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.