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Principles of equality and non-discrimination in

By Barbara Washington,2014-12-03 14:37
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Principles of equality and non-discrimination in

Principles of equality and non-discrimination in European

    Convention on Human Rights

    ;Zhu Xiaoqing

    Formulated by national and international laws, equality and non-discrimination are two coherent principles which have both their own formal and material aspects. The former means that all individuals should be treated equally according to law; the latter implies that equal distribution of rights and interests in a given society. On both aspects of form and essence, there are some differences between different right takers or right beneficiaries, which is stipulated in national and international laws. Here, instead of difference itself, “degree” to be mastered is the key for distinguishing suitable difference from forbidden discrimination. In light of European Convention on

    Human Rights, a extensive “margin of appreciation” is stipulated for treaty powers to differentiate what is regarded as forbidden discrimination from what is considered

    1acceptable. As length is limited, this paper will make an analysis on principles of equality and non-discrimination from viewpoint of European Convention on Human

    Rights which is observed as guideline of European human rights protection, in stead of detailed content of principles of equality and non-discrimination.

I. European Convention on Human Rights: the first legal document on

    international human rights

    In view of ravage to human lives by the World War II, powerful provisions on human rights protection were included in U.N. Charter in 1945, and some principles on

    human rights protection were then formulated. The preface of U.N. Charter clearly

    “reaffirms basic human rights, dignity and value of personality and equal rights and beliefs of male and female as well as big and countries”. Clause 3 of Article 1 in U.N.

    Charter stipulates that: promote international cooperation to resolve international problems on international economy, society, culture and human welfare, and in despite of nationality, sex, language or religion, build up and encourage respect to mankind’s human rights and basic freedom. Obviously, the stipulations in U.N.

    Charter establish principles of equality and non-discrimination on human rights.

On December 10, 1948, the United Nation Assembly passed and declared Declaration

    on International Human Rights drafted by U.N. commission on human rights. Since

     ; Professor of Institute of Law, CASS. 1 Council of Europe, Short Guide to the European Convention on Human Rights, p. 119.

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then, the Declaration became the first universally accepted international

    documentation on human rights, for the first time roundly and systematically proposing detailed content of human rights and basic freedom in international scope, and clearly stipulating principles of equality and non-discrimination as well as extending their scopes.

Article 1 in Declaration on International Human Rights stipulates that “all men are

    born to freedom and should be equal on dignity and right.” What’s more, civil rights,

    political, economic, social and cultural rights are stipulated in Article 3-28 in the Declaration. “All men” are used as subject for the rights in these articles, exclusive of Article 16 using male and female adults as subject for the rights of enjoying equal rights of getting marriage. Naturally, equality principle is contained in the Declaration.

    Article 2 in the Declaration stipulates non-discrimination principle, that is, “all men is

    qualified to enjoy all rights and freedom described in the declaration, in despite of tribe, complexion, sex, language, religion, politics or nationality, social status and property.” However, as a declaration, Declaration on World Human Rights does not

    have legal power, only playing a role on demonstration and promotion for equality and non-discrimination principle of international human rights documentation.

In light of dissatisfaction with legal weakness of Declaration on International Human

    Rights, European counties urgently required legal documentation to be adopted for effective respect to human rights. In 1949, draft of European Convention on Human

    Rights was shaped, and on August 7, 1950, was authorized by secretary committed of European council. On November 3, 1950, European Convention on Human Rights

    was signed in Rome and took effects on September 3, 1953, which indicating urgent desire of European governments and peoples for a reconstructed European order after World War II. It becomes a world-wide renowned human rights documentation of European council. Reflecting European corporate value and principle, it is regarded as rudiment of European constitution.

European Convention on Human Rights obviously is enlightened and affected by

    Declaration on International Human Rights. The preface of the Convention affirms

    that “with regard to declaration on world human rights declared by U.N convention on December 12, 1948; with regard to the goal of the declaration being guarantee to universal and effective acceptance and observance of declared rights; … all European

    governments with corporate ideology and political tradition, ideal, freedom and heritage determine to take primary measures on jointly implementing the rights

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    2declared in the declaration on world human rights.” The Convention also makes

    stipulation for principles of equality and non-discrimination. The former is embodied in Article 1 of the Convention as “treaty powers should ensure that individual under

    their domination can gain rights and freedom stipulated in Chapter 1 in the convention.” The latter is clearly described in Article 14 of the Convention.

    Description in this article is almost the same as that in Declaration on World Human

    Rights. Therefore, equality and non-discrimination become the basic principles for European Convention on Human Rights.

II. Principles of equality and non-discrimination in European Convention on

    Human Rights

    Some people think that word “principle” is always in plural form for English narration of “principles of equality and non-discrimination”, and therefore, equality and

    non-discrimination are two items of principle. However, though there are slight differences between equality and non-discrimination, they are interrelated. Actually, they are just two aspects of one problem. Their difference lies in that “equality” is a

    kind of active and capable method that stresses on protecting human rights and freedom of all men; whereas, “non-discrimination” means a kind of negative and

    incapable method that requires protection for human rights and freedom of all men.

(I) Equality principle

What is equality? Equality is defined in Encyclopedia on Chinese Human Rights as

    “human requires equal treatment on personality dignity and equal distribution on rights enjoyment. It is moral base of human rights and a basic aspect of detailed

    3content of human rights.” Equality principle is a key principle for human rights. Some Chinese scholars consider that connotation and meaning of equality principle are: (1) as a principle of basic moral value on human rights, it should be instructive for development of human’s granted rights. (2) as a key legislative principle for human rights, it is instructive for development of legal equal rights. (3) as a key principle for protection of human rights, it is instructive for improvement of practice

    4of human rights safeguard (including practice of justice safeguard).

As previous narration, stipulation in Article 1 of European Convention on Human

     2th All quoted convention articles in the paper are from European Convention on Human Rights amended by the 11

    protocol which took effect on November 1, 1998. 3 Wang Jiafu and Liu Hianian, editor in chief: Encyclopedia on Chinese Human Rights, edition 1998 by Chinese

    encyclopedia publisher, P.434. 4 Li Buyun: equality, quoted from Encyclopedia on Chinese Human Rights, P.435.

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    Rights is full embodiment of equality principle, and its stipulation of granted rights and freedom of “all men” is detailed explanation for equality principle. In view of analysis on word “all men” used in the articles, the subject of the rights is undoubtedly “all men”, which implies equality principle.

However, in light of stipulation in European Convention on Human Rights, there is

    only procedural equality stipulated, which is anyhow of active significance. First of all, it reaches premise of material equality, that is, it is indispensable for material equality. Secondly, it provides space for “dynamic” or “evolutive” explanation by European court on human rights in judicial practice according to present-day conditions. At last, the stipulation concerning formal equality is a standard or criterion for treaty powers of the Convention, providing a foundation for treaty powers to

    formulate material equality articles in accordance with their domestic conditions.

    Of course, stipulation of procedural equality has its unavoidable negativity, which lies mainly in its feeble protection for women’s rights on account of its lack of social sex point of view.

(II) Non-discrimination principle

Non-discrimination stipulation of European Convention on Human Rights is in Article

    14, that is:

    In term of the rights and freedom enjoyment described in the convention, all men should ensure non-discrimination on different sex, tribe, complexion, language, religion, politics or nationality or social status, relation with minority, property or other identity.

This article is almost restatement of Article 2 of Declaration on International Human

    Rights. One thing to be noticed is that this article, as the Declaration, uses word

    “other identity”, which means that stipulation of the Convention is not a unlimited list

    and any behavior and standard that press disadvantage status on individual should be regarded as discrimination.

European Convention on Human Rights protects individual rights instead of team

    rights, which is stipulated in Article 14. In practice, it means that the party whose one or several rights are infringed or directly affected can appeal to European court on human rights; anyone that represents claimed infringed party cannot appeal to the court.

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One thing to mention is that European Convention on Human Rights does not

    stipulate universal responsibility of non-discrimination, while protection in Article 14 is supplement or attachment to other material rights in the Convention. This implies

    5that the article has not its independent life. However, European commission on

    human rights and European court of human rights so far have indicated that even if one country is considered to fulfill its obligation of material rights in a special case, it would be regarded as infringing the rights in Article 14. This has been explained in 1968 in Belgium Linguistics Case. In the case, one group of French-speaking parents argued that their kids were not given admittance to the French school in peripheral region of Brussels for their location, compared with those in Fleming-speaking community which is beyond this restriction. In this case, European court of human

    6rights applied special practice and legal method to achieve legality of the goal.

    There was also exception to practice of European commission on human rights, as Article 14 is only supplement or attachment to other material rights in the Convention.

    7In a case that African Asian proceeded against Britain in 1973, these men appealed

    to European commission on human rights for their consideration of their entry denial as tribal discrimination, because these men once impelled by Uganda, Kenya and Tanzania were denied to entry into Britain though they held passports of British Commonwealth of Nations. Therefore, Britain violated Article 14 and Article 3 in the Convention. European commission on human rights pointed openly that tribal discrimination behavior, on some conditions, may violate Article 3, though materiality of discrimination itself had no relation with rejection to any protected rights in the

    8article or Convention.

    What’s more, law can stipulate difference between rights beneficiaries, but the key is to distinguish what is suitable and what is forbidden, which requires the treaty powers of European Convention on Human Rights strictly observe the stipulation of the

    Convention and carefully use “margin of appreciation” when formulating their

    domestic laws.

According to Article 14 in the Convention, some differences are permitted while

    others are not, which has been confirmed by European court on human rights. As those forbidden differences, one’s country should have objective and reasonable

     5 Council of Europe, Short Guide to the European Convention on Human Rights, p. 120. 6 Council of Europe, Short Guide to the European Convention on Human Rights, p. 120.

     7 East African Asians v. the United Kingdom, Comm. Rept. 1973. This case did not come forth. 8 Short Guide to the European Convention on Human Rights, p. 120.

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    warrant for any adopted different treatment. For example, in 1987, court has judged in Inze appealing Australia case concerning property right of natural child that the application of Australian inheritance law has violated stipulation in Article 1 (property right) of No. 1 protocol of the Convention for that it endowed privilege to legitimated

    9child over natural child. As those permitted differences, fox example Rasmussen

    appealing Denmark case in 1984. In this case, one man required a test on his paternity to the child born by his wife. His requirement is denied for overdue time limit. However, the wife could choose to apply for paternity test when the child grew into an adult. European court of human rights considered that this judgment accords with combination of Article 8 (family life) and Article 14, because that Denmark

    10government could testify justice of difference between mother and father.

    From the above narration, we can say that connotation of equality is much more extensive that that of forbidden discrimination. Nevertheless forbidding discrimination aims at material equality.

(III) Active and negative significance of “margin of appreciation”

As the above narration, we have mentioned about the “margin of appreciation” that

    European Convention on Human Rights should give to the treaty powers for their free

    space on their domestic laws formulation. However, this “margin of appreciation” has two aspects, active and negative.

    To be brief, active aspect is that this “margin of appreciation” makes the treaty powers flexible in their legislation and judicature according to their own situations which are different at all. Therefore, this “margin of appreciation” is propitious to effective implementation and full realization of the Convention in different countries.

    While negative aspect is that it may lead to expanded use of the treaty powers, resulting in conflict between domestic legislation and standard in the Convention, and consequent infirmness of the

    effectiveness and failure of the goal.

    However, negative result is not fearful for that international indicting procedure and individual appealing procedure of European Convention on Human Rights will be the

    last shelter for effective and correct implementation of the Convention by European

    court of human rights. From that we can see that negative influence of the “margin of

     9 Short Guide to the European Convention on Human Rights, p. 121. 10 Short Guide to the European Convention on Human Rights, p. 121.

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appreciation” can be put under control.

III. Changes after pass of European Convention on Human Rights

During 50 years since European Convention on Human Rights was passed, great

    changes have been inspiringly taken place as for change of international society, promotion of movements on human rights and feminism and judicial practice under principles of equality and non-discrimination.

(I) Changes form European convention on Human Rights

Principles of equality and non-discrimination stipulated in European Convention on

    Human Rights are formal principles. However, powerful vitality of cases judged by European court of human rights makes the above principles gradually become material ones, which has been proved in the above cases. That is no wonder why European court of human rights and European commission on human rights consider European Convention on Human Rights as “lawmaking instrument” and “living

    instrument”. In many cases, European court of human rights confirms that. For

    11example, in Tyre case in 1978, European court of human rights stress that European

    Convention on Human Rights was a “living instrument proceeding with current

    121314situation”. Afterwards the court in Marchx case, Dudgeon case and Soering

    15case declared that the Convention was “living instrument” and should be explained

    with changed situation. Dynamic explanation for the Convention was much more

    clearly expressed in Loizidou case in 1995. European court of human rights indicated in the case that articles of the Convention should not be followed by statically … but

     11 Tyrer v. the United Kingdom, Judgment of 25 April 1978,Publications ECHR, Series A vol. 26. This case tookplace in Island Man in U.K. Island Man was not part of U.K., but its apanage. Island Man had its own government, legislature, court, administration, finance and legal system. The kingdom government was basically responsible for civil administration in the island. In this case, 15-year-old applicant received punishment of 3 whips. The applicant appealed to the court that this punishment of flesh should be regarded as insulting punishment forbidden according to Article 3 in the convention. Authority of Island Man supported and retained this kind of punishment of flesh, and attempted to make vindication for this punishment in accordance with Article 62 of the convention, that is colony article. European court of human rights made sentence that judicial

    punishment of flesh have made the applicant suffer insulting punishment equal to stipulation in Article 3 of the convention; local requirement should not tamper with application of Article 3 in Island Man, and hereby the punishment on the applicant was a violation to Article 3. Paras. 35 and 39, R. A. Lawson & H.G. Schermers,

    Leading Cases of the European Court of Human Rights, pp. 47-48. 12 Tyre case sentence, para. 31. sees R. A. Lawson & H. G. Schermers, Leading Cases of the European Court of

    Human Rights, p. 47. 13 Marckx v. Belgium, Judgment of 13 June 1979, Publications ECHR, Series A vol. 31. This case concerns to Article 14 and Article 8 of the convention, and Article 1 of No.1 protocol. 14 Dudgeon v. the United Kingdom, Judgment of 22 October 1981, Publications ECHR, Series A vol. 45. This case concerns to Article 8 of the convention. 15 Soering v. the United Kingdom, Judgment of 7 July 1989, Publications ECHR, Series A vol. 161. This case concerns to Article 3 of the convention.

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    16be explained dynamically by the treaty powers.” Dynamic explanation to the

    Convention is universally considered by European court of human rights.

(II) Changes from U.N. convention on human rights

After 16 years since European Convention on Human Rights was passed, the U.N.

    International Convention on Civil Rights and Political Rights took effect. As a much

    more extensive international convention on human rights, International Convention

    on Civil Rights and Political Rights is of universal significance for principles of

    equality and non-discrimination, ensuring that all men can enjoy wide equal rights and freedom.

In 2000, commission on human rights under International Convention on Civil Rights

    and Political Rights made clearly explanation in its No. 28 general comments on equal rights between men and women stipulated in Article 3 of the convention. This regular opinion stressed that Article 3 means that all men should enjoy equal and full rights stipulated in the Convention, which depends on equal treatment and enjoyment

    of everyone. Therefore, all countries should ensure that all equal enjoyment of the stipulated rights (Article 1) to men and women; treaty powers are responsible for the equal rights enjoyment without any discrimination (Article 4). This regular opinion indicates that discrimination on women is always confused with discrimination on basis of tribe, complexion, language, religion, politics or nationality or social status, property or other identity. Treaty powers should give information on discrimination on

    17women on basis of other reasons to effectively elimination this discrimination.

On December 18, 1979, U.N. convention passed Convention on Eliminating

    Discriminations of All Kinds Against Women. This Convention was so urgent in view

    of women’s situation and was due to unceasing efforts of worldwide women’s movement of human rights. The Convention aims to eliminate discrimination on

    women in political, economic, social and cultural fields with a legal documentation. On basis of that, the Convention defines that “discrimination on women” means “any

    differentiation, exclusion or restriction on basis of sex to married or unmarried women in fields of politics, economy, society, culture, citizenship or other aspects of human rights and basic freedom.” (Article 1) The Convention makes all women’s

    rights be legally stipulated in international documentation on human rights. Though

     16 Loizidou案判决;para. 71. See R. A. Lawson & H. G. Schermers, Leading Cases of the European Court of

    Human Rights, p. 597. thth17 No. 28 regular opinion was passed by the 1834 session (68 ) by committee on human rights

    affair on March 29, 2000

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there are some defects in the Convention, it proposes important opinions on that

    women’s rights are human rights, playing an important role in establishment and development of principles of equality and non-discrimination.

(III) Changes from European Union

    It is well known that European Union, the economic organization, is closely related to European council, the political organization. European Convention on Human Rights

    is so far a key basis for cases concerning to human rights cases in European courts. As an economic alliance, human rights initially were not a part of field of European Community. However, with European incorporate development, human rights enter politics of European Community and become more and more important for law of European Community. Take one of the key treaties Amsterdam Treaty (1977) as an

    example. This treaty expands some principles of Treaty of European Community on

    non-discrimination, introducing new treaty on human rights, that is, Article 13 of Treaty on Establishing European Community (original Article 6a). This article clearly

    stipulates that “against any discrimination on basis of sex, tribe, nationality, religion or belief, deformity, age or sex orientation”. Before this article’s introduction into Amsterdam Treaty, there are three meanings in non-discrimination in Treaty of

    European Community: (1) forbidding discrimination on basis of nationality and free migration; (2) equal treatment for male and female in labor market and work, and equal pay for equal work regardless of sex; (3) non-discrimination to producer or consumer in agricultural field. Obviously, new Article 13 expands non-discrimination principle in original treaty of community. In addition, compared with related U.N. convention on human rights and European Convention on Human Rights, Amsterdam

    Treaty has some new points of view to cause of discrimination.

    In one word, compared with the latter passed U.N. convention on human rights, European Convention on Human Rights is a bit of weak in its stipulations. However, the material equality and non-discrimination in the Convention is undoubtedly feasible for that cases of European court on human rights have so far supplemented and improved the Convention. In a developing point of view, we can make a bold assumption to put social sex viewpoint into the Convention through cases of social sex viewpoint under European court of human rights.

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