JOINT SEPARATE OPINION OF JUDGES WIARDA, GANSHOF VAN DER MEERSCH AND BINDSCHEDLER-ROBERT

(Translation)

We agree in general with paragraphs 1 to 48 of the judgment but, to our regret, we are unable to associate ourselves with the conclusion in paragraph 49.

The applicant union is the only trade union, in the strict sense of the term, in which combine members of the Belgian municipal police, and it comprises a very large proportion of them; as such, it is representative of this category of officials.  Yet the applicant union is excluded from the benefit of the obligatory consultation provided for by the Act of 27 July 1961 on the ground that it fails to fulfil one of the conditions of representativeness defined in Article 2 para. 2 of the Royal Decree of 2 August 1966 , that of being "open to all staff of the provinces and municipalities".

Is is stated in paragraph 48 of the judgment that the aim sought to be achieved by Belgium in issuing the regulations at issue - to avoid "trade union anarchy" and "to ensure a coherent and balanced staff policy taking due account of the occupational interests of all provincial and communal staff" - is a legitimate aim in itself.  We share the opinion of the majority of the Court on this point; nevertheless, the pursuit of the aim in question would in our view not only not exclude, but even demand, the taking into consideration of the specific occupational interests of certain categories of officials.  While we accept, like the majority, that the measure contained in Article 2 para. 2 of the Royal Decree of 2 August 1966 constitutes a proper means of attaining that end insofar as consultation covers questions of a general nature which are of interest to all provincial and municipal staff, the same is not true of matters peculiar to the municipal police.

These matters are both numerous and important.  As explained in paragraph 14 of the judgment, the municipal police combine functions of two fundamentally different kinds, those of administrative and crime-deterrent police and those of criminal police; in the exercise of these different functions the municipal police is subject to separate authorities.  By reason of the very nature of its various functions, the municipal police is in a position which is basically different from that of other provincial and municipal staff.  It follows that the occupational interests of the members of the municipal police do not invariably coincide with those of the other staff and in some instances are totally disparate.  The responsible authorities are quite aware of this, as they often make regulations valid solely for the municipal police - for example, the Royal Decree of 12 April 1965 and ministerial circular of 18 May 1965 on the qualifications for the post of superintendent or deputy superintendent ( Moniteur belge of 21 May 1965) - or constituting exceptions, as regards that force, to the rules applicable in general to all provincial and municipal staff.

For the observance of the obligations binding upon it under Articles 11 and 14 (art. 14+11) of the Convention, taken in conjunction, the Government should therefore, in specific matters such as those, consult the applicant union in which combine the persons mainly interested.  This would not lead to any real danger of "trade union anarchy".  The disadvantage suffered by the members of the applicant union in the protection of their occupational interests by reason of the uniform and inflexible character of the criterion laid down by Article 2 para. 2 of the Royal Decree of 2 August 1966 cannot be justified; it necessarily entails discrimination compared with the members of the trade unions which are consulted under the Act of 27 July 1961 .

SEPARATE OPINION OF JUDGE SIR GERALD FITZMAURICE

I.

1.  I agree with the judgment of the Court in the present case that there has been no infraction of Article 11 (art. 11) of the European Convention on Human Rights.  Nevertheless, my approach to its interpretation differs in certain important respects from that of the Court.  As regards Article 14 (art. 14) I must differ entirely, inasmuch as I consider that Article (art. 14) to be totally irrelevant and inapplicable so soon as it is found - as the Court ’ s judgment does find - that the right or freedom, the enjoyment of which must not be subjected to discrimination contrary to Article 14 (art. 14), is not a right or freedom "set forth" (vide Article 14) (art. 14) in Article 11 (art. 11) or any other provision of the Convention.  Thus for me it is not so much a question of whether, in the present case, there has or has not been discrimination, as that this question does not arise.  If it did arise for me, I should hold that there had been discrimination for the same reasons as those stated in the joint separate opinion of Judges Wiarda, Ganshof van der Meersch and Bindschedler-Robert in this case.

2.  However, before I come to these matters I would like to deal with certain others of a more general character, raised by the written and oral arguments of the Commission in the present case - matters which concern the interpretation and application of the Convention as a whole.

3.  In paragraph 56 of its report in the present case, the Commission referred to a previous report mad e by it - in the Golder case [1] . After recalling the views as to the principles of interpretation applicable to the European Convention which it had expressed in paragraphs 44-46 of the latter ( Golder ) report [2] , it went on to quote verbatim the following passage from paragraph 57 of that report, on which it was stated that "special emphasis" was laid:-

"The overriding function of the Convention is to protect the rights of individuals and not to lay down as between States mutual obligations which are to be restrictively interpreted having regard to the sovereignty of these States.  On the contrary the role of the Convention and the function of its interpretation is to make protection of the individual effective."

(- "but only", it should at least have been added, "within the limits of the Convention as such").

4.  The opinion expressed in the above-quoted passage has been vigorously developed on behalf of the Commission in two later cases [3] , also, like the present National Union of Belgian Police case, involving questions of trade union rights arising out of Articles 11 and 14 (art. 11, art. 14) of the Convention, very similar to those in issue in the present case.  Although the Court has not yet pronounced itself on these other cases, the public oral arguments in respect of them have been delivered, and the verbatim record of them is available [4] .  I can therefore properly comment on them to the extent at least that they are relevant to the parallel questions at issue in the present (National Union of Belgian Police) case.

5.  The passage quoted in paragraph 3 above is obviously correct in one respect, where it says that it is not the function of the Convention "to lay down as between States mutual obligations" – that is to say obligations of the type where performance by each party of its obligations is conditional on a corresponding performance by the others.  The obligations of the Human Rights Convention are objective obligations, which each party is independently bound to carry out. Non-performance could not, in principle, and special circumstances apart, become excusable merely on the ground of a failure to perform by another party.  However, this in no way disposes of the quite separate question of whether those obligations are to be construed liberally or conservatively (terms which I prefer to broad or extensive on the one hand, and narrow and restrictive on the other).

6.  This question of construction I dealt with in some detail in paragraphs 32-39 (more especially 38 and 39) of the dissenting part of my separate opinion in the Golder case.  The Commission has had an opportunity in the present (Belgian Police) case to answer the points I then made, but it has not done so.  The passage quoted in paragraph 3 above contained no answers to them, their essential feature being that they consisted largely of statements of incontrovertible fact, not simply opinion.  The European Convention on Human Rights was a Convention of a highly novel character that had never before been concluded; it did involve the Contracting Parties in obligations of a kind governments had never previously undertaken, and concepts which, only twelve years previously perhaps (before 1940), would have been regarded not only as unthinkable, but as being quite outside the normal framework of international law - particularly as regards the revolutionary notion of the right of the individual to petition in an international forum against his own government; and for these reasons governments, though they caused the Convention to be drawn up, were slow to bind themselves to it as actual parties, and still slower to accept the separately provided for right of individual petition, as to which they have retained the faculty to accept it only temporarily, and to free themselves from it in due course if they so desire.  And it is such separate and voluntarily continued acceptance alone that has given the Court and the Commission jurisdiction to hear and determine cases of this class - to which the present one, like the Golder case, belongs.

7.  In such circumstances, can it really be contended with any credibility, as was done in the later arguments before the Court [5] , which I mentioned in paragraph 4 above, that "the whole notion that it [the Convention] has to be understood in terms of the intention of the parties in 1949/50 ... is quite unrealsistic "?  What would be unrealistic would be any other view than that, even though what the parties then intended may not be the sole applicable criterion.  But to pretend that it is not at least one of the most important of the applicable criteria - that it must even be excluded entirely - this is what would lack realism and reason.

8.  The remark which I have just cited was followed up and stressed by another, wich I here quote somewhat out of context - a lapse which I will put right in a moment.  It was to this effect, namely that "one must not be influenced by what governments may have thought they were achieving or were trying to achieve in 1949 and 1950." [6]   Not even to be "influenced by" is surely to go rather far, since it seems to suggest that one should actually ignore or take no serious account of what the governments thought.  This is not a tenable view; and with regard to it I believe it is pertinent to remember that the functioning of the European Convention, and of its enforcement and judicial machinery, is watched by non-European Governments who would be even more hesitant to subscribe to the right of individual petition than the European governments were in 1949/50 - as is clearly shown by the continuing lack of any move to introduce a similar concept, or machinery, into the Universal Covenants of Human Rights.  There is a risk in my opinion that such governments would be seriously deterred from ever doing so if it appeared that one of the consequences was liable to be that the limitations which they intended as to the scope of the relevant covenant or convention may not be respected by the organs of enforcement.

9.  The context of the remark I quoted early in paragraph 8 above was as follows.  The speaker had expressed the view that the European Convention, "although in form a treaty", was not "a treaty in the traditional sense" but was really in the nature of a "constitutional instrument" (the intended inference presumably being that the ordinary rules of treaty interpretation would not necessarily apply to it). The speaker went on to point out that the article on interpretation in the Vienna Convention on the Law of Treaties (Article 31) made no mention of the intentions of the parties, but rather of the object and purpose of the treaty.  There then followed the passage quoted in paragraph 8 above, preceded by the words, "therefore, even if it [the European Convention] is regarded as a treaty, one must not be influenced by what governments may have thought", etc.  This chain of reasoning calls for the following observations:

(i) The objects and purposes of a treaty are not something that exist in abstracto: they follow from and are closely bound up with the intentions of the parties, as expressed in the text of the treaty, or as properly to be inferred from it, these intentions being the sole sources of those objects and purposes.  Moreover, the Vienna Convention - even if with certain qualifications - indicates, as the primary rule, interpretation "in accordance with the ordinary meaning to be given to the terms of the treaty"; - and as I have previously had occasion to point out, the real raison d ’ être of the hallowed rule of the textual interpretation of a treaty lies precisely in the fact that the intentions of the parties are supposed to be expressed or embodied in - or derivable from - the text which they finally draw up, and may not therefore legitimately be sought elsewhere save in special circumstances; and a fortiori may certainly not be subsequently imported under the guise of objects and purposes not thought of at the time.  From these considerations it is therefore clear that the Vienna Convention implicitly recognises the element of intentions though it does not in terms mention it.

(ii) I have no quarrel with the view that the European Convention - like virtually all so-called "law-making" treaties - has a constitutional aspect, although the considerations summarised in paragraph 6 above indicated that, even regarded as a constitution, the Convention should be given a conservative rather than an extensive interpretation.  But what I find it impossible to accept is the implied suggestion that because the Convention has a constitutional aspect, the ordinary rules of treaty interpretation can be ignored or brushed aside in the interests of promoting objects or purposes not originally intended by the parties.  Such a view moreover overlooks the patent fact that, even in the case of constitutions proper, and even allowing for certain permissible interpretational differences of treatment between treaties and constitutions as indicated in paragraph 32 of the dissenting part of my opinion in the Golder case, there are rules of interpretation applicable to constitutions, and these rules have in large measure a character closely analogous to those of treaty interpretation.  Thus national courts will interpret their national constitutions - or legislative acts made under them - with reference (inter alia at least) to the intentions of the legislature, or original framers of the constitution, in the sense at any rate that interpretations clearly not contemplated by these, or falling outside the scope of the legislative clause or constitutional provision concerned, will normally be rejected.  Furthermore, at least in all countries in which there is a basic written constitution, it is precisely one of the functions of the courts to characterise, as being "unconstitutional", acts, whether of the executive or of the legislature, which are considered to be contrary to or not compatible with the letter or spirit of the constitution, - something which it would be hardly possible to do without taking due account of the factor of "intentions".

10.  I am not of course suggesting that a Convention such as the Human Rights Convention should be interpreted in a narrowly restrictive way - that it should not indeed be given a reasonably liberal construction that would also take into consideration manifest changes or developments in the climate of opinion which have occurred since the Convention was concluded.  But this is a different matter, and quite different from the subservience to policy that seems to have been advocated in recent argument before the Court, in which the speaker terminated his remarks by stating: "I conclude by saying that law is always the instrument of poli cy". [7] Even allowing for the fact that this remark is here being quoted out of the immediate context [8] , such a conclusion is dangerous unless carefully qualified, - for if taken literally and generally, it would seem to justify the excesses of courts of law in the carrying out of the policies of some of the worst tyrannies in history.  In my view the integrity of the law requires that the courts should apply it neither as the instrument, nor as the contriver, of policy, but in accordance with their own professional standards and canons.

11.  I now turn from these general questions of approach, concerning the interpretation of the Convention as a whole, to that of the interpretation to be given to the particular provisions material in the present case - principally Articles 11 and 14 (art. 11, art. 14).

II.

Article 11 (art. 11)

12.  The relevant part of this provision reads:

"Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests."

I am in general agreement with what the judgment says about Article 11 (art. 11), except that I share the minority view in the Commission as regards the phrase "for the protection of his interests", namely that this is redundant.  I would put it this way that doubtless this phrase plays a useful semantic part in indicating pro maiore certo what is the main object of the preceding phrase, to which it is directly attached, viz., "the right to form and to join trade unions" (for the protection of, etc.) - but that it is in no way necessary in order to import this notion of protection of interests into that of the right to form and join trade unions since, according to the normal concept of a trade union, this right can, in that context, have little purpose other than the protection of the members ’ interests - or, more accurately, must at least comprise that purpose amongst, possibly, others.  Indeed there is even a certain danger in the express reference in Article 11 (art. 11) to the protection of interests, and to that alone, for it could well suggest that this is the only purpose of a trade union, or at least the only trade union activity that the Convention purports to protect, - which was probably not the intention.  Strictly, the phrase under discussion has a limiting effect and, if interpreted literally, would involve that the Convention conferred a right to form and join a trade union if it was for the protection of the members ’ interests, but not otherwise.

13.  It seems to me however, that since a trade union that did not have the capacity to protect its members ’ industrial or professional interests would serve little or no useful purpose and would be difficult to reconcile with the normal idea of a trade union, it must really be regarded as inherent in the freedom to form and join a union, that the union should, when formed, have this capacity.  If this is correct the phrase, "for the protection of his interests", while it may make certainty more certain, does not strictly add anything of substance that would not already be there.  In thinking this, I do not overlook what was said on behalf of the Commission during the oral hearing in the present case as recorded in the last paragraph o n p. 73 of the final record. [9] But persuasive though these considerations may be in themselves, the case of a trade union formed for the protection of its members ’ interests seems to me, at least in the present context, to be so very much the usual one as to render other possibilities unreal.

14.  Be these things as they may, the notion of trade union formation for the protection of its members ’ interests implies (and here I agree with the Court ’ s judgment) some definite minimum right of activity for the union so formed; - and moreover a right of institutional activity, qua union - for if it still remained the case that only individual action was open to members, the whole point of association in a trade union context, which is precisely corporate action, would be lost.

15.  In considering what the notion of trade union activity comprises for purposes of Article 11 (art. 11), it is perhaps more important, or will at any rate be more fruitful, to enquire what that notion does not include, as much as what it does.  Without going into detail, I believe the distinction to be made, on the basis of a straightforward interpretation of Article 11 (art. 11), is that which can broadly be drawn between, on the one hand, the rights and freedoms of the individual in forming a union and, following on that formation, the activities of the union itself, - and, on the other hand, the obligations of employers, whether in the public or private domain, and of the State in its capacity as such in relation to those individual and union rights, freedoms and activities.  In my opinion, such obligations do not in principle extend beyond the obvious "counterpart" obligations to allow or permit and not interfere with, impede or prevent the exercise by individuals and unions of those rights, freedoms and normal activities. (Even here there is an important qualification to be made which I shall mention in a moment.) What the obligations of employers, whether in the public or private sector, or of the State as such, do not, on the basis and wording of Article 11 (art. 11) include, are such things as consultation [10] with unions, negotiation with them, the conclusion of agreements, etc., - still less the granting to the unions or their members of any specific economic or industrial terms.  Whether there is a duty of another kind for the employers to do one or more of these things, is another matter, but it is not a legal duty deriving from either the language of Article 11 (art. 11) or from any reasonable inference to be drawn from that language.

16.  It follows from this that I must disagree entirely with the view expressed at the end of paragraph 69 of the report of the Commission in the present case, to the effect that the words "freedom of association" in Article 11 (art. 11) may legitimately be extended to cover State responsibility in the sphere of labour/management relations - i.e., of relations between labour and management.  This might perhaps be so in certain very limited particular instances; but as a general statement of principle it is far too sweeping.  Even the "counterpart" obligation of the employer and of the State, not to prevent or impede normal trade union activity, which I have already mentioned, must be subject to at least one important qualification, - namely that it cannot extend to imposing any duty on the employer or the State to remain passive in the face of strike or other industrial action by the union or any of its members whether acting individually or together.  If there is on the one side a right to engage in strike action and its possible accompaniments, such as picketing etc., (as to which I make no pronouncement), then this must be balanced on the other by a right of lock-out, prevention of "sit-ins", withdrawal of certain financial benefits, etc.  The one not only implies, but entails, the other.  This is the principle of "equality of arms" which is but another facet of the right of self-defence within the limits of the law - that right which is graphically illustrated through the irony of the saying, " Cet animal est méchant , quand on l ’ attaque il se défend !"  Moreover, the principle of action within the law must also operate both ways.  If employers and the State as such, must conform to this, so also must trade unions.  Article 11 (art. 11), whatever it may or may not comprise, cannot validate extra-legal activities, assuming always that the law permits or does not prevent normal trade union activity in the furtherance of industrial interests so long as this is peaceful, non-violent and non- coercitive (apart of course from the natural and inherent pressures resulting or inseparable from the very fact of strike action and its legitimate concomitants).

17.  Even if some of these observations are only obiter dicta in the actual context of the present case, they serve to re- inforce my conclusion that the refusal of the Belgian Government to recognise the National Union of Belgian Police as one of the organisations most representative of the staff of the provinces and communes for purposes of consultation did not infringe Article 11 (art. 11) of the Convention, - indeed I doubt whether that Article as such has any true application to this type of complaint.

III.

Article 14 (art. 14)

18.  The relevant part of this provision reads:

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour ..." etc.

I find it difficult to agree with this p art of the Court ’ s judgment, or even to see how the Court manages to arrive at it.  In my opinion, so soon as it is established (as the earlier part of the judgment does) that Article 11 (art. 11) does not embody any right for trade unions to be consulted, or any obligation for the authorities to consult them, Article 14 (art. 14) can have no possible sphere of application.  This is because, according to the plain language of that Article (art. 14), it is only the "enjoyment of the rights and freedoms set forth in this Convention" - [my italics] - that is to be "secured without discrimination".  (Here, and before going further, I would interject that, in what follows, I shall, generally speaking, take no separate account of the notion of a "freedom" which, in the context, I regard as being merely another way of describing a right, or a way of describing another kind of right - since the notion of freedom to be consulted has no real juridical content - (and see further footnote 15 below)).  To resume, if - as the Court finds – the right to form and join trade unions for the protection of the members ’ interests does not comprise any right for trade unions to be consulted by the authorities, then a right of consultation is not one of "the rights and freedoms set forth in this Convention", and the issue of discrimination becomes irrelevant.  No question of the discriminatory or non-discriminatory application or enjoyment of a right can arise unless that right itself exists in the first place, to be conceded whether discriminatorily or not.  Otherwise Article 14 (art. 14) has nothing to bite upon.  Where no right at all exists, but only a certain voluntary practice (of consultation), the practice may be exercised discriminatorily, but this cannot be a breach of Article 14 (art. 14), which only enjoins non-discrimination in the enjoyment of "rights and freedoms", not of mere voluntary or discretionary, and non-binding practices.

19.  The view (to the contrary) expressed in paragraph 44 of the Court ’ s judgment seems to me not only not to answer these points but to ignore them completely, or at least "by-pass" without coming to grips with them, although of course they were fully made known to the Court.  I draw attention in particular to the following aspects of the Court ’ s view:

(i) In the first sub-paragraph of paragraph 44 of the judgment it is stated (second sentence) that "although Article 14 (art. 14) has no independent existence [11] , it is complementary to the other normative provisions" of the Convention.  The words I have italicised in this sentence, though not incorrect, are elliptical and slide round the essential requirement of Article 14 (art. 14) that the "other normative provisions" concerned should consist of "rights and freedoms set forth in this Convention", which the right to consultation is not - nor even implied - as the Court has found.  It is also of course correct to say that Article 14 (art. 14) complements these other provisions, but (a) it does so only in the manner which I indicate in paragraphs 23 and 24 below, and (b) it can only complement them if they exist as independent rights and freedoms - which is not here the case.

(ii) The third sentence of the first sub-paragraph of paragraph 44 of the judgment starts as follows: "A measure which in itself is in conformity with the requirements of the Article enshrining the right or freedom in question . .." But the Court has just found in the earlier part of its judgment that a right to consultation is not enshrined in Article 11 (art. 11).  This fact therefore, and the Court ’ s disregard of it, vitiates the whole reasoning and effect of this sentence, the further words of which I give in footnote 12 below [12] .

(iii) The final sentence of the first sub-paragraph 44 of the judgment adds nothing really, for whatever may be the truth about Article 14 (art. 14), it must be the same whether it stands on its own or is considered to be separately integrated in each individual Article of the Convention.  But I discuss this further in paragraph 20 below.

(iv) The argument contained in the second sub-paragraph 44 of the judgment which I also reprodu ce textually below [13] equally fails, and for the same basic reason.  The "right embodied in the Convention", the "right of this kind" - i.e. so embodied - which the Court "has noted at paragraph 39" as being "enunciated" in Article 11 (art. 11) turns out to be a right for a trade union to "be heard". But even if Article 11 (art. 11) did enunciate such a right - (in fact, it is at most implied) - it would not be the right under discussion in the present case.  As indicated in footnote 10 above, the right to consultation as it has arisen in these proceedings, and in the form which it takes in the National Union of Belgian Police complaint, is quite a different thing from a right to be heard - (i.e., if the union asks to be): it is a right to be consulted on the initiative of the employer or the State, even if it has not asked to be heard.  This is a vastly different thing.  The Belgian Government is not refusing to hear the applicant union: it is failing to consult it in the way it does certain other unions.  Whether or not the right to be heard is enshrined by implication in Article 11 (art. 11), the right to be consulted in the above sense of that term is not - as indeed the Court has found.

(v) It would seem therefore that all the considerations set out in paragraph 44 of the judgment must fail, or amount at best to half-truths that avoid the essential issue that has to be met, but is not met.

20.  Paragraph 44 of the Court ’ s judgment is evidently founded on, or derived from, the view expressed in the Belgian "Linguistics" case, to which it refers, and some of the language of which it recalls. Granted that it may be difficult to depart from conclusions arrived at in a case that has acquired so much prestige as that one. Nevertheless, the Court, like all international tribunals, and unlike some national ones, is not bound by precedent; and if good reasons arise for doubting whether a particular view previously expressed was correct, the Court should not hesitate to review the matter.  In my opinion the view expressed in the "Linguistics" case was seriously incorrect; but before commenting upon it; I will set out the essential passage concerned, which is referred to, but not quoted, in paragraph 44 of the Court ’ s judgment.  In this passage the Court, as it was constituted at the date of the "Linguistics" case (merits), and speaking of "the guarantee laid down in Article 14 (art. 14) of the Convention", said (paragraph 9 on pp. 33 and 34 of the judgment) [14] :

"While it is true that this guarantee has no independent existence in the sense that under the terms of Article 14 (art. 14) it relates solely to ‘ rights and freedoms set forth in the Convention ’ , a measure which in itself is in conformity with the requirements of the Article enshrining the right or freedom in question may however infringe this Article when read in conjunction with Article 14 (art. 14) for the reason that it is of a discriminatory nature."

The Court then gave as an example the case of a State which was under no obligation to set up "a particular kind of educational establishment" but held that, if nevertheless, the State in fact did so, it could not "in laying down entrance requirements" apply discriminatory criteria.  It then continued:

"To recall a further example ... Article 6 (art. 6) of the Convention does not compel States to institute a system of appeal courts.  A State which does set up such courts consequently goes beyond its obligations under Article 6 (art. 6).  However, it would violate that Article, read in conjunction with Article 14 (art. 14+6), were it to debar certain persons from these remedies without a legitimate reason while making them available to others in respect of the same type of [legal] actions.

In such cases there would be a violation of a guaranteed right or freedom as it is proclaimed by the relevant Article read in conjunction with Article 14 (art. 14).  It is as though the latter formed an integral part of each of the Articles laying down rights and freedoms."

The view thus expressed is, in my opinion, not only wrong but manifestly wrong and, moreover, self-contradictory.  The case of a system of appellate courts is indeed precisely the one I would myself have selected in order to demonstrate how, and in what way, Article 14 (art. 14) cannot be applicable.  Moreover the view (correct in itself) that Article 14 (art. 14) should be read as integrally incorporated in each Article of the Convention, "laying down rights and freedoms" - i.e., in which these are "set forth", can only emphasise that they must be set forth there before the non-discrimination obligation can come into play.  Yet in one and the same breath the Court says that there is no obligation for States under Article 6 (art. 6) of the Convention to establish such a system - which means that the individual has no right to r equire it to be established [15] , which in turn means that such right is not, within the terms of Article 14 (art. 14), a right "set forth in this Convention" which again means that it is not a right in respect of the enjoyment of which non-discrimination is prescribed by Article 14 (art. 14): there is no right to be enjoyed (as of right) and hence no prohibition of discrimination if it is voluntarily accorded by the State.

21.  It will be seen, therefore, that in the "Linguistics" case the Court simply contradicted itself when, on the one hand, it postulated a case of non-violation of Article 6 (art. 6) because that provision involved no obligation (and hence no right) as regards setting up a system of appeals, and then, on the other hand went on to hold that there could nevertheless be a breach of Article 14 (art. 14) even though - ex hypothesi on the basis of the first leg of the Court ’ s finding - the discrimination involved did not relate to any right or freedom set forth in the Convention - as Article 14 (art. 14) requires.

22.  It should not be necessary to labour such an elementary point, - but it may all the same be useful if I try to put it in another way. The passage from the "Linguistic" case which I have been discussing speaks repeatedly of a violation of some Article of the Convention (Article 6, Article 11, etc.) "in conjunction" with Article 14 (art. 14+6, art. 14+11).  If this is so, there must be a link - but what is that link?  If the matter in respect of which discrimination is alleged is not one in regard to which some Article of the Convention provides a right or freedom, there is no basis for any link with Article 14 (art. 14).  There can in such a case be no violation of some other Article "in conjunction with" Article 14 (art. 14), for the other Article concerned has been found not to comprise the right or freedom concerned, while, as the Court correctly found in the "Linguistics" case, the "guarantee" contemplated by Article 14 (art. 14) "has no independent existence" inasmuch as "it relates solely to ‘ rights and freedoms set forth in the Convention ’ ".  How then could the Court hold that there had been a violation of a given Article "in conjunction with" Article 14 (art. 14)?  The addition of two negatives cannot make a positive.  There can be no cumulation where there is nothing under either Article, taken by itself, to cumulate.  One cannot cumulate rights or freedoms which, under Article 6, Article 11 (art. 6, art. 11), etc., are not provided for, and which under Article 14 (art. 14), are not independently provided for, but are such as arise solely in respect of rights or freedoms that some other Article does provide for.  In such a case the necessary link is absent, because there is no fundament in either Article to which it can attach.  It is not sufficient to show that Article 11 (art. 11) is an Article that deals in principle or in a general way with trade union activity, or that the subject-matter of a given dispute lies within the field of trade union rights or interests.  This is what the Court is relying on in the present case: but it is not enough.  To suffice it is necessary to show that the particular right in dispute - in this case the right to consultation - is a right conferred by Article 11 (art. 11) as part of that activity.  That is what the Court has found not to be the case.  Hence consultation is not one of the matters to which Article 14 (art. 14) relates.

23.  This analysis can and must be carried further.  It is really an error to speak of a violation of Article 6, Article 11 (art. 6, art. 11), etc. at all, in the context of Article 14 (art. 14), for the whole point of the latter Article is that it operates even where there is no violation of the other Article concerned, provided that this other Article does confer the right or freedom in the application of which there is discrimination.  That is the real purpose of Article 14 (art. 14).  There would usually be no need to invoke that Article (art. 14) if the other Article concerned was itself being violated, irrespective of any discrimination.  In that event the discrimination would only add to the offence - it would not create it.  Article 14 (art. 14) does not require the violation of a right or freedom for its operation but merely its existence under another Article of the Convention; and what it is intended to catch is the case where a right or freedom required by some other Article is being afforded, but in a discriminatory manner.

24.  The considerations just mentioned equally supply the answer to those who argue that if the view which I take were correct, Article 14 (art. 14) would serve no useful purpose and would add nothing to such a provision as Article 6 (art. 6) or Article 11 (art. 11).  In fact, it of course adds a great deal.  Supposing, contrary to the view correctly taken by the Court in the present case, Article 11 (art. 11) did create a right for trade unions to be consulted by the Government, then what Article 14 (art. 14) would add to that would be that it would not suffice simply to afford this right and to honour this obligation.  It would also, and additionally, have to be done in a non-discriminatory manner.  Otherwise, although there might be no infringement of Article 11 (art. 11), there would be a breach of Article 14 (art. 14).  That is what Article 14 (art. 14) does, though only if the basic right under Article 11 (art. 11) already exists.  In consequence, given that indispensable condition (but not otherwise), Article 14 (art. 14) has a quite definite and important sphere of application and is not in any way rendered a dead letter by the view I take.  Without it, discrimination would be permissible so long as the right itself was not in principle withheld.

25.  To conclude - apart from the separate point considered in my final paragraph below - it comes to this, that what the Court is really doing here (and the same is true for the "Linguistics" case) is to interpret and apply Article 14 (art. 14) as if the words "set forth in this Convention" did not figure in it at all, and as if the opening phrase read "The enjoyment of [all] rights and freedoms shall be secured ..." etc.  But this would be (contrary to what was correctly held in the "Linguistics" case and to the Court ’ s own statement in the second sentence of the first paragraph of paragraph 44 of the judgment) to set up that Article (art. 14) as an independent autonomous provision under which all discrimination in the general field of human rights would be prohibited.  Such a process may have its attractions, and it may be tempting to follow it. Yet a natural and creditable distaste for discrimination in any form cannot justify a conclusion for which no sufficient legal warrant exists, or can exist.  The Court is not a court of ethics but a court of law.

26.  Lest I should overlook it, there is one more category of argument that has been advanced in favour of the view taken in the Judgment of the Court - an argument of a wider order, founded on general principles rather than on the actual language of the Convention. General principles of law, it may be said, can, where relevant, properly be applied in the interpretation and application of a treaty provision, provided that the terms of that provision do not clearly exclude them.  Accordingly, the doctrine suggested was that although there may be no obligation to do a particular thing at all, yet if it is done, it must be done in the same manner, and to the same extent, for all concerned, without penalty or favour.  But whether or not any doctrine of that kind has gained currency in other contexts or for certain purposes, it cannot be regarded as established in such a way as to override the clear language of the Convention, which confines the obligation not to discriminate to cases where the right or freedom concerned is one of those "set forth in the Convention".  In short, the Convention does exclude the application of this doctrine. Let us also not forget the relevance of one of the oldest parables of our civilisation - that of the labourers in the vineyard.  When those who had "borne the heat and burden of the day" complained of being discriminated against because they were paid no more than was paid to those engaged towards the end of the day, the Lord of the Vineyard replied (St. Matthew, cap. 20, vv. 13-15) "Friend, I do thee no wrong ...  Take that thine is, and go thy way ...  Is it not lawful for me to do what I will with mine own?"  Ethically, this might not be the last word; but even ethics - let alone law can be stretched too far. If I choose to help my neighbour tidy up his garden, does this mean that, either in law or ethics, I must do the same for all the other residents of the street?  Voluntary processes, such as trade union consultation, cannot be the subject of valid charges of discrimination contrary to law unless some law makes them so.  In the present case the applicable law is the law of or deriving from the Convention, - and the Convention neither makes consultation obligatory nor non-consultation a breach of any of its Articles.  How then can the consultation of some unions but not others, even if that constituted discrimination, be in any circumstances a breach of a right prescribed by the Convention - since no right of consultation is prescribed by it at all?

[1] In which the Court pronounced judgment on 21 February 1975 .

[2] Report dated 1 June 1973 in relation to Application no. 4451/70 (see Series B no. 16, p. 12 et seq.).

[3] The Swedish Engine Drivers' Union and Schmidt and Dahlström cases (Applications nos. 5614/72 and 5589/72, reports of the Commission of 27 May and 17 July 1974, documents D 64.180 and D 68.252 (rev.)).

[4] Documents CDH (75) 65 and 66 (hearings of 23, 24 and 25 September 1975).

[5] See CDH (75) 65, p. 3.

[6] Loc. cit., p. 3.

[7] CDH (75) 65, p. 75.

[8] This context was "So this is not a matter of proof that one interpretation is demonstrably the right one, but I ... believe ... that the wider interpretation ... gives a more effective use of the Convention, and part icularly Article 11 (art. 11). If I may say so with respect, the choice is perhaps also [sc. as well as a case of interpretation] a matter of judicial policy; but I conclude by saying that law is always the instrument of policy".

[9] CDH (75) 31.

[10] It should perhaps be made clear here that the so-called right of consultation in question in the present case is not the right of the union to approach the employers of the State, but not right (if any) of the union to be consulted as a matter of obligation on the initiative of the employer or the State as such.

[11] This is of course correct in substance but not correctly stated.  As a provision Article 14 (art. 14) does have an independent existence for the purpose stated in paragraphs 23 and 24 below.  What does not, is the obligation not to discriminate, which is tied to and dependent on the existence of a right or freedom set forth in some other Article of the Convention.

[12] "... may therefore infringe this Article when read in conjunction with Article 14 (art. 14) for the reason that it is of a discriminatory nature."

[13] "These considerations apply in particular where a right embodied in the Convention and the corresponding obligation on the part of the State are not defined precisely and consequently the State has a wide choice of the means for making the exercise of the right possible and effective.  As the Court has noted above at paragraph 39, Article 11 para. 1 (art. 11-1) enunciates a right of this kind."

[14] Judgment of 23 July 1968 , Series A no. 6.

[15] As I mentioned earlier the notion of a "freedom" is virtually meaningless in this context.  Anyone is free to call for anything he pleases, but this is not a juridically significant situation.  It is particularly lacking in sense to talk of a freedom to call for the setting up of a system of appellate tribunals.