the opening words of the preamble of the Covenant affirm the rights of equality. By Article 2 (1) a State undertakes to respect and ensure the rights recognised by the Covenant: To all individuals within its territory and subject to its jurisdiction … without distinction of any kind such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. [emphasis added] This right to equality is repeated in all other international human rights instruments, the European Convention, Article 14, the African Charter, Articles 2 and 3, the Cairo Declaration on Human Rights in Islam Article 1, American Declaration of the Rights and Duties of Man, Article 2, to name a few. THE NATURE OF THE RIGHT TO EQUALITY AND NON-DISCRIMINATION The right to equality has spawned an extensive and complex jurisprudence, for the right is by no means self-explanatory. Non-discrimination and equality are not synonymous or tautological. Non-discrimination should instead be regarded as the means to an end, and the end is that of equality. Furthermore, equality does not imply identity. Indeed, it suggests the opposite. If all individuals shared identical personal characteristics, there would be no need for a right to equal protection of the law, for any difference in treatment could not, under such a scenario, be ascribed to discrimination on the basis of a personal characteristic. This may seem obvious. Yet States often seek to justify the violations of the right to equality precisely on this ground that the individuals discriminated against “are different”. I shall return to this point later. Equality then has to do with non-discrimination on the basis of personal characteristics, whether that characteristic be a natural attribute (such as race or gender); nurture (such as language); or chosen (such as religion). Equality does not require a blanket prohibition on discrimination. If a clearly identifiable group has historically been subjected to a diminished allocation of state resources on the basis of race, for example, the principle of equality might require positive discrimination, in the form, say, of an affirmative action programme in order to promote equality. Discrimination may be required to ensure equality in either areas as well. Principles of equality are not satisfied if a law equally prohibits maternity leave to parents regardless of gender. Equality of opportunity in the work place requires discrimination to redress an imbalance in the duties of infant care placed on women. In short, discrimination exists in the unequal treatment of equals and the equal treatment of unequals. Discrimination is also inevitable and desirable in some cases. If the State wishes to select the best employees for a limited number of posts in a State enterprise, it may design a test to determine who will perform best in those posts and may then discriminate against those who perform badly. Equality then does not prohibit discrimination. It prohibits “unfair” or “invidious” discrimination. The question, which then arises, is what constitutes unfair or invidious discrimination? At the core of this question is the determination of whether the discrimination serves a legitimate purpose, and is no broader in application than is required to serve that purpose. In the words of the European Court of Human Rights: The principle of equality is violated if the distinction has no objective and reasonable justification. The existence of such a justification must be assessed in relation to the aim and effects of the measure under consideration, regard being had to the principles which normally prevail in democratic societies. A difference of treatment in the exercise of a right laid down in the Convention must not only pursue a legitimate aim: Article 14 is likewise violated when it is clearly established that there