Addressing the Linkages Between Nondiscrimination and Substantive Rights

Abstract Human rights law ensures both nondiscrimination and substantive rights. These two types of protection are conceptually distinct. But they are often intertwined in practice, because persons with vulnerable identities are especially at risk of being deprived of substantive rights. So how should human rights laws and institutions handle situations at the interplay of nondiscrimination and substantive rights? There is no single answer. Instead, as this article describes, three different methods are employed in practice. In some contexts, human rights actors take a disaggregated approach, looking separately at nondiscrimination and substantive rights. At other times, human rights law itself spells out a specific substantive rule—a specified approach—to protect a particularly vulnerable group, such as requiring paid leave for working mothers after childbirth. Yet a third method is a holistic approach that highlights linkages between substantive rights and nondiscrimination. This article discusses each of these approaches and identifies trade-offs inherent in each approach. It then goes on to show, through a case study of several International Covenant on Civil and Political Rights articles, how all three of these approaches can be found and applied within a single human rights instrument. The article concludes with some suggestions for how to pick between the three approaches in different contexts within and beyond human rights law.