differential treatment based on national ground enhance equality
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A. The Principle of Equal Treatment
The principle of equal treatment is generally recognised as a fundamental legal principle. This principle is often conveyed by the formula that ‘equal situations must be treated in the same way and unequal situations must be treated differently to the degree of their inequality’.1 Yet the meaning of the equal treatment principle does not lend itself to precise definition. As various authors have noted, the requirement for equal situations to be treated the same way is of a formal nature and does not tell us when two cases are equal or what equal treatment consists of.2 The determination that situations are equal or unequal always, therefore, rests on a value judgement that is external to the equal treatment principle itself.3 The same is true with regard to the question of whether a particular form of unequal treatment is nevertheless acceptable because of being based on a reasonable justification (section II.C). Because of this ‘normative indeterminacy’,4 the equal treatment principle as such provides little guidance with regard to the issues addressed in this chapter. Nevertheless, the principle has been translated into a number of legal norms, including provisions in human rights treaties. Through the formulation and application of such norms, the equal treatment principle has gained content. The relevant legal provisions are described below.
B. The Right to Equal Treatment – Relevant Legal Provisions
i. International Human Rights Treaties
The most relevant provisions for the Netherlands with regard to equal treatment as a human rights norm are laid down in Article 14 of the European Convention on Human Rights (ECHR) and Article 26 of the International Covenant on Civil and Political Rights (ICCPR).5 Article 14 ECHR is of an accessory nature, which means that it can only be invoked in combination with one of the substantive rights or freedoms laid down in the Convention or its Protocols. For Article 14 to be applicable it is sufficient for the alleged discrimination to come within the ambit of one of those rights or freedoms; the finding of a violation is not required.6 Thus, where integration requirements for family migrants or religious servants are concerned, Article 14 can be relied on in combination with Article 8 (respect for family life) or Article 9 (freedom of religion). Since 1 April 2005 the ECHR also contains an autonomous provision on equal treatment in Article 1 of its Twelfth Protocol.7 This article is not accessory to the other Convention rights, but extends to any right granted under national law. Although case law on Article 1 Twelfth Protocol is still scarce, the ECtHR has indicated that its interpretation of this provision will be guided by the same concepts and principles that are used to interpret Article 14. The only difference will therefore be the variety in scope.8