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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.