The struggle for human rights is largely about preventing discrimination. That is why Protocol No 12 to the European Convention on Human Rights is particularly important. It is intended to strengthen the protection against discrimination. Though it has been in force for a year, the majority of the member states of the Council have not yet ratified this instrument. They should consider doing so.
Discrimination is a major problem, even in some European countries. There are cases of children with disabilities who are not given a real chance of ordinary schooling; of immigrants who are not employed because of their foreign names; of women who receive lower salaries because they are female; of homosexuals who are harassed because of their sexual orientation; of Roma who are not given protection against mob violence; and of Muslims who are not granted permission to build a mosque.
Such tendencies are not in the spirit of human rights. The European Convention states that all its provisions shall be secured
“without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status” (Article 14).
This is important, but the protection against discrimination is limited to those rights covered by the Convention. Therefore Protocol No. 12 has been adopted to secure the equal enjoyment of any right in the law. The text also sets out that no one shall be discriminated against by any public authority.
The Protocol has been in force since April 2005 after 10 member states had filed their ratification. This makes it an important basic standard for the European Court of Human Rights – in relation to those states which have ratified the protocol.
Those that have ratified are Albania, Armenia, Bosnia and Herzegovina, Croatia, Cyprus, Finland, Georgia, Luxembourg, the Netherlands, San Marino, Serbia and Montenegro, “the former Yugoslav Republic of Macedonia” and Ukraine.
However, the majority of the Council of Europe members are still hesitating. This means that the standards on discrimination now differ between European countries.
Some of those who have abstained so far have in fact criticised the wording of the protocol. One point made is that the protocol might be interpreted to prohibit “positive discrimination” – proactive measures with the purpose of supporting a disadvantaged group in order to compensate for previous discrimination.
This dilemma is resolved in the preamble to the protocol where it is reaffirmed that it does not prevent states from
“taking measures in order to promote full and effective equality, provided that there is an objective and reasonable justification for those measures.”
Another argument against ratifying the protocol has been that the scope of its coverage is unclear. It is true that the wording could have been more precise and that the interpretation in some cases may not be fully obvious. However, as the protocol is now in force, the European Court will be able to interpret it in its rulings on individual cases. The precise reach of the protocol will soon be obvious.
I recommend all governments within the Council of Europe who have not ratified to have another look. The protocol is a serious, European attempt to intensify our efforts against systematic discrimination. It deserves support.
Thomas Hammarberg
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