Equality and Affirmative Action in International Human Rights Law and its Relevance to the European Union

Abstract

Human rights norms have played an increasingly important role in recent equality cases before the European Court of Justice, including the Marschall case on positive action. This paper aims to contribute to the positive action debate in Community law by exploring the meaning of the equality principle in human rights law and outlining the potential relevance of the human rights approach to affirmative action for the development of the equality principle in Community law. The paper suggests that the equality principle in human rights law, not only permits, but arguably may, in certain circumstances, require states to adopt affirmative action in fulfilment of their obligations to respect the equality principle. Human rights law thus represents a valuable resource upon which the Court could draw in developing the equality principle in Community law. Should the Court have regard to human rights law in framing the future scope of the equality principle in Community law this may result in a bolder approach to positive action in Community law than hitherto adopted by the Court. The paper, however, also recognises the limits of human rights law and concludes with an assessment of those steps which the international community may need to take if the Court is to be expected to draw upon human rights norms in informing its interpretation of Community equality law.