principles and policies for pursuing equility
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Answer:
The Principles on Equality are based on legal concepts that have evolved in inter-
national, regional and national human rights or equality jurisprudence. Although
many of the terms employed in the Declaration are sufficiently well established, the
resulting conception of equality in its entirety opens a new space for standard de-
velopment in the international human rights system. The purpose of this note is not
to detail the linkages between the Principles and existing jurisprudence. Instead, it
provides background and draws attention to some of the strengths of the Declara-
tion which would allow it to be described as a step forward in promoting equality
and human rights.
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prncipals-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.
policies-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.