INDIVIDUAL OPINION, PARTLY DISSENTING (POINT I OF THE OPERATIVE PROVISIONS OF THE JUDGMENT), OF JUDGE TERJE WOLD

The majority of the Court has found it expedient to embark upon a discussion of "problems of a more general character" concerning the meaning and scope of Article 2 of the Protocol (P1-2) and of Articles 8 and 14 (art. 8, art. 14) of the Convention. As I disagree with the majority interpretation on important points, I find it necessary to give an individual opinion.

Article 2 of the Protocol (P1-2)

In its report the Commission (majority) basing itself both on the text of the Article (P1-2) and the preparatory works came to the conclusion that Article 2 (P1-2) "does not oblige States themselves to provide any education whatsoever" (Report, para. 375) and further "if the object of the Protocol had been to oblige States either to provide education themselves or to subsidise private education, such an obligation should have been embodied in rules, even if only approximate" (Report, para. 375). I accept this interpretation of the Commission.

The majority of the Court, who, I take it, agree with this interpretation, are, however, of the opinion that Article 2 (P1-2) has also an additional element of a positive character. Referring to the fact that Article 2 (P1-2) applies the term "right to education" and to the fact that all member States possess a general and official education system, the majority lays down that Article 2 (P1-2) guarantees "to persons subject to the jurisdiction of the Contracting Parties the right to avail themselves in principle of the means of instruction existing at a given time" (pages 34-35 of the Judgment). Thus the majority, contrary to the wording of the article, by way of interpretation insert into Article 2, first sentence (P1-2), a positive obligation. The majority goes even further in stating that the individual has also the right to recognition of the studies which he has completed.

In my opinion this is not a valid interpretation of Article 2 (P1-2).

First of all, we should remember that we are dealing with an international convention, and we must clearly distinguish between the rights guaranteed in the Convention and the rights granted the nationals of a country in accordance with its internal, national legislation. We all know that all the European countries have elaborated systems of education, which are at the disposal of their citizens in accordance with the provisions of the laws of each country. But, this access to the educational institutions is not based upon the Convention. In my opinion there is no foundation for this presumption either in the words of the Convention or in the Preparatory Works. On the contrary both the wording of the Convention and the Preparatory Works clearly show quite the opposite.

Several of the articles of the Convention apply the word "right"

- Article 9 (art. 9): Right to freedom of thought, conscience and religion; Article 10 (art. 10): Right to freedom of expression, etc. These rights obviously do not impose upon the member States any positive obligation in regard to guaranteeing the individual citizen "the right" to use for instance the existing churches which the State may own, or to use the means of expression, for instance printing works, newspapers or broadcasting, television or cinema enterprises, which the State possesses. The "right to education" has the same scope and meaning. It does not imply any positive obligation of the State.

A logical interpretation of Article 2 (P1-2) leads to the same result. First, the subject of the right to education is everyone, cf. Article 1 (art. 1). This means that every person within the jurisdiction of any of the member States which has ratified the Convention, has the same individual human right to education. This is not a right of a group or a minority. It is a subjective right of every individual regardless of nationality, race, sex, language. In consequence, it is misleading to formulate the question, which the Court in this case has to decide as a question "if the French in Flanders or the Flemish population in Wallonia have the right to claim education in their national language". All languages hold the same position in regard to the freedom to education. That is expressly said in Article 14 (art. 14). The question before the Court is therefore in fact the following: has every individual person in Belgium the right to claim education in his own national language – a Chinese, a Japanese, an American, a Portuguese? Or, if we accept the majority interpretation of the concept "right to education" as a "right to access": has every person on Belgian territory the same individual human right to access to all Belgian schools and educational institutions in the country, has a Chinese, a Japanese, an American, a Portuguese the same rights of access as the Belgian nationals themselves? Of course not. The fact that the beneficiaries of the right to education granted by the Convention are, so to say, every person on the earth, and the fact that the right is bestowed on all without distinction on any ground, must be taken seriously into consideration when deciding what the content of the "right to education" in the meaning of Article 2 (P1-2) really is. It goes almost without saying that this right cannot go further than to a freedom for the individual to choose the education he wants without interference by the State. That right belongs to everyone, and it is the same for everyone, regardless of country. This is a fundamental principle in the field of Human Rights.

That the right to education was meant as freedom of choice is also strongly upheld in the Preparatory Works. The right to education was from the very beginning listed as one of the three family rights (Preparatory work on Article 2 of the Protocol (P1-2), p. 5, document CDH (67) 2) and defined as "prior rights of parents to choose the kind of education to be given to their children". And through the whole of the Preparatory Works, in numerous places, the right to education - by all who took part - is mentioned as a right of choice for the parents, which should be secured as a basic fundamental freedom.

The Preparatory Works also clearly show that it was not in the mind of anyone that Article 2 (P1-2) should establish a positive claim against the State. On the contrary, the basic intention was to protect the individual against interference by the State. It is this which in my view is the reality to take into consideration when interpreting Article 2 (P1-2). We must not forget that Europe , at the time when the Convention was adopted, had just gone through years of suppression of the freedom of the peoples, where governments used all sorts of means and pressure to nazify the youth, especially through the schools and youth organisations. It was an important aim of the Convention that this should not be repeated and that the freedom of education should be protected. Frequently, throughout the Preparatory Works this point is stressed.

A "right of access" to the existing educational institutions of the member States is not dealt with by the Convention and is, within the meaning of the European Convention, not a human right at all. Nobody denies that everyone may have a right of access to the schools and teaching institutions in Belgium and the European countries in accordance with the laws of each country, but this is not a right laid down in the Convention. There is in fact no foundation for the majority ' s view that the right to education laid down in Article 2 (P1-2) would be meaningless if it did not imply the right to be educated in the national language. Imposing a negative obligation upon the State, Article 2 (P1-2) is important and has a full meaning.

Every human right granted by the Convention must be the same in all the contracting member States. The right to education must have exactly the same content in Belgium as in Norway or in Turkey and all the other States which have ratified the Convention. Within its limited field it is just the aim of the Convention to adopt the same European system. The majority opinion contravenes this basic aim of the Convention, when it is stated that the human right to education "by its very nature calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and of individuals". This shows that the majority view goes outside the scope of the Convention. The human rights granted are absolute rights, which cannot be the object of regulation by the separate States except where this is expressly stated in the Convention and under the conditions the Convention itself has laid down. In regard to the right to education the Convention has no such provision. It would also be a very dangerous road to embark upon if the articles of the Convention were to be interpreted in such a way as to allow the member States to regulate the human rights "according to the needs and resources of the community". Such an interpretation cannot be accepted. And even worse is the interpretation by the majority that the Convention "implies a just balance between the protection of the general interest of the community and the respect due to fundamental human rights". I strongly disagree with this interpretation. In my opinion it carries the Court into the very middle of the internal political questions of each Member State , which it has never been the intention that the Court should deal with.

Finally, I would like to indicate briefly some of the practical difficulties the majority interpretation leads to.

Shall everyone be secured the "right" of access to all the institutions of instruction in the member States, primary and secondary schools, universities, etc? What will happen to this individual right of access when there is not room for all? In many countries there are not even sufficient facilities for their own nationals. This shows that if it really had been the meaning to introduce a positive obligation on the Contracting Parties, there necessarily must have been adopted some rules of regulation and limitation. Further, these rules must have been the same for all Parties to the Convention. But such rules were not even discussed. The reason is simple. The scholastic system of the member States is the internal, national concern of each of them: it is entirely outside the scope of the Convention. It was also during the Preparatory Works expressly pointed out that the Convention should not affect the internal scholastic organisation of States. This case also shows how meaningless it would be if the European Court , referring only to Article 2 (P1-2) in its present form, should have competence to interfere with the organisation of the scholastic system of Belgium , which was adopted by the Belgian Parliament by a large majority of all groups of the country. The only question which can be reasonably discussed with regard to the Belgian laws is if they are so strict or so rigorous that they imply a denial of the free choice of education. But this has not even been claimed.

All this makes it, in my opinion, evidently clear that the positive interpretation adopted by the majority is not well grounded. The negative interpretation adopted by the Commission is both logical and consistent with the wording of Article 2 (P1-2).

Article 14 (art. 14) of the Convention

Article 14 (art. 14) cannot be applied in our case. That follows already from the fact that, in my opinion, there has been no denial of the right to education by the Belgian State . I have no objection to considering Article 14 (art. 14) as a part of each of the foregoing Articles of the Convention and the Articles of the Protocol. But that brings no new element into the discussion, it only makes it evidently clear that the human right dealt with in each Article shall be secured without discrimination for instance on the ground of language.

I also agree that the object of Article 2 and Article 14 (art. 14+P1-2) read in conjunction is to ensure that the right to education shall be secured by each Member State without discrimination on the ground of language. But still the question remains - what is the content of the right to education? In that respect I refer to what I have said in regard to the interpretation of Article 2 (P1-2).

The majority of the Court maintains that it is possible to visualise a measure which, while in itself in conformity with the requirements of a certain article of the Convention, nevertheless infringes the same article because it is of a discriminatory nature. In my opinion, this method of interpretation is both illogical and confusing. If a measure infringes a human right because it is of a discriminatory nature, the reason always will be that the measure in question is not in conformity with the Article, and in itself contains a violation. I shall not go into details on this point, I only want to state that I cannot see that the construction introduced by the majority in any way casts any light on the problem before us. The question will always be the same and only one: Is there a violation of a certain article of the Convention? But, in deciding this question the Court may have to decide if a discrimination has taken place. This is the simple solution of the relation between Article 14 (art. 14) and the other articles of the Convention.

Neither are the examples mentioned by the majority of the Court especially convincing. For instance, if a State takes discriminatory measures in laying down entrance requirements to educational establishments, this constitutes no violation of the Convention if a right of access to the educational establishment in question is not laid down as an individual right in the Convention (cf. Article 1) (art. 1). The same applies to the example regarding the application of Article 6 (art. 6) which the majority has cited.

The question if a discrimination has taken place must be decided on the concrete facts in every individual case. It is almost impossible to lay down general principles. The majority has, however, tried to do so, and that makes it necessary for me to make some observations.

In all our countries we speak about the principle of equality , which we maintain shall govern our legislation; and even if this principle is not expressly laid down in words in our Constitutions, we take it as a matter of fact that it exists and can be applied. It is also not infrequently referred to.

But if the principle of legality before the law is applied within the separate States, in the entire field of the national legislation, it goes without saying that it must be applied and even more strongly or more strictly with regard to Human Rights in the limited field of the European Convention. Human Rights are, and must be, the same for everyone, and if we allow derogation in this field, we very soon run the risk of destroying the guarantees which the Convention secures to the individual.

It is true that the competent national authorities are frequently confronted with situations and problems which call for different legal solutions. But this fact has no relevance when we are interpreting the content of the different concepts of Human Rights in the Convention. We cannot have different concepts of Human Rights in the different member States. That applies also to all the other concepts of the Convention. It applies to the concept of "discrimination" and even for instance to the concept of the legal standard "reasonable" in Article 5 (3) (art. 5-3). It follows that the concept of "discrimination" must be interpreted in the same way for all European States. We must find a "European" interpretation. It is for the Court after having interpreted the concept of discrimination in the Convention then to decide if in the concrete case a discrimination has taken place. This decision must be based on an evaluation of the facts and circumstances of each separate case. It is of little help in this context to refer to "the principles which normally prevail in democratic societies" or to "reasonable relationship of proportionality" between means and aims. The decisive factor must always be the content of the Human Right in question. This right everyone shall enjoy in full "without discrimination on any ground". For the evaluation of the question if in the concrete case a discrimination has taken place, no general rules can be laid down. In the field of Human Rights laid down in the Convention, in my opinion, it would in any case be wrong if the Court should embark upon a discussion of the needs and the resources of the different member States.

The only deviation from the Convention allowed is laid down in the Convention itself, and I think we should keep strictly within the field of these exceptions not generally laid down, but attached to each separate Article.

In regard to the interpretation of the second sentence of Article 2 of the Protocol (P1-2) and Article 8 (1) (art. 8-1) of the Convention, I agree with the majority opinion.

It follows from what I have said that I have come to the conclusion that in the case before us there is no violation by the Belgian State of any Human Right secured by the European Convention. The Belgian educational laws do not contravene the provisions of the Convention, and it is for me not necessary to embark upon a discussion of the details of the case, which in my view are of a more or less internal political character and fall within the exclusive sovereignty of the Belgian State .