The relationship between Affirmative Action and Equality in the International Human Rights system: A compatibility test

Abstract: Affirmative action, a notion characterized by both potential as well as predicament, is one of the most controversial concepts of equality law. This thesis examines the legal standpoint of affirmative action, its nature as well as its requirements and limitations within the international human rights sphere. The analysis reveals affirmative action as a variable obligation of States to combat discrimination and achieve substantive equality. The paper also presents different aspects of affirmative action in relation to the CEDAW, CRPD, CERD, ICCPR and ICESCR and shows that not all disadvantaged groups can benefit from the same prototype of special State measures. Finally, the thesis explores the relationship between various standards of equality and affirmative action. By using the views of Dworkin and Rawls on equality as input, the paper suggests that international human rights law has yet to contour the legal details that would make affirmative action a legitimate tool for achieving real and sustainable equality, as opposed to a formal equality that disregards the socio-structural and behavioral characteristics of each individual.