PART ONE: STATE OBLIGATIONS TO ENACT COMPREHENSIVE ANTI-DISCRIMINATION LAW The rights to equality and non-discrimination are fundamental components of international human rights law. PART ONE As understanding of these rights has developed through the work of the United Nations human rights treaty bodies, it has been recognized that effective protection from discrimination requires the adoption of comprehensive anti-discrimination legislation. At the turn of the millennium, only a handful of States around the world had adopted such legislation. The past two decades has witnessed significant progress in this regard, as an increasing number of States – from different regions of the world, and from different legal traditions – have recognized the benefits of a holistic and comprehensive approach to tackling inequality and have sought to give effect to their international law obligations. In the present chapter, the drafters chart this development. I. CONSENSUS ON THE NEED TO ADOPT COMPREHENSIVE ANTI-DISCRIMINATION LAW A. The international human rights law framework The right to non-discrimination – together with equality before the law and equal protection of the law – is “a basic and general principle relating to the protection of human rights”18 and a “fundamental component” of international human rights law that gives rise to “immediate and cross-cutting” obligations.19 The right has a dual status: individuals have both a right to be free from discrimination in the enjoyment of all other human rights and a “free-standing” right to non-discrimination in areas that are regulated by law but not the subject of another human right. States parties to both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights have accepted obligations to respect and ensure the civil, political, economic, social and cultural rights provided in those treaties without discrimination.20 These provisions are supplemented by article 3 of each Covenant, which guarantees the equal enjoyment of rights by men and women. In addition to these guarantees, article 16 of the International Covenant on Civil and Political Rights provides that: “Everyone shall have the right to recognition everywhere as a person before the law.” Article 26 of that Covenant further provides that: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.” The Human Rights Committee has clarified that this article provides an “autonomous right” that “prohibits discrimination in law or in fact in any field regulated and protected by public authorities”.21 In addition to the Covenants, specific instruments have been adopted with the aim of eliminating discrimination on particular grounds. The International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of Persons with Disabilities all have the elimination of discrimination at their core. Each of these instruments defines discrimination, sets out legislative, policy and practical obligations on the State for the implementation of the right to non-discrimination and delineates obligations of non-discrimination in different areas of life. The International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of Persons with Disabilities are based on the premise of equality before the law and equal protection of the law and each recognizes these as specific rights.22 Indeed, each of these Conventions can be seen as elaborating the meaning of the specific legal requirements to ensure equal recognition and protection for the persons and groups in 18 Human Rights Committee, general comment No. 18 (1989), para. 1. 19 See, in particular, Committee on Economic, Social and Cultural Rights, general comment No. 20 (2009), paras. 2 and 7. 20 International Covenant on Civil and Political Rights, art. 2 (1); and International Covenant on Economic, Social and Cultural Rights, art. 2 (2). 21 Human Rights Committee, general comment No. 18 (1989), para. 12. 22 International Convention on the Elimination of All Forms of Racial Discrimination, art. 5; Convention on the Elimination of All Forms of Discrimination against Women, art. 15; and Convention on the Rights of Persons with Disabilities, art. 12. 1