Discrimination

The European Convention on Human rights is a treaty that was created to protect human rights and fundamental freedoms. The treaty was created by the Council of Europe in hopes that atrocities that affect human lives are prevented and protected under the law. This is due to Post World War II events where the European states had to suffer unrest due to economic and social reasons. As such the European convention was created in order to prevent similar instances of these events through the protection of the social and individual rights of individuals.

The convention is separated into three main sections. The first section is the declaration of the rights and freedoms that member states will be upholding. Section two creates a system for its implementation and section three primarily discusses prescribed ways in order to develop, maintain and further human rights. This paper focuses on issues of discrimination that is affected by the convention..

Discrimination in general means the unfair treatment based on prejudice or preconceived ideas without the knowledge or examination. After the world war, Europe was divided and discrimination was rampant. Conflicts arose among the population since they discriminated against each other creating a chaotic environment that has been seen to be detrimental to the state. Discrimination of all kinds are prohibited under the convention since it causes various problems if practiced by government units.

Discrimination according to the ECHR

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social in origin, association with a national minority, property, birth or other status.”

Here we see that the analysis of the above provision that it generally prohibits discrimination of any kind based on their sex, race,  colour, language, religion , political or other opinions, national or social origins, association with a national minority, property, birth or other status. It essentially means that you will not be discriminated upon because of your person.

No matter if an individual is male or female, whatever nationality or ethno linguistic group individual appears to be, no matter the colour of the skin, whatever language used, whatever religious affiliations or beliefs, no matter what an individual’s views and beliefs in life are, no matter what their social standing may be, no matter the circumstances of their birth or any other status that pertains to the personal identity of the person they are insured of being protected by the convention. This means that one will be treated based on what they are (citizens of the world) what they have done and not based on who they appear to be or based on biases of preconceptions. (Davis)

The above line is Article 14 of the European Convention of Human Rights. It explicitly prohibits the instances of discrimination of any kind. It is mainly flawed because it does not assert that the right to the protection against discrimination in a general scope. It only insures the protection from discrimination with regards to other rights included in the convention. It does not insure universal protection against the discrimination only but only for those rights provided in the ECHR. If the discrimination does not affect any of the ECHR rights, then the protection of discrimination does not take effect, no matter how bad the discrimination may be.

The ECHR, recognizing the weakness of this provision, ratified Protocol No. 12 which extends the scope of Article 14. Protocol no. 12 states that:

(1)    “The enjoyment of any right set forth by the law 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 status.

(2)    No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1

Protocol 12 is a freestanding provision to protect individuals from discrimination –

· In enjoying any right within national law

· By public authorities carrying out their legal obligations, including when using discretionary powers such as grant making.

· Any other act, or failure to act, by a public authority.”

Protocol no. 12 was ratified to be part of the ECHR after the Council of Europe’s 10 member states have ratified it in order for it to take effect. However it seems as though the UK government is not too keen about this protocol as they have yet to ratify the protocol. The UK government had already shown support for Protocol 12 but says that is not yet the time for it. On the other hand, UK has already passed the Human Rights Act of 1998 that also extends the scope of the provisions of the ECHR, though only making it more available to the people within their state. They are still, however, still limited by the same limitations as the ECHR.

Discrimination in the ECHR also has elements to be considered. First is that another particular right ensured in the ECHR must first be breached and the second is that there must be no “objective and reasonable justification” or that there is no “reasonable relationship of proportionality between the means employed and the aim sought to be realized”. This means that the protection against discrimination must be raised only if one of the rights ensured in the ECHR is breached or violated. The claimant must then first prove that there is a breach upon at least one of the rights in the ECHR. The other element is that the claimant must also prove they have been given separate treatment than what would those who have experienced the same situation. The alleged discriminatory act must also not have any reason(s) for a person to be discriminated against in order for the case to be recognized by the courts. (Human Rights Case Digest)

Territorial Application of ECHR (Article 56)

The most important part to remember with regards to the Territorial Application of all ECHR provisions is that it should be ratified by the by the member states that wish for it to be applied. This means that they first need to accept the provisions of the ECHR before they are to implement it. Another is that ratification of the ECHR is also subject to the rules, regulations and policies of the local states where it has been ratified.

This essentially means that the respective states have the authority to apply discretionary powers of their governments with regard to their own laws and regulations. Territorial Application also requires that the states who have ratified this convention must recognize the capabilities and the competence of the body created to manage and hear issues regarding the provisions of ECHR. The provisions are also affects not only the nation state that ratified it but also with regards to other states with which they have diplomatic relations with.

UK on the other hand, created a law that incorporated the ECHR into their national laws. This is the Human rights act of 1998. This law also gave the UK local courts the authority to hear human rights cases within their territories and decide on these cases basing it on the jurisprudence of the European Court of Human Rights. (Davis)

UK, and all the other members of the Council of Europe, was given the authority not to adhere to certain provisions of the ECHR. This is under article 57 of the ECHR entitled “Reservations”. The Article 57 is a provision of the ECHR that gives the states whose laws and local regulations are in conflict with one of the provisions of ECHR are allowed to maintain their laws but under the notion that not the general ideas and principles of the Convention. This gave the UK the power not to accept protocol 12 where they have justified their reasons for not doing so. This is a power that was given to all member states. (Davis)

UK and Protocol 12: Justification for non-ratification

UK said that Protocol 12 is not realistic and not practical to be implemented because of three main reasons. The first one is that there is a vague definition of the scope of this law. They say that the exact scope of the statement, “rights set forth by law”. The second reason is that the Protocol does not recognize the European Court of Human Rights case law since it does not allow for “objectivity and reasonably justified distinctions” and the third reason is that they say that Protocol 12 “does not make Provision for positive measures”. This means that the UK government does not see any textual reference to a government’s action to permit positive and proportional action to determine the best action to enforce anti-discrimination practices.

Everyone has the right to be protected from any form of discrimination but the ECHR focuses (but not limited to) on state-individual relations which means that they focus on cases which involves the states and individuals who claim to have been discriminated against. The reason for this is because of its aim to protect individuals from the state discrimination. They are principles that adhere to the protection of the right to freedom, liberty, property and equality among the people. Perhaps this could be better explained by the passage:

“All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this declaration and against any incitement to such discrimination.” (Baker)

This passage summarizes the underlying principle behind the effectivity of ECHR article 14. A government or public institution should not choose who to serve because they should serve without bias or discrimination among them. Although there are cases in which the government has the discretion to determine those who they may or may not serve. These instances include when it is in accordance to public policy, during instances of war or the government has decided that the suspension of the right against discrimination is will be beneficial to the state. These instances vary but usually always include the threat to national security. [8]

The Concept of Equality; Analysis

The Concept of Equality is the main reason for the implementation of this particular article. It provides that all men are created equal under the law, with the same rights and obligations that bind them with the state and the law that govern them. They are all given the same rights and freedoms as the other and the government becomes an impartial servant for its constituents to protect and preserve those rights and freedoms.

The government, being the body that protects its constituents must remain impartial and aim to serve the people as best as it. The number of people they serve are among the millions and they are all different individuals, they believe in different things, they follow different cultures, they wear different clothes and they may also speak different languages. The only thing that should matter to the government is that they are all its constituents. They all deserve to be treated the same way as everyone else.

The negative thing about the concept of discrimination is that it is not based on facts rather, it is based on hearsay and gossip which may or may not be true at all. It also generalizes the population and creates a certain feeling of superiority and inferiority. It also creates an illusion of “them and us” in which people are matched against people widening the gap between them to the point that they may no longer be able to work together. Discrimination creates conflict among the individuals who practice them.  It creates a division among the people and makes them go into a cycle of hate. They inflict upon each other unnecessary pain that is difficult to heal. Discrimination eventually leads to anger, hate and violence that could cause the lives of thousands and millions of people.

In the issue of Nation Building, discrimination would prevent the development of a dominant national identity especially in countries such as the United Kingdom who are blessed with various cultures, peoples, beliefs traditions and ways of thinking. If everyone discriminated against everyone then they would not be able to do anything together. Nothing would be done. Everyone would just be stuck fighting one another. It becomes the government’s job to prevent such instances from happening in order to keep government functioning smoothly. In order to do so, it must first establish a culture of thinking and acting objectively in order to better serve the people. The government becomes a role model to follow when it comes to treating other people…

Conclusion

The idea of the protection against non-discrimination is a concept based on unity and equality. The government (and all the peoples of the world) should all recognize the importance of the provision and its impact in both national and personal life. This protection and prohibition against discrimination offers each individual the chance to grow with the same opportunities that is given by their states, rights and freedoms.