Towards a common standard of achievement? Developments in international equality law

• Jurisdiction: South Africa
• Published date: 23 May 2019
• Date: 23 May 2019
• Author: Titia Loenen
• Pages: 197-213
• Citation: 2001 Acta Juridica 197

Towards a common standard of

achievement? Developments in

international equality law

TITIA LOENEN*

Utrecht University

I INTRODUCTION

Equality remains a central issue on the global human rights agenda.

Since the Universal Declaration of Human Rights, which opens with

proclaming the inherent equality of all human beings and a prohibi-

tion of discrimination on any ground,

1

an impressive body of inter-

national human rights law has developed, covering many forms of

discrimination in diverse areas of law and social life. At the beginning

of this new century it seems proper to step back and reflect on what

has been achieved so far and where we stand today.

It should be clear from the outset that space does not allow for a

comprehensive comparison of all provisions dealing with equality and

non-discrimination. What I have in mind is, firstly, to try to paint a

picture of the main equality provisions in international human rights

instruments, including certain regional ones I am familiar with, that is

those of the Council of Europe and the European Union. Again, space

will only allow for a broad focus on their general scope and content.

Secondly, I will go into the conceptual development of the right to

equality and non-discrimination from a strictly formal to a much

broader notion which emerges from this account.

2

I will argue that

this common standard of achievement or acquis international should

function as a global minimum standard. As equality is, in a way, an

integral part of all fundamental rights I will in addition argue that this

broader notion of equality should be incorporated into the interpreta-

tion and application of other human rights as well.

* MA (History) LLM and PhD (Leiden); Professor of Women’s legal studies, Utrecht

University, the Netherlands.

1

Articles 1 and 2 respectively.

2

Since the conceptual studies on equality and non-discrimination in international law by E W

Vierdag The Concept of Discrimination in International Law (1973) and W McKean Equality and

Discrimination Under International law (1983), a lot has changed, which seems largely due to the

tremendous growth of the importance of international human rights.

197

2001 Acta Juridica 197

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II EQUALITY IN THE CONVENTIONS OF THE UNITED

NATIONS

(1) The International Covenant on Civil and Political Rights (ICCPR)

The major equality clause in the so-called International Bill of Hu-

man Rights is art 26 of the ICCPR. It guarantees everyone equality

before the law and requires the law of the State Parties to prohibit any

discrimination and to guarantee all persons equal and effective protec-

tion against discrimination on any ground such as race, colour, sex,

language, religion, political or other opinion, national or social origin,

property, birth, or other status.

The scope of art 26 of the ICCPR is very broad, as is affirmed by its

supervising organ, the Human Rights Committee (HRC). In General

Comment number 18 on non-discrimination the HRC states clearly

that art 26 ‘prohibits discrimination in law or in fact in any field

regulated and protected by public authorities’.

3

Thus it is not limited

to rights which are covered by the ICCPR. The General Comment

emphasizes the positive duty to realize equal rights for all, which

means taking all kinds of measures to achieve this. Such measures

may also encompass (temporary) preferential treatment.

The HRC reiterates some of these points in its recent General Com-

ment number 28 on equality of rights between men and women (art 3

of the ICCPR) in even bolder words: art 26 ‘requires states to act

against discrimination by public and private actors in all fields’.

4

This

all-embracing duty to eliminate discrimination seems to reflect the

idea that the State is responsible, one way or another, wherever dis-

crimination occurs.

General Comment number 28 is also interesting in the way it ela-

borates on the meaning of art 3 for the other rights enshrined in the

ICCPR. Thus in relation to art 7 (prohibition of torture or other

cruel, inhuman or degrading treatment) it requires states to provide

information on national laws and practices to protect women from

domestic and other types of violence, including rape. In respect of art

12 (liberty of movement) the Committee stresses that specific regula-

tion of clothing to be worn by women may violate this right if their

liberty of movement is subject to such a constraint. And with regard

to equality of treatment in relation to the right to marry as enshrined

in art 23, polygamy is unequivocally brandished as incompatible.

3

HRC General Comment Number 18 on Non-Discrimination (21 November 1989) UN

Doc./CCPR/C/21/rev.1/Add.1. All documents of the supervising bodies to the major human

rights treaties are easily accessible through the website of the UN High Commissioner on Human

Rights: www.unhchr.ch.

4

HRC General Comment Number 28 on Equality of Rights Between Men and Women

(art 3) (29 March 2000) UN Doc./CCPR/C/21/Rev.1/Add.10 (emphasis added).

198 EQUALITY LAW

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