Article 7 – the equality and non-discrimination provision1

Current outlook and challenges

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4. Current outlook and challenges

Most states around the world are parties to international and regional human rights treaties that contain prohibitions on discrimination. But anti-discrimination legislation is inadequate or non-existent in a majority of countries. Many states have a constitutional protection of equality consonant with UDHR, but national constitutions rarely contain a definition of discrimination and are usually formulated in very general terms at the level of legal or political principle. These equality provisions in the constitutions are seldom applied directly or even invoked by the courts. Public awareness of discrimination is vague: people do not know what conduct or policies amount to a violation of equal rights provisions and what remedies should be available to victims. And the case law on discrimination – international and national – is still weak, compared to case law related to other rights.

The anti-discrimination struggle remains very fragmented, as does its conceptual framework. Different grounds of discrimination (e.g., gender, race, religion, sexual orientation and identity, language, disability, age, etc.) are regulated differently and there is little cooperation of NGOs and government agencies across the different strands of equality. In certain national and regional legal systems, equality legislation has evolved in the last few decades. It contains legal concepts, definitions, approaches, and jurisprudence, some of which have taken the protection against discrimination and the realization of the right to equality to a higher level. However, the disparity between international human rights law and national as well as regional approaches to equality hinders progress. For instance, there are different definitions of discrimination in the leading jurisdictions where equality law has evolved (European Union, UK, etc.) and international human rights law.11 A major effort is required to modernize and integrate legal standards related to the protection against discrimination and the promotion of equality.12

The most striking feature in the global picture of the protection from discrimination and the promotion of equality is the large differences among states in respect to having legal and policy frameworks related to equality. With constitutional protection purely rhetorical, most states lack a developed, or indeed any, legislative and policy framework related to equality that would give effect to equality rights enshrined in international human rights law and/or their own constitutions. At the other end of the spectrum, up to 30 percent of UN member states (Canada, South Africa, the USA, and all European Union member states) have comprehensive and well-developed equality laws and policies, covering extensive, closed or open-ended lists of grounds (sex, race, religion, sexual orientation, disability, etc.) and areas of life (administration of justice, government and public functions, employment, education, health, provision of goods and services, etc.), and providing legal definitions of prohibited conduct as well as effective remedies.13

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