Protection against discrimination and promotion of equality of all persons have become a cornerstone of the modern concept of human rights. Article 1 of the Universal Declaration of Human Rights declares that all human beings are born free and equal in dignity and rights. Non-discrimination provisions are in the heart of both universal and regional systems of human rights protection.
Along with the provisions of international human rights instruments, also national legislation of all European states includes general provisions to outlaw discrimination. However, one cannot but admit that these provisions are often declarative, fragmented and do not always effectively cover all grounds for discrimination. National jurisprudence of some states, including the Council of Europe member states, does not fully reflect the fundamental nature of the right to equality.
The original text of the European Convention of Human Rights contained non-discrimination and equality provisions (Article 14) only with regard to enjoyment of other rights envisaged by the Convention. Therefore, the European Court of Human Rights was limited to treating the right to non-discrimination only as a subsidiary right, in conjunction with other substantive or procedural rights enshrined in the Convention. As a result, relevant case-law accumulated by the Court is limited disproportionally to the utmost significance of the principle of non-discrimination.
Protocol 12 to the Convention opened a new stage in the development of the Council of Europe legal framework pertinent to non-discrimination and equality. Regrettably, most of the Council of Europe member states are yet to ratify this Protocol, despite consistent efforts of the Council of Europe and, in particular, its Parliamentary Assembly.
In a major effort to modernise and integrate legal standards relevant to non-discrimination and equality, a group of prominent experts, under the auspices of an independent international NGO “The Equal Rights Trust”, elaborated the Declaration of Principles on Equality. Thomas Hammarberg, the Council of Europe Commissioner on Human Rights, was one of the 128 original signatories to the Declaration, which has subsequently been signed by numerous further experts from Europe and other regions.
The Declaration is a short document consisting of 27 concise legal principles. It highlights the substance of the fundamental right to equality; states that equal treatment as an aspect of the right to equality is not equivalent to identical treatment, and that to realize equality it is necessary to treat people differently according to their different circumstances; and defines positive action as a necessary element within the right to equality. Subsequent chapters of the Declaration cover such essential issues as the scope, the rights-holders and the duty-bearers of the right to equality, and obligations, enforcement and prohibitions.
Given the outstanding importance of the principles of equality for achieving the statutory goals of the Council of Europe, the Assembly decides to study the Declaration of Principles on Equality with the view to improving the effectiveness of application of existing legal instruments that aim at promoting equality, as well as possible further strengthening, harmonising and modernising of the existing legal framework. The Assembly also decides to take measures for promoting the basic ideas of the Declaration in the Council of Europe member states.