Equality and Non-discrimination
Non-discrimination and equality are core elements of the international human rights normative framework. Article 2 of the Universal Declaration of Human Rights (UDHR) states that every human being is entitled to all rights and freedoms “without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. Similarly, the International Covenant on Civil and Political rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) require the respective States parties to guarantee the enjoyment of all rights without discrimination of any kind. Both also have specific provisions for the “equal right” of men and women in the enjoyment of all rights. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, Articles 11e and 14), the International Convention on All Forms of Racial Discrimination (CERD, Article 5) and the Convention on the Rights of Persons with Disabilities (CRPD, Article 28) likewise enshrine a prohibition of discrimination in the enjoyment of the rights set out in each Convention, including the right to social security. The right to equality and non-discrimination with respect to social protection has been underlined by ILO social security standards. While the focus of older instruments was on migrants and ensuring equality of treatment through the impetus of bilateral agreements (ILO Conventions No. 118 and 157), Recommendation No. 202 (para 3d) highlights the need to streamline the principle of non-discrimination throughout the life cycle, taking account while being responsive to special needs who may experience structural discrimination, when implementing comprehensive social protection systems.
Under international human rights law, States are expected to eliminate direct and indirect discrimination in law and practice; on the grounds of race, colour, sex, age, language, religion, political or other opinion, national or social origin, property, birth, physical or mental disability, health status (including HIV/AIDS), sexual orientation, and civil, political, social or other status; when it has the intention or effect of nullifying or impairing the equal enjoyment or exercise of the right to social security. It also requires states to take special measures to protect the most vulnerable segments of the population as a matter of priority (Committee on Economic, Social and Cultural Rights, General Comment 19, paras 29-30). States parties have the obligation to pay special attention to those individuals and groups who traditionally face difficulties in exercising this right (General Comment 19, para 31) throughout the processes of design, implementation and evaluation. The principles of equality and non-discrimination must be respected in all stages of a social protection programme, from the selection of the beneficiaries to the delivery system chosen. Giving priority to the most disadvantaged sector of society makes it critical to gather disaggregated data to be able to identify them.
Selection of beneficiaries
As stated previously (see universality of protection), States must ensure the right to social security, including social insurance, for all without discrimination of any kind. Article 2.1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and Article 26 of the Convention on the Rights of the Child (CRC) oblige States Parties to take effective measures, within their maximum available resources, to fully realize this right. From a human rights perspective, social protection programmes should also be child-sensitive in their design, implementation and evaluation. The CRC (the Preamble, Articles 2 and 23 in particular) emphasizes that the best interests of children should be respected at all times, and their special needs should be accommodated. A child-sensitive social protection programme is one which ensures the rights of the child, and takes into account all the factors that might place children in a vulnerable position (see also the joint publication Advancing Child-Sensitive Social Protection). Programmes are required to factor in age- and gender-specific risks and vulnerabilities at each stage of the life course, especially considering the needs of families with children. Special provisions should be made for children without parental care and those who are marginalized within their families due to gender, disability, ethnicity, HIV/AIDS status or other markers of identity. To achieve these ends, it is necessary that intra-household dynamics be carefully considered, including the balance of power between men and women. A child-sensitive programme must also include the voices and opinions of children and youth, and their caregivers in design and implementation processes.
Persons with disabilities face various impediments to the enjoyment of their human rights, and thus social protection programmes must employ the utmost sensitivity with regard to their needs. Programmes must ensure their effective coverage and access to social protection benefits, support services as well as to information related to assistive technology and other facilities. This requirement is laid down in the CRPD (Article 4). Article 3 states that social protection programmes must incorporate the chief principles of the CRPD:
- respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;
- full and effective participation and inclusion in society;
- respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;
- equality of opportunity;
- accessibility; and
- equality between men and women.
The CRPD also stresses that the special needs of women and children with disabilities must be duly taken into account (Articles 3, 6 and 7).
Various other characteristics, such as ethnicity, health status, sexual orientation or geographical location can also impede the equal enjoyment by some people of their economic, social and cultural rights, including their right to social security. Each of these characteristics must be taken into account when a social protection programme is designed and implemented. Inclusion of those who are disadvantaged and marginalized is the first step but it is not enough. The provision of quality social services needed by different groups is equally important. For example, building maternal health clinics in rural areas does not necessarily meet the state’s obligations if the services provided in those clinics are worse than in clinics elsewhere in the country or if they do not meet standards set in similar contexts.
Social protection programmes must work towards substantive equality, a concept which has been promoted in key human rights treaties to illustrate and address the fact that inequality can be structural and discrimination indirect, that equality has to be understood in relation to outcomes as well as opportunities, and that universal protection does not necessarily mean uniform measures. ‘Different’ treatment may be required to achieve equality in practice (UN Women’s Progress of the World’s Women, 2015-2016).
Substantive equality differs from formal equality in that the latter refers to the adoption of laws and policies that treat everyone equally, while substantive equality is concerned with the results and outcomes of these laws, policies and practices, in particular ensuring that they do not maintain, but rather alleviate, the inherent disadvantage that particular groups experience.
Policy makers must take into consideration the needs of different groups, and works towards rectifying the effects of past discrimination, social norms and power dynamics that contribute to inequality.
All social security policies and programmes must respect, protect and fulfil the rights of marginalized and disadvantages groups, ensuring non-discrimination and equality.