PROTECTING MINORITY RIGHTS – A Practical Guide to Developing Comprehensive Anti-Discrimination Legislation The material scope of anti-discrimination legislation is determined by its twofold function: first, the right to non-discrimination is applicable in respect of all other human rights;358 second, there is a free-standing right to non-discrimination that applies in relation to all areas of activity regulated by law.359 The reach of anti-discrimination law extends to both the public and private spheres and entails obligations related to the actions of private actors.360 SOUTH AFRICA: PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION ACT Section 5 “(1) This Act binds the State and all persons.” (a) Non-discrimination in the enjoyment of human rights Non-discrimination in the enjoyment of rights is a defining principle of human rights law.361 The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights prohibit discrimination in respect of the civil, cultural, economic, political and social rights set out within the respective Covenants.362 Similar prohibitions are found in many regional human rights instruments.363 Moreover, while the material scope of both the Convention on the Rights of Persons with Disabilities and the Convention on the Elimination of All Forms of Discrimination against Women extends beyond the equal enjoyment of human rights, both also contain an explicit obligation to guarantee the exercise and enjoyment of human rights without discrimination.364 THE EQUAL ENJOYMENT OF RIGHTS UNDER THE INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION In some contrast to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights – which state that all of the rights contained therein should be guaranteed without discrimination – and the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of Persons with Disabilities – which include detailed provisions on State obligations to ensure non-discrimination in areas such as work, education and health care, the International Convention on the Elimination of All Forms of Racial Discrimination includes a single article – article 5 – which contains a list of rights that States should guarantee without discrimination. Article 5 provides that: 48 358 See, for example, International Covenant on Civil and Political Rights, art. 2 (1); and International Covenant on Economic, Social and Cultural Rights, art. 2 (2). See also Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, art. 1 (1); and Convention on the Rights of the Child, art. 2 (1). 359 See, for example, International Covenant on Civil and Political Rights, art. 26; and Human Rights Committee, general comment No. 18 (1989), para. 12. See also Convention on the Rights of Persons with Disabilities, art. 5; and Committee on the Rights of Persons with Disabilities, general comment No. 6 (2018), para. 13. 360 See, for example, Committee on Economic, Social and Cultural Rights, general comment No. 20 (2009), paras. 11 and 37; Human Rights Committee, general comment No. 31 (2004), para. 8; Committee on the Rights of Persons with Disabilities, general comment No. 6 (2018), paras. 13 and 73 (c) and (h); Committee on the Elimination of Racial Discrimination, general recommendation No. 32 (2009), para. 9; and Committee on the Elimination of Discrimination against Women, general recommendation No. 28 (2010), paras. 9–10, 13 and 17. 361 As embodied in the statement that: “All human beings are born free and equal in dignity and rights.” See Universal Declaration of Human Rights, art. 1. See also Committee on Economic, Social and Cultural Rights, general comment No. 20 (2009), para. 2; and Human Rights Committee, general comment No. 18 (1989), para. 1. 362 International Covenant on Civil and Political Rights, art. 2 (1); and International Covenant on Economic, Social and Cultural Rights, art. 2 (2). See also International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, art. 1 (1); and Convention on the Rights of the Child, art. 2 (1). 363 See, for example, European Convention on Human Rights, art. 14; American Convention on Human Rights, art. 1 (1); and African Charter on Human and Peoples’ Rights, art. 2. 364 See, in particular, Convention on the Rights of Persons with Disabilities, arts. 2 and 4 (1); and Convention on the Elimination of All Forms of Discrimination against Women, art. 2.