CRPD/C/GC/6
10.
Equalization of opportunities, as a general principle of the Convention under article
3, marks a significant development from a formal model of equality to a substantive model
of equality. Formal equality seeks to combat direct discrimination by treating persons in a
similar situation similarly. It may help to combat negative stereotyping and prejudices, but
it cannot offer solutions for the “dilemma of difference”, as it does not consider and
embrace differences among human beings. Substantive equality, by contrast, also seeks to
address structural and indirect discrimination and takes into account power relations. It
acknowledges that the “dilemma of difference” entails both ignoring and acknowledging
differences among human beings in order to achieve equality.
11.
Inclusive equality is a new model of equality developed throughout the Convention.
It embraces a substantive model of equality and extends and elaborates on the content of
equality in: (a) a fair redistributive dimension to address socioeconomic disadvantages; (b)
a recognition dimension to combat stigma, stereotyping, prejudice and violence and to
recognize the dignity of human beings and their intersectionality; (c) a participative
dimension to reaffirm the social nature of people as members of social groups and the full
recognition of humanity through inclusion in society; and (d) an accommodating dimension
to make space for difference as a matter of human dignity. The Convention is based on
inclusive equality.
IV. Legal character of non-discrimination and equality
12.
Equality and non-discrimination are principles and rights. The Convention refers to
them in article 3 as principles and in article 5 as rights. They are also an interpretative tool
for all the other principles and rights enshrined in the Convention. The principles/rights of
equality and non-discrimination are a cornerstone of the international protection guaranteed
by the Convention. Promoting equality and tackling discrimination are cross-cutting
obligations of immediate realization. They are not subject to progressive realization.
13.
Article 5 of the Convention, like article 26 of the International Covenant on Civil
and Political Rights, provides in itself an autonomous right independent from other
provisions. It prohibits de jure or de facto discrimination in any field regulated and
protected by public authority. Read together with article 4 (1) (e), it is also evident that it
extends to the private sector.
V. Normative content
A.
Article 5 (1) on being equal before and under the law
14.
Several international human rights treaties include the term “equal before the law”,
which describes the entitlement of persons to equal treatment by and in the application of
the law, as a field. In order that this right may be fully realized, the judiciary and law
enforcement officers must not, in the administration of justice, discriminate against persons
with disabilities. “Equality under the law” is unique to the Convention. It refers to the
possibility to engage in legal relationships. While equality before the law refers to the right
to be protected by the law, equality under the law refers to the right to use the law for
personal benefit. Persons with disabilities have the right to be effectively protected and to
positively engage. The law itself shall guarantee the substantive equality of all those within
a given jurisdiction. Thus, the recognition that all persons with disabilities are equal under
the law means that there should be no laws that allow for specific denial, restriction or
limitation of the rights of persons with disabilities, and that disability should be
mainstreamed in all legislation and policies.
15.
This interpretation of the terms “being equal before the law” and “being equal under
the law” is in line with articles 4 (1) (b) and (c) of the Convention, according to which
States parties must ensure that public authorities and institutions act in conformity with the
Convention; that existing laws, regulations, customs and practices that constitute
discrimination against persons with disabilities are modified or abolished; and that the
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