Equality and Non-Discrimination under International Law

Volume II

Stephanie Farrior, Stephanie Farrior

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351568029
• Edition: 1
• Topic: Historia
• Subtopic: Historia del mundo

The principles of equality and non-discrimination lie at the heart of international human rights law. They are the only human rights explicitly included in the UN Charter and they appear at the beginning of virtually every major human rights instrument. This volume contains selected works by leading authors on the subject of equality and non-discrimination under international law. The selections are grouped into four sections. The first presents essays that explore theoretical concepts of equality and non-discrimination. The next addresses the development of international legal standards on the subject. The third presents articles analyzing how those standards have been interpreted and applied by UN and regional human rights bodies, and the last contains works on what measures besides legal action States are to take to in order to achieve equality and non-discrimination.

Part I
Concepts of Equality and Non-Discrimination

[1]
Equality

Jarlath Clifford

EQUALITY is an immensely challenging, complex, and dynamic concept. Although most persons have an intuitive understanding of equality,¹ their diverse characteristics and range of experiences mean that they are likely to reach very different conclusions when asked to explain equality. In other words, equality means many things to many people. These various perspectives are made manifest both positively and negatively in society. Often, the human diversity that should be promoted, embraced, and cherished, instead triggers prejudice, discrimination, and oppression. Laws and policies may draw conscious and unconscious distinctions that discriminate against particular groups or individuals.² The net effect of de facto and de jure discrimination is that those perceived as different are unable to enjoy fundamental human rights on an equal basis with others, and they continue to be abused and denied basic social goods, benefits, and public safeguards.

Against this backdrop, international human rights law has developed a multidimensional relationship with the principle of equality. As a structural principle, equality provides a conceptual framework through which to understand and analyse human rights issues—and through which to justify human rights decisions. It provides a spotlight for identifying key issues in complex cases and acts as a moral lever for explaining human rights protections.³ Thus, equality (together with the related principle of non-discrimination) provides a moral and analytical mechanism for ensuring that all people effectively enjoy human rights guarantees. The principle of equality also binds human rights norms and embellishes them with both a procedural and substantive content. Taking stock of these dimensions, this chapter will examine the normative and philosophical bases of the principle of equality. Second, it explores and maps out how contemporary international human rights law transposes and applies the principle, especially as it relates to the prohibition of discrimination. Finally, the chapter will explore the claim that a right to equality exists in international law and will attempt to identify some of the benefits of this right.

The principle of equality in international human rights law is multifaceted. At the theoretical level, when scholars talk of equality, they often talk about different concepts which, while rooted in the same overarching framework, frequently can have very different implications for human rights. These discussions broadly encompass the concepts of formal and substantive equality. Formal equality refers to the idea that things that are the same or similar should be treated in the same or similar ways. As Section 2 will discuss, this concept is linked to the notion that equality requires consistent treatment of all. On the other hand, substantive equality refers to the idea that equality provisions should be sensitive to the informal arrangements and barriers that cause inequality for some, and account for them by requiring different treatment for persons who are disadvantaged in society. Section 2 of this chapter sets out that one or more conceptions of equality based on these two concepts, such as equality of opportunity, equality of outcomes, or transformative equality, are generally adopted when formulating equality law and policy. Alongside this theoretical discourse, international human rights law transposes these concepts within the principle of equality primarily through the dynamic of equality and non-discrimination. Thus, in practice the prohibition of discrimination, defined in Article 1(1) of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (CERD), the requirement to take some form of positive or special measures found in Article 1(4) of CERD, and so forth, represent the key articulations of the principle of equality in international human rights law. Sections 3 and 4 discuss in greater detail how these two strands of the principle of equality have been transposed in international human rights instruments and interpreted within its jurisprudence.

1. The Philosophical Foundations of Equality

Equality is a common cornerstone of many contemporary democracies. To appreciate why it occupies a cherished position in contemporary legal orders, it is necessary to examine how the understanding of equality has evolved over time.⁴ The United Nations Educational, Scientific, and Cultural Organization’s (UNESCO) Birthright of Man illustrates that the idea of equality has preoccupied social thinkers and philosophers from all civilizations throughout history.⁵ Some scholars contend that even social philosophies such as Confucianism, which they traditionally perceived as promoting societal difference and inequality, have made important contributions to our current understanding of the idea of equality.⁶

An understanding of why contemporary rights-based democracies have appropriated equality as a constitutional norm begins with classical Greece.⁷ Thucydides proposed that equality prescriptively indicates how law ought to operate in a democracy.⁸ In particular, he suggested that procedural equality is instrumental for social justice—a key component of the democratic order. Plato, on the other hand, argued that the key differences which existed between individuals, for example, on the basis of sex, should be accounted for in exigent times.⁹ Greek philosophy’s most significant contribution to the notion of equality is provided by Aristotle’s maxim that ‘things that are alike should be treated alike’,¹⁰ with an implicit corollary that the unlike should be treated according to the relevant differences.

Aristotle’s maxim directly underpins the formal ideas of equality that are important for addressing specific human rights concerns, for instance, how the legal system should react when laws on their face treat some people unfavourably because of a shared characteristic. Yet, classical Greek notions have leaned towards procedural forms of equality and lack many characteristics that are integral to modern human rights norms. One such characteristic is universality. This basic human rights principle is absent from Greek thinking, which envisaged equality between citizens of the state, but not between citizens and non-citizens. Indeed, the idea of equality was applied differently to different people, depending on their political status. The idea of universal citizenship, a concept with which international human rights law and contemporary constitutions struggle today, was absent from classical Greek philosophy.¹¹

Universalism was critical to Christian thinking on equality. St Thomas Aquinas emphasized an approach to equality that united everyone under God’s direction in a common bond of happiness. Aquinas’ concept of divine law commanded that all unite in mutual love of God.¹² Thus, in contrast to Greek philosophers who limited the application of the principle of equality to members of set democratic orders, Aquinas presupposed that by divine design and law the principle of equality applied to everyone.

Natural law theorists added to the body of knowledge which has shaped modern understanding of the principle of equality. In Leviathan, for instance, Hobbes set out his vision of equality within natural law:

Nature hath made men so equal in the faculties of body and mind as that, though there be found one man sometimes manifestly stronger in body or of quicker mind than another, yet when all is reckoned together the difference between man and man is not so considerable as that one man can thereupon claim to himself any benefit to which another may not pretend, as well as he.¹³

Hobbes thus suggested that despite the inevitability of individual differences with respect to physical and mental talents, such differences should not by themselves imbue benefits. Conor Gearty has argued that Hobbes’s basic premise with respect to equality is that if everybody is equal in terms of natural rights, they must be able to use their equal natural rights to make choices regarding their participation in society. Furthermore, he argues that the natural law discourse of Hobbes’s time created a progressive vision of equality that provides direction for modern law-making in facilitating ‘real’ equality.¹⁴ As with other natural law thinkers, Hobbes believed that equality imparted natural rights on the basis of an individual’s humanity. John Locke asserted that, under natural law, all men were equal in the sense that every man had an equal right to his natural freedom without being subjected to the will or authority of any other man. Yet, he did not suggest that all men were equal in everything: ‘I cannot be supposed to understand all sorts of equality: age or virtue may give men a just precedency: excellency of parts and merit may place others above the common level.’¹⁵ Likewise, Thomas Paine declared that through the will of God all men are born equal with equal natural right, and the only basis of distinction is that between the sexes.¹⁶ By applying this position, natural law theorists were situating the discourse of equality within rights-based language, thereby enabling individuals to assert the principle of equality for political and legal ends.

Many contemporary political and legal philosophers have contested the normative relevance of equality for underpinning modern legal norms. Some scholars, such as Nozick, suggest that equality is normatively defunct and cannot be used to underwrite governmental interference in the distribution of resources.¹⁷ Others recognize that different notions exist when people talk of equality. Berlin, for example, analyses two of these notions: (i) equality as rules and (ii) equality proper.¹⁸ After balancing the two against each other, Berlin concludes that equality as rules is a more convincing notion of equality, because even in conditions where a moderate form of equality proper is permitted to flourish:

the criterion of equality has plainly been influenced by something other than the mere desire for equality as such, namely, desire for liberty or the full development of human resources, or the belief that men deserve to be as rich or as powerful or as famous as they can make themselves—beliefs which are not connected with the desire for equality at all.¹⁹

Other scholars, such as Peter Westen²⁰—and later Christopher Peters²¹—argue that equality is merely a tautology, entirely ‘circular’, because it tells us to treat like people alike, but it is completely silent about what is meant by ‘like people’. As with Berlins observation about equality proper, they assert that equality without further moral guidance says nothing about how we should act and is anterior to and dependent upon rights to give it form a...