Column*
| DOI | 10.1177/092405199701500401 |
| Published date | 01 December 1997 |
| Date | 01 December 1997 |
| Subject Matter | Article |
Column>
Another Protocol to the European Convention on Human Rights?
The
Council
of
Europe's
Steering Committee for Human Rights
(CDDH)
recently
expressed itself in favour
of
an additional protocol to the
ECHR
on non-discrimination.
During its 43rd meeting (21-24 October 1997) the
CDDH
adopted, for the attention
of
the
Committee
of
Ministers, a Final Activity Report on equality between
women
and
men
and
on a legal instrument against racism and intolerance.
The
conclusion
of
this report is that
an additional protocol, broadening the field
of
application
of
Article 14
of
the
ECHR,
is
both advisable and feasible. In its report the
CDDH
requests the Committee
of
Ministers
to give it terms
of
reference to draw up such an additional Protocol before 31
December
1998.
The
CDDH's
landmark report is to be welcomed. So far Article 14
of
the
ECHR
only
prohibits discrimination in relation to the rights and freedoms guaranteed by the
Convention and Protocols. It would therefore be incorrect to consider Article 14
ECHR
to be the full equivalent
of
Article 2G
of
the CCPR. Different from Article 2G
CCPR,
an
autonomous provision which provides comprehensive protection against discrimination in
any field regulated by public authorities, Article 14
ECHR
is merely accessory in nature.
The
protection offered by Article 14 is also more limited than the scope
of
the non-
discrimination provisions recognised in the various European States and appears to be at
variance with European Union law (see also Article
GA/13
Treaty
of
Amsterdam, yet to
be ratified).
The
latter makes it increasingly unlikely for the European
Union
to accede
to the
ECHR
in the near future.
The
discussion on amending Article 14 or adopting ageneral protocol on non-
discrimination dates
back
to the beginning
of
the 1960s. So far, all initiatives died in
committee. It was only during the last few years that the resurgence
of
various forms
of
intolerance, including racism, nationalism, anti-semitism and xenophobia, painfully brought
to light the limitations and deficiencies
of
Article 14. Equally, Article 14 demonstrably
failed to offer adequate protection to various forms
of
gender-related discrimination. This
combination
of
circumstances also explains the decision to find a common solution for the
issues
of
'racism
and intolerance' and 'equality for
women
and
men',
problems the
Council
of
Europe has
been
concerned with for a number
of
years.
It
would
be an illusion to believe that the
new
Protocol will, once adopted and entered
into force, bring an end to all forms
of
discrimination in Europe. Discrimination is an
extremely complex issue and can not only be fought by means
of
legislation. Additional
measures, including the provision
of
information and other positive measures to be taken
by the State, remain indispensable to ensure the dignity
of
and equal opportunities for all.
During the debates preceding the adoption
of
the
CDDH's
Final Activity Report more
concerns
were
expressed by various discussants. It was asserted that the adoption
of
a
new
Protocol entails the risk
of
an increase in the already considerable workload
of
the
European Court.
It
was also submitted that a
new
protocol
may
also have unforeseen
horizontal effects or otherwise lead to unpredictable jurisprudence.
Aart Hendriks is Lecturer in Health Law, University
of
Amsterdam, and Research Associate, Netherlands
Institute
of
Human Rights (81M), the Netherlands. Views expressed in this editorial column are
of
astrictly
personal nature and are not necessarily shared by the other editors.
Netherlands Quarterly
of
Human Rights. Vol. 15/4, 427-428, 1997. 427
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