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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

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