Substantive equality: A conceptual framework

Abstract

The principle of equality in international human rights instruments is expressed in very general and open-textured terms. Thus, Article 2 of the Universal Declaration of Human Rights (UDHR) provides that every human being is entitled to all the rights and freedoms within the Declaration ‘without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’ (UN General Assembly 1948). Similarly the International Covenant on Civil and Political Rights (ICCPR) requires States to respect and ensure the rights in the Covenant ‘without distinction’ (UN General Assembly 1966a, article 2), while the International Covenant on Economic Social and Cultural Rights (ICESCR) requires State parties to guarantee that the rights enunciated in the Covenant will be exercised without discrimination of any kind on the grounds mentioned in the UDHR (UN General Assembly 1966b, article 2(2)). Both the ICCPR (article 3) and ICESCR (article 3) have specific provisions for the ‘equal right’ of women and men to the enjoyment of all rights in the respective Covenants. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) focuses specifically on women, stating that ‘discrimination against women’ shall mean ‘any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field’ (UN General Assembly 1979, article 1).