PART ONE: STATE OBLIGATIONS TO ENACT COMPREHENSIVE ANTI-DISCRIMINATION LAW PART ONE effect.33 Second, States undertake to “amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating” discrimination.34 The obligation to protect is an obligation to protect against discrimination by all other entities, including private actors. It requires the adoption of specific legal and policy measures, including legislation. Article 26 of the International Covenant on Civil and Political Rights contains an explicit obligation to adopt antidiscrimination legislation, requiring that “the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination”. More broadly, under article 2 (2) of the same treaty, States undertake to “take the necessary steps … to adopt such laws or other measures as may be necessary to give effect” to established Covenant rights, including the right to non-discrimination, while article 2 (1) of the International Covenant on Economic, Social and Cultural Rights creates a parallel obligation. Similar obligations are established through article 2 (1) (d) of the International Convention on the Elimination of All Forms of Racial Discrimination, article 2 (a) of the Convention on the Elimination of All Forms of Discrimination against Women and article 4 (1) of the Convention on the Rights of Persons with Disabilities. As discussed further below, interpretations of these, and other, human rights instruments since at least the year 2000 have clarified that the obligation to protect entails the adoption of anti-discrimination legislation that is comprehensive in nature.35 The obligation to fulfil requires States to eliminate discrimination in practice and to ensure the effective enjoyment of the rights to equality and non-discrimination. As the Committee on Economic, Social and Cultural Rights has stated: “In addition to refraining from discriminatory actions, States parties should take concrete, deliberate and targeted measures to ensure that discrimination … is eliminated.”36 That Committee and other treaty bodies have set out a range of measures that States must implement in order to meet their obligations to fulfil the right to non-discrimination, including the development and implementation of policies, plans and strategies; data collection and analysis; public reporting; public education, training and awarenessraising; and the establishment of institutions.37 Notably, this obligation gives rise to an obligation to adopt positive action – also known as affirmative action, or temporary special measures – designed to address historic disadvantage and ensure that everybody can participate on an equal basis.38 International law also imposes obligations on States to achieve equality by challenging prejudice, stereotypes and other drivers of discrimination.39 33 See, for instance, International Convention on the Elimination of All Forms of Racial Discrimination, art. 2 (1); Convention on the Elimination of All Forms of Discrimination against Women, art. 2 (d); and Convention on the Rights of Persons with Disabilities, art. 4 (1) (b). 34 International Convention on the Elimination of All Forms of Racial Discrimination, art. 2 (1) (c). See also International Convention on the Elimination of All Forms of Discrimination against Women, art. 2; Convention on the Rights of Persons with Disabilities, art. 4 (1) (b); and Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, art. 4 (2). 35 See, for instance, Committee on Economic, Social and Cultural Rights, general comment No. 20 (2009), para. 37; Committee on the Rights of Persons with Disabilities, general comment No. 6 (2018), para. 22; CCPR/C/KOR/CO/4, paras. 12–13; CERD/C/KGZ/CO/8-10, para. 11; CEDAW/C/KAZ/CO/5, para. 12 (a); CRC/C/COD/CO/3-5, para. 15; CMW/C/LBY/CO/1, para. 29 (a); Inter-American Convention against All Forms of Discrimination and Intolerance, art. 7; Inter-American Commission on Human Rights, Advances and Challenges towards the Recognition of the Rights of LGBTI Persons in the Americas (OEA/Ser.L/V/II.170, Doc. 184) (2018), para. 94; Parliamentary Assembly of the Council of Europe, resolution 1844 (2011) on the Declaration of Principles on Equality and activities of the Council of Europe; African Commission on Human and Peoples’ Rights, “Concluding observations and recommendations on the 8th to 11th periodic report of the Republic of Kenya” (2016), para. 55. 36 Committee on Economic, Social and Cultural Rights, general comment No. 20 (2009), para. 36. 37 Ibid., paras. 36, 38–39 and 41. 38 See, for instance, Committee on the Elimination of Discrimination against Women, general recommendation No. 28 (2010), para. 9. 39 See, in particular, chapter I of part six of the present guide. 3