Legal Standards on Equality and Non-Discrimination

Purpose

This open-ended core project is central to ERT’s mission. It has two objectives. First, it aims at systematising, modernising and publicising in appropriate formats legal standards related to the protection against discrimination and the promotion of equality. Second, it aims at the adoption, by states, non-states actors and international organisations, of better legislation and policies related to equality, as well as strengthening their implementation.

This project’s main strategies are (i) advocacy: making expert recommendations to authorities and other key stakeholders to adopt and/or improve equality legislation and equality policies; (ii) capacity building: increasing the capacity of key stakeholders to develop their equality agenda and participate proactively in the strengthening of the equality regime in their country; (iii) research: documentation on equality rights issues and legal analysis related to equality rights.

In the framework of this core project, ERT has elaborated through inclusive consultations and publicised a short document reflecting a moral and professional consensus among human rights and equality experts from around the world, entitled Declaration of Principles on Equality. It serves as a basis for evaluating existing legal and policy provisions and developing better national standards of equality law and policy.

Project Description

Stage 1: Developing the Declaration of Principles on Equality

1.1 Publication of Non-Discrimination and Equality Standards Compendium

The project began in June 2007 with an examination of international, regional and national legal standards of protection against discrimination. The purpose of this examination was to systematise existing international standards on equality and non-discrimination in order to map out the scope of international and regional human rights law in this field. This research culminated in the publication of the Non-Discrimination and Equality Standards Compendium in July 2008.

The Compendium has been developed as an information and educational resource to guide lawyers, policy makers and human rights activists working to promote the right to equality and non-discrimination. It provides a detailed (but non-exhaustive) collection of existing international and regional standards on non-discrimination, equality and human rights and categorises these standards into an accessible and user-friendly format.

To see the Non-Discrimination and Equality Standards Compendium, click here.

1.2. Establishing an Advisory Committee for the Declaration of Principles on Equality

In 2007, an Advisory Committee was set up to lead the work on the drafting of the Principles. The Committee included the following members:

• Barbara Cohen, Discrimination Law Consultant, Vice-Chair of the Discrimination Law Association, London;
• Andrea Coomber, Senior Lawyer, Equality, Interights, London;
• Sandra Fredman, Professor in Law and Fellow of Exeter College, Oxford;
• Sir Bob Hepple, Emeritus Professor of Law, Emeritus Master of Clare College, Cambridge, Chair of the Advisory Committee and Chair of ERT’s Board of Trustees;
• Christopher McCrudden, Professor of Human Rights Law and Fellow and Tutor in Law at Lincoln College, Oxford;
• Alice Leonard, Independent Legal Expert, Bath;
• Gay Moon, Special Legal Advisor, Equality and Diversity Forum, London;
• Colm O’Cinneide, Senior Lecturer in Laws, University College, London;
• Michael O’Flaherty, Professor of Applied Human Rights and Co-Director of the Human Rights Law Centre at the University of Nottingham;
• Dimitrina Petrova, Executive Director, ERT, London.

1.3. International Conference on Equality Standards

Following extensive consultations, a draft of the Principles on Equality was prepared for an international conference on equality law organised by ERT, which was held on 3-5 April 2008 in London. The aim of the conference “Principles on Equality and the Development of Legal Standards on Equality” was to help make progress towards two separate though interrelated goals:

(i) finalising the Principles on Equality;
(ii) discussing selected issues to enable further work on legal standards related to equality.

At the conference, 75 participants from 35 countries reviewed the Principles in two plenary sessions and four working groups. The debates provided invaluable comments, suggestions and agreements on the Principles.

Regarding the second goal of the conference, the participants took part in lively debates - in six thematic sessions - on some of the most complex and controversial issues that arise from the attempt to systematise equality standards. The first session discussed concepts of discrimination and equality. Participants were encouraged to draw on their different legal, policy and practical experiences in responding to the question of how the right to non-discrimination relates to the right to equality. The session also considered the grounds on which discrimination must be prohibited: should the right to non-discrimination apply to a closed list of grounds? Are new grounds emerging that should command equal protection? How should multiple discrimination be reflected in the law?

The second thematic discussion concerned positive action and positive duties and explored whether it is possible to formulate universally applicable standards related to positive action and positive duties. This session took account of the existing concepts of affirmative action, positive action, special measures and related notions.

In the third session exploring the nexus between non-discrimination and equality and international law, participants considered how equality and non-discrimination are presented in legal fields other than international human rights law, including humanitarian law, international criminal law, international trade law, law related to development, security and anti-terrorism, environmental law and climate change, and migration law.

The fourth session's theme concerning the balance between non-discrimination and other human rights inspired a discussion on whether it was possible to formulate a principle, a standard or a test determining how to balance competing human rights when one of these is the right to non-discrimination. The participants also examined what other aspects relating to the conflicts of rights would benefit from a general formulation.

The fifth thematic session addressed the question of standards related to enforcement and the role of specialised bodies. The discussion was initiated by four speakers, each from a different jurisdiction, who provided an overview and personal insight into the function and effectiveness of national mechanisms in implementing equality.

Lastly, the discussion on the unified perspective on equality and standard development focused on the practical aspects of advancing the harmonisation and modernisation of legal standards on equality from an integrated perspective. The speakers and interveners discussed opportunities to bridge the gap between the fields of equality and human rights on the one hand, and to overcome fragmentation within the equality and non-discrimination field on the other, with a view to exploring the potential for taking a unified approach to equality.

To read the conference programme click here. 

To view the list of participants click here.

To read the conference report click here. 

1.4. Launch of the Declaration of Principles on Equality

After the conference, ERT continued to facilitate communication with all experts who wished to be involved in the process, sending out new versions of the text for comments. At every stage, all suggestions were carefully considered and incorporated, as appropri¬ate, into updated versions. Maximum efforts were made to achieve consensus on every is¬sue. In cases where full consensus could not be achieved, the ERT Board of Directors took the final decision.

On 21 October 2008, the Declaration of Principles on Equality was launched by ERT at a special event in London. The Declaration comprises 27 principles on six key themes: equality; non-discrimination; scope and rights-holders; obligations; enforcement; prohibitions. It was presented by ERT’s Executive Director Dimitrina Petrova along with a legal commentary and a list of 128 international human rights and equality experts who had signed their names as endorsers.

The Declaration establishes a new paradigm on equality, the most important features of which include:

(i) defining equality as a basic human right, and construing it as autonomous rather than subsidiary to any other right set forth by law, fusing approaches from human rights law and equality law;

(ii) redefining positive action - departing from the concept of formal equality and interpreting positive action (affirmative action) as inherent in substantive equality rather than as an exception or a temporary special measure;

(iii) ensuring consistency in dealing with different types of discrimination, across grounds and areas of activity - facilitating stakeholders in all nations to enshrine the right to equality in a way that eliminates the gaps, inconsistencies and hierarchies of current equality regulations;

(iv) creating a basis, at the level of legal principle, for integrating the two historically segregated notions of equality: identity-based equality (non-discrimination on grounds of sex, race, religion, disability, sexual orientation, etc.) and equality in terms of social class, economic status, or income.

Speaking at the launch ERT’s Chair Sir Bob Hepple reflected on the pressing need for common values on equality:

“There are growing inequalities within and between different nations. This was a serious issue before the current global crisis. It is now one of the most pressing issues we face today.

“Recession and depression can lead to increasing exclusion and, at worst, persecution of the most vulnerable groups within society. That is why the Universal Declaration on Human Rights happened in 1948 and it is why we need to establish universal equality for all human beings today.”

To date the Declaration has been endorsed by a number of organisations and individuals from all parts of the world.

To see the Declaration of Principles on Equality, click here.

To read the legal commentary to the Declaration, click here.

To view the original 128 signatories to the Declaration, click here.

To view all signatories to date, click here.

 

Stage 2: Developing Legal Standards on Equality and Non-discrimination and Strengthening the Right to Equality at the National and International Level

The second stage of this project is an ongoing and open-ended component of ERT’s core work. Using the principles contained in the Declaration, ERT acts to secure progressive and lasting change at the national, regional and international level. The purpose is to have measurable and specific impact on legislation, jurisprudence, and implementation in order to protect, fulfil and ensure the right to equality.

Whilst working to directly target authorities in different countries, ERT’s main strategy is to build local capacity so that disadvantaged groups can participate directly in effecting their own change by advocating legislative and policy reform. This core ERT project works in synergy with other ERT projects, including, for example, “Stateless Persons in Detention”, “Promoting better implementation of equality and non-discrimination law in India”, and “Empowering disadvantaged groups in Kenya through combating discrimination and promoting equality”.

To date, ERT has had significant impact as a result of this effort.

To see a summary of the impact of this core advocacy work, click here.