p. 31.
19 Principle 1 of the Declaration defines the right to equality: “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” (Declaration of Principles on Equality, The Equal Rights Trust, London, 2008, Principle 1, p. 5.)
20 Principle 3 of the Declaration states: “To be effective, the right to equality requires positive action. Positive action, which includes a range of legislative, administrative and policy measures to overcome past disadvantage and to accelerate progress towards equality of particular groups, is a necessary element within the right to equality.” (Declaration of Principles on Equality, Equal Rights Trust, London, 2008, Principle 3, p. 5.)