DIFERENCIA CON EL ESTADO DE NECESIDAD

specific group rights. These two themes, under international and regional bodies, are elaborated in section 2, whereas the role of the EU is analysed in section 3.

1.3.

What is the ‘record’ of states’ ratification of the international and

regional instruments?

1.3.1. United Nations

Table 3 illustrates the diverse picture of states’ signature and ratification of the three most relevant mechanisms under the First Optional Protocol to the ICCPR, the Optional Protocol to the ICESCR and Article 14 of the ICERD, and the Optional Protocol to the CRC on a communications procedure and CEDAW Optional protocol giving the right for individual complaints.

76 _{The term ‘indigenous’ minorities carries different protection than just recognised traditional minorities, such as} for example, intellectual property rights. In the EU there are just a few indigenous people minorities, such as the Sami in Norway, Sweden and Finland. (See more: http://minorityrights.org/minorities/overview-of-europe/).

Table 3. Ratifications of the most relevant UN individual or collective complaint instruments Countries ICCPR, First Optional Protocol ICESCR, Optional Protocol ICERD, Article 14 CRC, Optional Protocol CEDAW, Optional Protocol Estonia Yes No No No No

Finland Yes Yes Yes Yes Yes

France Yes Yes Yes Yes Yes

Greece Yes No No No Yes

Hungary Yes No Yes No Yes

Italy Yes Yes Yes Yes Yes

Romania Yes No Yes No* Yes

Serbia Yes No Yes No* Yes

Slovak

Republic Yes Yes Yes Yes Yes

Spain Yes Yes Yes Yes Yes

Sweden Yes No Yes No Yes

* Only signed, not ratified

Source: Authors, 2017, based on the official data.77

 Collective or individual nature of a complaint?

The First Optional Protocol of the ICCPR, speaks only about ‘individuals’, who claim to be victims of violations enshrined in the Covenant (Article 2). However, four remaining treaty bodies, covered in Table 3 above consider complaints made by individuals and groups of individuals (the CEDAW Optional Protocol, the CRC Optional Protocol, Article 14 of the ICERD and the ICESCR Optional Protocol). In addition, the CRC Committee, CEDAW Committee and CESCR can receive complaints made on behalf of an individual or a group of individuals. Still, all three treaty bodies, while allowing other actors to act on behalf of an individual, actually require the consent of the individual “unless the author can justify acting on their behalf without such consent”, as for example established in the CRC, Article 5 para. 2.

The collective nature of complaints indicates the possibility to challenge the institutional nature of violations. It also gives rise to actions from various ethnic minority groups to protect themselves from the violations. Thus, for example, CERD has been used to uphold the rights

77 _{See for example: http://indicators.ohchr.org ; http://www.osce.org/hcnm/42060?download=true’;} https://web.archive.org/web/20110211223019/http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg _no=IV-2&chapter=4&lang=en .

of different minorities, such as Roma78 _{and Jewish minorities,}79 _{as well as naturalised or not} naturalised persons of foreign origin.80_{Collective nature of complaints or actio popularis}

is a particularly important instrument for watchdog civil society to held the governments accountable for institutional discrimination against ethnic, religious and linguistic minorities.

Besides the individual or group complaints at the UN level there are two other important mechanisms:

 Interstate complaints foresee that as peers, state parties of the relevant treaty can ask a peer about compliance with human rights standards. Nevertheless, this instrument is used very rarely, as states contemplating starting a procedure do not want to be targeted themselves.

All five treaty bodies covered in this section have some sort of interstate complaints facility. Article 10 of the Optional Protocol to the ICESCR and Article 12 of the Optional Protocol to the CRC provides that the treaty body itself could review such interstate claims. The ICERD, ICCPR and the CRC foresee a special procedure – the establishment of an ad hoc conciliation commission. In addition, the CERD, ICERD and CEDAW also foresee a possibility to refer unsolved disputes to the International Court of Justice; however, the interstate complaints procedure has never been used.81  Theinquiry procedure is another UN complaints procedure that may be used by the

UN treaty bodies, which can be invoked upon “a receipt of reliable information on serious, grave or systematic violations by a State party of the conventions they monitor”.82 _{This provision is in Article 8 of the Optional Protocol to CEDAW, Article 11} of the Optional Protocol to ICESCR and Article 13 of the Optional Protocol to the CRC. State parties nonetheless have a possibility to opt out of this clause when ratifying the Convention (Optional Protocol to the CEDAW) or at any time (Optional Protocol to the ICESCR). The key feature of this procedure is confidentiality and that the state party is involved or at least that “the cooperation of the State party shall be sought at all stages of the proceedings”.83

1.3.2. Council of Europe

The desk research reveals that at the CoE level, expanding the scope of a general non- discrimination principle, as foreseen in Article 14 of the ECHR, seems to be quite challenging (see Table 4). Out of 11 countries selected for this study, only 4 have ratified Optional Protocol 12 of the ECHR.84 _{Finland and Spain were among the selected EU-15 countries that} have ratified Optional Protocol 12. Serbia, a pre-accession country, has done so, as has Romania, a post-2014 EU enlargement country. This could be related to EU accession, as later discussed in this subsection.

78 _{CERD, Communication No. 31/2003: L.R. v Slovakia. 10/03/2005. UN CERD. 10 March 2005; CERD,} Communication No 13/1998: Koptova v Slovakia. 01/11/2000.

79 _{CERD, Communication No. 30/2003The Jewish community of Oslo et al. v. Norway. UN CERD. 15 August 2005.} 80 _{CERD, Communication No. 34/2004: Gelle v. Denmark. 15/03/2006". UN CERD. 15 March 2006 – a case pertaining} to a Danish citizen and resident of Somali origin; CERD, Communication No 4/1991: L.K. v. Netherlands. 16/03/93.". UN CERD. 16 March 1993. A case concerning a Moroccan citizen currently residing in Netherlands.

81 _{Office of the UN High Commissioner for Human Rights, “Human Rights Bodies - Complaints Procedures”.} (http://www.ohchr.org/EN/HRBodies/TBPetitions/Pages/HRTBPetitions.aspx).

82 _Ibid. 83 _Ibid.

84 _{Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No.177,} opened for ratifications in Rome, 04/11/2000.

Table 4. Ratifications of the relevant CoE instruments Countries Party of the European Charter on Regional or Minority Languages (ECRML) Party of the Framework Convention on the Protection of Minorities (FNCM) Party of the European Convention on Human Rights, Optional Protocol 12

Estonia No Yes No*

Finland Yes Yes Yes

France No* No No

Greece No No* No*

Hungary No* Yes No*

Italy No* Yes No*

Romania Yes Yes Yes

Serbia Yes Yes Yes

Slovak Republic Yes Yes No*

Spain Yes Yes Yes

Sweden Yes Yes No

* Only signed, not ratified

Source: Authors, 2017, based on the official data.85

Only three (Finland, Romania and Spain) out of the ten EU Member States investigated in this study have ratified the Optional Protocol 12 as well as Serbia, being the eleventh country covered in this report.

 Optional Protocol 12 to the European Convention on Human Rights

Protocol 12 provides for a general prohibition of discrimination. The current non- discrimination provision – Article 14 – of the European Convention on Human Rights is of a limited kind because it only prohibits discrimination in relation to at least one of the other rights guaranteed by the Convention. Article 14 on the prohibition of discrimination provides that “[t]he 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 origin, association with a national minority, property, birth or other status”.

Protocol 12 removes this limitation and guarantees that no one shall be discriminated against on any ground by any public authority.86 _{This is of particular importance to emerging minority} groups and situations falling outside the protection of the ECHR, such as discrimination in employment.

85 _{https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/148/signatures?p_auth=ibCY0AMt;}

https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/157/signatures?p_auth=3TzJ5wto; https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/177/signatures?p_auth=RmUUVblf.

Figure 4. Ratification rate of current EU and pre-accession countries*

* Pre-Accession refers to seven Balkan countries that are in negotiations with the EU; enlargement refers to recent EU enlargements after 2004; EU-15 refers to ‘old EU’ Member States that joined the EU before 2004; others are the remaining CoE countries.

Source: Authors, own compilation on the basis of CoE, Chart of signatures and ratifications of Treaty 177, Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms, status as of 26.5.2017 (https://www.coe.int/en/web/conventions/full-list/-

/conventions/treaty/177/signatures?p_auth=RmUUVblf).

Figure 4 above indicates that among the current pre-accession countries there have been comparably higher rates of ratification (five out of seven), whereas for Member States that participated in EU enlargements since 2004 or made up the EU-15 (old EU Member States), approximately just a third have ratified Optional Protocol 12.

All in all, only 10 out of 28 EU Member States have ratified the Optional Protocol 12 accepting the ECtHR competence to decide on the discrimination cases, whithout necessarily invoking another ECHR right. This is an interesting finding, in light that non- discrimination is indeed the key element of the EU legal framework (see section 3).

5 5 5 5 1 5 6 5 1 3 4 1

Pre-Accession Enlargement EU-15 Others

2. INTERNATIONAL AND REGIONAL LEGAL STANDARDS