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
acceptable.1 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
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,

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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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.

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
declared in the declaration on world human rights. 2 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.
2
All quoted convention articles in the paper are from European Convention on Human Rights amended by the 11th
protocol which took effect on November 1, 1998.

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.

(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
content of human rights.3 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 humans 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
of human rights safeguard (including practice of justice safeguard).4

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

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
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.

(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.

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

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. In a case that African Asian proceeded against Britain in 1973, 7 these
men appealed to European commission on human rights for their consideration of

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.

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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.

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, ones country should have objective and reasonable
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
child over natural child.9 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
government could testify justice of difference between mother and father.10

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
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.

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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.

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
example, in Tyre case11 in 1978, European court of human rights stress that European
Convention on Human Rights was a living instrument proceeding with current
situation.12 Afterwards the court in Marchx case13, Dudgeon case14 and Soering case15
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

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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.

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

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 womens situation and was due to unceasing efforts of worldwide womens
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 womens
rights be legally stipulated in international documentation on human rights. Though
there are some defects in the Convention, it proposes important opinions on that
womens rights are human rights, playing an important role in establishment and
concerns to Article 3 of the convention.
16
Loizidou para. 71. See R. A. Lawson & H. G. Schermers, Leading Cases of the European Court of
Human Rights, p. 597.
17
No. 28 regular opinion was passed by the 1834th session (68th ) by committee on human
rights affair on March 29, 2000

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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 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.