Professional Documents
Culture Documents
Cedo ... 14 Plus Protocol
Cedo ... 14 Plus Protocol
Cedo ... 14 Plus Protocol
Zhu Xiaoqing
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
mankinds 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
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,
1
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. Whats 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.
2
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.
Of course, stipulation of procedural equality has its unavoidable negativity, which lies
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.
3
mainly in its feeble protection for womens rights on account of its lack of social sex
point of view.
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.
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
that the article has not its independent life. 5 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
rights applied special practice and legal method to achieve legality of the goal.6
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.
4
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 article or Convention.8
Whats 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.
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.
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
8
Short Guide to the European Convention on Human Rights, p. 120.
9
Short Guide to the European Convention on Human Rights, p. 121.
10
Short Guide to the European Convention on Human Rights, p. 121.
5
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
appreciation can be put under control.
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.
6
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 be
explained dynamically by the treaty powers.16 Dynamic explanation to the
Convention is universally considered by European court of 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.
7
development of principles of equality and non-discrimination.
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 articles 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.