3.7.1 Protecting Specific Groups: An equality-focused approach
This section will look specifically at NHRIs’ obligations with regard to equality-based approaches as a strategy to advance the work of NHRIs in protecting and promoting the rights of specific groups.
NHRIs may address thematic issues related to particular categories of vulnerable persons, which may involve issues where the rights at stake are highly contested:
- Indigenous peoples
- Lesbian, gay, bisexual and transgendered persons
- Migrant workers
- Persons with disabilities19
- Persons with HIV/AIDs
- National or ethnic, religious or linguistic minorities
- Refugees and internally displaced persons
- Women20
The protection of these and other groups depends in part on substantive equality. Formal equality, sometimes called de jure equality, means that all people are treated the same way, say, men and women; or that persons with disabilities should be treated the same as other people, and so on. For example, a rule may allow an employer to hire someone new if the job-holder leaves her job for some time due to pregnancy: this is “formally equal” because it treats everyone the same way. But, it would clearly discriminate against women if it failed to provide maternity protection and return-to-work guarantees. Formal equality will rarely be enough to ensure equal rights – to do this, more is needed: substantive equality.
Substantive equality is concerned with the effects of laws, policies and practices. In practical terms, this means that just being neutral is not enough. For example, States parties should take into account existing economic, social and cultural inequalities experienced by specific groups. Gender-neutral laws and policies can perpetuate sex inequality because they do not “take into account the economic and social disadvantage of women; they may therefore simply maintain the status quo. [Formal equality] does not, by itself, provide [real] equality. […]”. Whether the measures taken to protect rights are adequate must always be assessed against the background of women’s actual conditions, and evaluated in the light of the effects of policies, laws and practices on those conditions.”21
This section looks in more detail at how equality can be used as an approach for NHRIs to fulfil responsibilities for three specific groups: (1) women, (2) persons with disabilities, and (3) internally displaced persons and refugees. This selection does not represent all specific groups, nor does it suggest these groups’ experiences of discrimination are identical or transferable: it does however illustrate basic concerns and approaches that NHRIs may use to assist these groups in their efforts to ensure that the rights of these groups are respected. It should also be noted that there are many individuals at the intersections of these three groups whose experiences are unique, and that the impact of compounded negative effects of discrimination cannot be overlooked.
3.7.1.1 Women’s Human Rights
There is a substantial and growing body of State obligations, laws and norms related to the equality rights of women and girl children.22 Although the main legal sources of these rights are the ICESCR, and CEDAW, there are other instruments, including the ICCPR, which contains a basic equality guarantee in Article 26 which states that “all persons are equal before the law and entitled without any discrimination to the equal protection of law”, the Convention on the Rights of the Child (CRC) and a number of labour instruments from the International Labour Organization which contain rights affecting women and girl children.
CEDAW’s article I states that the term “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.
In 2002, the Montreal Principles on Women’s Economic, Social and Cultural Rights (“Montreal Principles”) stressed the responsibility of NHRIs to support strategies, plans and policies specifically designed to guarantee women’s human rights.23 In 2005, the Office of the UN High Commissioner for Human Rights affirmed the importance of NHRIs, in cooperation with other human rights mechanisms, in the protection and promotion of the human rights of women.24 For NHRIs, women’s human rights engage not only legal standards but also monitoring the effect given to legal provisions, which provide indicators of progress. The Millennium Development Goals, for example, are important tools in creating the links between women’s ESC rights and measures of progress towards equality through human development and good governance.
A discussion of the links between human rights and development is found in Chapter 5.
3.7.1.2 NHRIs and Rights of Persons with Disabilities
Similarly, there are various state obligations, laws, and norms that address the rights of persons with disabilities.
According to the UN Convention of the Rights of Persons with Disabilities, “discrimination on the basis of disability” means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural and civil domain, or any other field.
3.7.1.3 IDPs, Refugees, Stateless Persons and Migrants
Many NHRIs have the role and responsibility to ensure that these persons receive human rights protections just as other persons under the jurisdiction of the State. This can often be especially challenging since many countries significantly proscribe the rights of migrants and refugees, and even of internal migrants.
19 Convention on the Rights of Persons with Disabilities. For a discussion of the role played by NHRIs in this convention, see Stein and Lord, “The United Nations Convention on The Rights Of Persons With Disabilities as a Vehicle for Social Transformation”.
20 CEDAW. See General Recommendation No. 6 (seventh session, 1988).
21 Adapted from para. 9 of the Montreal Principles.
22 See generally, UN Division for the Advancement of Women, “Promoting women’s enjoyment of their economic and social rights”, Report of the Expert Group Meeting, Abo/Turku, Finland, 1-4 December 1997, UN Doc. EGM/WESR/1997/Report, para. 18; S. Day and G. Brodsky, ‘Beyond the Social and Economic Rights Debate: Substantive Equality Speaks to Poverty’ Canadian Journal of Women and the Law, Vol. 14, No. 1 (2002), pp185-220; L. Farha, ‘Is There a Woman in the House? Re/conceiving the Human Right to Housing’, Canadian Journal of Women and the Law, Vol. 14, No. 1 (2002), pp. 118 - 136; K. Frostell and M. Scheinin, ‘Women’ in A. Eide, C. Krause, A. Rosas (eds.), Economic, social and cultural rights: a textbook, (Dordrecht: Martinus Nijhoff, 2001).