SLP 06 (2014)

FROM PROHIBITION OF DISCRIMINATION TO PROTECTION OF COLLECTIVE RIGHTS

The international protection of human rights did not evolve linearly in the last century. Rather, it has made a curve: starting from the protection of collective rights in the system established after the First World War it turned to individual rights and prohibition of discrimination after the Second World War to finally return in part to the recognition of collective rights in order to complete the individual rights in certain cases when group interests are at stake. The present volume of Human Rights Studies reflects this evolution and the inherent linkages between the prohibition of discrimination, minority rights and collective rights of certain non-dominant groups. In the first contribution, Anti-discrimination law as a post-modern renaissance of legal privileges , Petr Svoboda analyses in general the trend of legal affirmative discrimination with the aim to protect minorities in postmodern Western states since the end of the 1960s. The essence of affirmative discrimination consist in introduction of new legal privileges. The author puts this trend in the contrast to the principles of equality of all the citizens before the law and of the prohibition of legal privileges, as they were promulgated during revolutions and brought into effect in modern democracies based on the rule of law during the 19th a 20th century. In the next chapter, Equality and the Convention on the Elimination of All Forms of Discrimination against Women , Stanislava Hýbnerová deals with equality of women. According to her, several phases can be discerned in the development of the concept of equality for women, all of them being found in the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) of 1979. The author argues that some of these phases are conflicting and pose problems to interpretation of relevant articles. As an example, she points out the major difficulties concerning interpretation of Article 4 (1) due to internal tension between earlier conception of formal equality that considers affirmative actions as temporary and exclusive and the new conception promoting new and more dynamic understanding of equality which requires qualitative-structural change. The author analyses the different conceptions of equality with respect to actual meaning which can be given to Article 4 (1). In the third contribution, Prisoner Disenfranchisement as Form of Discrimination , Marek Antoš deals with restrictions of right to vote guaranteed by the European Convention of Human Rights. He demonstrates that although the original intention of member states was not to include an individual right to vote in the Convention, the European Court of Human Rights has established the right through its case-law and significantly advanced the gradual trend of enfranchising groups traditionally excluded from elections. Based on the most striking line of jurisprudence which concerns prisoners’ voting the author argues, however, that the Court has partly stepped back from this trend recently.

95