Although the principle of equality does not appear as an explicitly guaranteed right in human rights conventions, it is, particularly within the European context, subject to a distinct protection under the general prohibition of discrimination. This is primarily provided through Article 14 of the European Convention on Human Rights. Efforts to align the prohibition of discrimination closely with the right to equality, however, did not end with Article 14. Instead, the Council of Europe established a general prohibition of discrimination on a treaty basis by negotiation of a new Protocol. The prohibition of discrimination in a broader codification can be seen as an advancement in human rights protection at the global level, representing a tangible expression of the principle of equality. Nevertheless, Protocol No. 12 of the ECHR has, compared to other CoE conventions, achieved a remarkably low level of acceptance. It has been ratified by only 20 states and therefore constitutes a normative framework with a relatively weak legitimacy.While the European Court of Human Rights jurisprudence and non-judicial monitoring mechanisms have kept the general prohibition of discrimination partially on the human rights agenda, it appears unlikely that the Protocol will be incorporated into domestic law by a greater number of CoE member states soon.This situation focuses on the divergent positions of member states during the preparatory phase of the Protocol, which help explain the origins of the obstacles to expanding the Protocol’s legitimacy. The current limitations on the Protocol’s normative legitimacy even after 20 years of entry into force can be traced back to diverging state positions observed during the drafting and negotiation process.
Uzun et al. (Thu,) studied this question.