International Human Rights Law and National Equality Legislation: Mapping the Gaps

Natasha Holcroft-Emmess 11th February 2013

On Wednesday 6th of February, the Oxford Human Rights Hub welcomed Dr. Dimitrina Petrova, founding Executive Director of The Equal Rights Trust, who delivered an engaging presentation highlighting the development of major global trends in equality laws.

Dr. Petrova noted the contemporary interest in attempting to measure the ‘human rights record’ of States. In her presentation, Dr. Petrova aimed similarly to categorise States from the point of view of their national equality legislation, in order to assess to what extent there is measurable progress in enacting legal frameworks which advance the cause of equality, and how far States have yet to go in order to achieve comprehensive equality laws.

Dr. Petrova stressed that an understanding of the historical development of equality law, and how this evolved independently of the human rights movement, is crucial to appreciating the different trends in legal development. Dr. Petrova analysed the development of equality law thus: the first generation established formal equality in the Aristotelian sense of treating likes alike; second generation developments promoted equality of opportunity (the removal of barriers to equality); the third generation advances the goal of comprehensive substantive equality; and finally, the fourth generation cultivates transformative equality, in the sense of equality of capability and participation, made possible through the recognition of positive duties. It is towards this latter development that Dr. Petrova suggested many jurisdictions are hopefully advancing.

To support this inference, Dr. Petrova indicated several major global trends in equality law: there have been movements away from individualistic anti-discrimination laws to increasingly collectivistic and proactive equality laws; from a patchwork of norms to a unitary framework; and towards a synthesis of equality with human rights law. Thus it is possible to observe greater modern convergence of human rights discourse and equality laws. For example, ever-increasing numbers of authorities in the field of international human rights law are using concepts of direct and indirect discrimination in the same manner as does equality law. These developments go some way towards closing the gaps between ideas of equality and human rights.

The aspiration, Dr. Petrova argued, ought to be to establish a unitary human rights framework in equality. This would resolve tensions and inconsistencies between international human rights law approaches and equality approaches to non-discrimination. One initiative which embodies this goal is the Declaration of Principles on Equality 2008. This document, facilitated by the Equal Rights Trust and endorsed by a multitude of human rights advocates and experts, elaborates principles through which to establish a unified legal framework on equality. The principles have since been afforded the status of soft law by the Council of Europe. The UK would also come closer to making such a framework a legal reality, were the provisions

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of the Equality Act 2010 fully enforced.

The next step for equality law is bridging the gap between legal approaches which aim to reduce status inequalities on the one hand, and socio-economic disadvantages on the other. Dr. Petrovna’s presentation provided an invaluable insight into recent trends in national equality laws, their relationship with international human rights norms, and the challenges to cohesive development which lie ahead.

Natasha Holcroft-Emmess is a BCL Candidate at the University of Oxford and a frequent contributor to the OxHRH Blog.

A copy of the slides from Dr Petrova’s presentation can be found here.

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