Monday this week, 8 March, was International Women’s Day, an important date in the human rights calendar. As women’s groups in Aotearoa New Zealand have long been active and well versed in deploying human rights arguments, I am taking this opportunity to write about the idea and importance of ‘equality’ in general and the current unacceptable levels of inequality in New Zealand.
And here, although human rights law and policy has tools to offer, it has also been slow to recognise or seek to remedy the great dangers of an unequal society.
Equality is one of, indeed the, core value underpinning the human rights project. It is there clearly front and centre in the 1948 Universal Declaration of Human Rights (UDHR), both in the Preamble and in Article 1:
All human beings are born free and equal in dignity and rights.
This unequivocal statement is picked up and amplified in the two International Covenants which, when ratified (agreed to) by a state, give legal effect to the Declaration. Thus, the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR) reaffirms this over-arching right to equality, and as its main tool to achieve equality, introduces the idea of non-discrimination, identifying groups which have been disadvantaged.
The State Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status.(Article 2(2))
Over time, other categories have been added, so that, in its 2009 General Comment 20, the Committee (CESCR) which oversees this Covenant, was able to include also reference to disability, age, nationality, marital and family status, place of residence, sexual orientation and gender identity, health status and economic and social situation.
General Comment 20 also addresses such difficult issues as the importance of recognising indirect or systemic discrimination, where for example a rule or procedure often unintentionally results in discrimination against a particular group, and instances of multiple discrimination.
Other detailed international instruments target racial and sex discrimination; others are designed to advance the rights of children, migrant workers, people with disabilities, Indigenous Peoples and, to a lesser extent, refugees and asylum seekers and prisoners. All of these require regular detailed reporting on the progress which a state has made. For example in 2018 New Zealand was required to give account of how it had fulfilled its obligations to its people on delivering economic, social and cultural rights.
New Zealand has ratified all of these instruments, with the exception of the Migrant Workers’ Convention, and has taken a major role in the development of some, notably the Disability Rights Convention. The grounds on, and the areas in, which discrimination is unlawful here are set out in section 21 of the Human Rights Act 1993, which also includes a process for bringing complaints for breach of these rights.
While these procedures have proved successful in individual circumstances, in workplace or tenancy complaints for example, and can lead to systemic change, it cannot be denied that they are generally not enough to address growing inequality in New Zealand society as a whole, an inequality between rich and poor. All the groups mentioned above as requiring extra protection under international human rights law are represented on the wrong side of this divide.
International human rights advocates have long concentrated on lifting the poorest and most marginalised out of disaster, and, until recently, missed the importance of addressing this pernicious division.
But recently there have been suggestions of a return to a more ‘positive’ view of equality, such as appears in the Universal Declaration itself, as compared with, and in addition to, the ‘negative’ approach of non-discrimination: ‘one-to-one equality’, which can be more helpful in addressing unequal treatment in, for example, health or education, especially where there is a ‘two-tier system’ of private and public provision. There have been some suggestions in court proceedings of consideration being given to such an approach here.
And, as we saw last week in our discussion of poverty, the Sustainable Development Goals (SDGs) with their lists of targets, may offer some help: explicitly in Goal 10, “Reduce inequality within and among countries“, and backed up by others which address particular areas, such as health and gender.
It is in concentrating on ensuring the availability of all rights for all to enjoy that the human rights system can perhaps be most useful in addressing the equality gap. In Aotearoa, that entails addressing the housing crisis, reforming the social welfare system, restoring access to and infrastructure to support the health system and to healthy food and drinkable water, reforming the taxation system – in the delivery of Covid vaccines as well!
This requires this government to introduce bold and innovative measures, acknowledging its obligations to protect and secure all these as rights for all its people, particularly those who are disadvantaged.
NOTE: The Human Rights Foundation’s blog presents a human rights perspective on current issues. Through it, we aim to highlight human rights in general, as they provide: (1) a set of agreed international standards, under which governments, including ours, have obligations to their peoples; (2) information on policies and practices which can be useful models for adapting to local conditions.