Declaration of Principles on Equality

The Declaration of Principles on Equality reflects a moral and professional consensus among human rights and equality experts.^[1] It contains 27 principles that establish a new paradigm on equality, drawing on established and emerging principles of international law.^[2] It has been described by the High Court of Delhi as reflecting the ‘current international understanding of Principles on Equality.’^[3]

Background

The need to formulate general legal principles on equality was defined on the basis of (i) acknowledging the pervasiveness of discrimination and the weaknesses in the protection of the right to equality at both international and national levels, (ii) the absence of comprehensive equality legislation in many countries around the world and the recognition that such legislation is necessary to give effect to states’ obligations under international and regional human rights law; (iii) the disparities and inconsistencies in approaches to discrimination and equality in the different frameworks of the UN, EU, the Council of Europe, various national jurisdictions, etc. which meant that virtually none of the key concepts of equality law had universally accepted definitions; (iv) the fragmentation of the anti-discrimination struggle, whereby different status/identity groups are enmeshed in identity politics and are unable to follow a universal human rights approach to equality and develop solidarity with other disadvantaged groups.

The Principles on Equality were agreed by a group of experts in several stages of consultations. They were discussed at a conference entitled ‘Principles on Equality and the Development of Legal Standards on Equality’ organised by The Equal Rights Trust (ERT) on 3 - 5 April 2008 in London. Participants of different backgrounds, including academics, legal practitioners and human rights activists from all regions of the world took part in this event. Participants debated a version of the draft that had incorporated their comments on an earlier document. They subsequently contributed comments. A number of further experts participated in various stages of drafting and deliberation.

ERT launched the Declaration of Principles on Equality on 21 October 2008, in London. The document was signed initially by 128 experts from 44 countries, and subsequently by hundreds of others. It establishes, for the first time, general legal principles on equality as a basic human right. The Declaration contains 27 principles on which national equality legislation and policies should be based. The principles formulated and agreed by the experts through a two-year long consultative process are based on concepts and jurisprudence developed in international, regional and national legal contexts. The Declaration is intended to assist efforts of legislators, the judiciary, civil society organisations and anyone else involved in combating discrimination and promoting equality, in particular through developing effective equality legislation and policies.

The legal basis of the 27 Principles is found (i) in the Charter of the United Nations^[4] which recognises the inherent dignity and worth and the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world; (ii) Article 1 of the Universal Declaration of Human Rights^[5] proclaiming that all human beings are born free and equal in dignity and rights; and common Article 2 of the International Covenant on Civil and Political Rights^[6] and the International Covenant on Economic, Social and Cultural Rights^[7]; (iii) the recognition, in Article 26 of the International Covenant on Civil and Political Rights, of the right to non-discrimination as an autonomous human right and the correlative obligation of States to realise this right; (iv) a number of provisions in international and regional treaties; (v) non-binding opinions, recommendations, and interpretations by organs of international and regional organisation including the Council of Europe; (vi) jurisprudence of international, regional and national courts related to equality.

Principles

Marking a transition from identity politics to a unitary human rights framework on equality, the Declaration provides guidance on some of the most complex and controversial issues that arise in any attempt to develop comprehensive equality legislation at the national level. For example, it defines the right to equality, equal treatment, and the right to non-discrimination, and gives a legal definition of discrimination, as well as of the most important types of discrimination (direct, indirect, harassment, discrimination by association and by perception); through these, it provides guidance on the question of how the right to non-discrimination relates to the right to equality. The Declaration also provides general principles on how to approach the question of the grounds on which discrimination must be prohibited: should the right to non-discrimination apply only to a closed list of grounds? Are new grounds emerging that should require equal pro-tection? Is there a hierarchy of the ground of discrimination, and what should be the approach to defining exceptions?

Having taken account of the existing notions of affirmative action, positive action, special measures and positive measures in various legal frameworks, the Declaration further formulates principles on which to base the law on positive action and positive duties. Positive action does not constitute discrimination as long as the difference in treatment is aimed at achieving full and effective equality and the means adopted are proportionate to that aim. Positive ac¬tion measures are not defined as an exception to the principle of equal treatment but as part of its implementation. States have a positive duty to promote equality.

The definition of the right to non-discrimination in Principle 4 as a free-standing right is meant in two senses: (i) in the sense that it is a separate right, which can be violated even if a related right is not: for example, a person’s right to non-discrimination in the enjoyment of the right to education may be violated, while no breach of her right to education has been found; this understanding is well established in the jurisprudence of the European Court of Human rights; (ii) in the sense of an autonomous right, not related to any other right set forth by law. In this second sense, the free-standing status of the right to non-discrimination means that this right does not depend on whether another legal right actually exists. This is the approach followed in defining discrimination in the European Union equality Directives, as well as in the national legislation of a number of the EU member states.

The Declaration further contains principles on equality related to: the relationship between discrimination and violence; the scope of application of the right to equality (“all areas of activity regulated by law”); the personal scope: who are the right-holders, e.g. whether legal persons can claim the right as well as individuals and groups; the definition of duty-bearers; the content of the duty to give effect to the right to equality; the obligations regarding multiple discrimination; the duty of accommodating difference (defining the concept of reasonable accommodation); the relationship between the right to equality and poverty; the specificity of equality legislation; the duty to ensure participation in developing law and policies implementing the right to equality; and the duty to provide education related to equality.

Another set of principles are related to enforcement of the right to equality and define access to justice in equality law; victimisation; standing rules; evidence and proof in adjudicating equality rights; remedies and sanctions; the role of specialised bodies; and the duty to gather and disseminate information including statistics as part of the enforcement of the right to equality. Finally, the Declaration contains principles prohibiting regressive interpretation and derogations from the right to equality.

Limitations

The Declaration of Principles on Equality, as its title indicates, provides only the most general and abstract synthesis of legal standards on equality. Those who would be looking for more detailed guidance on specific issues would be disappointed. But the Declaration’s significance consists in the fact that it documents a degree of moral and professional consensus among global experts at the most fundamental level, reflecting both basic values shared by the signatories and a negotiated agreement on exactly how to express these values in the form and the language of universal legal principles. As an established common ground, the Declaration can therefore serve as the basis for further elaboration of specific legal standards related to equality issues.

See Also

• Bob Hepple

References

1. ^ Petrova, D., ‘The Declaration of Principles on Equality: A Contribution to International Human Rights Law’, Equal Rights Review, Volume 2, December 2008, pp58-72.
2. ^ Declaration of Principles of Equality, Equal Rights Trust, October 2008.
3. ^ Naz Foundation v. Government of NCT of Delhi and Others, WP(C) No.7455/2001 at 93.
4. ^ United Nations Charter, 1 UNTS XVI, entered into force 24 October 1945.
5. ^ Universal Declaration on Human Rights, General Assembly resolution 217 A (III), 10 December 1948.
6. ^ International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, entered into force 23 March 1976
7. ^ International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3, entered into force 3 Jan 1976.

Further Reading

• The Equal Rights Review, Volume 2, December 2008.

External Links

• Declaration on Principles of Equality
• Full list of signatories
• Commentary on the Declaration of the Principles on Equality
• The Equal Rights Trust website