Toward an Anti-Stereotyping Approach for the European Court of Human Rights

Abstract

The central tenet of this article is that stereotypes are both cause and manifestation of the structural disadvantage and discrimination of certain groups of people. Focusing on the gender case law of the European Court of Human Rights, this article explores what conception of equality the Court should embrace to adequately address the harmfulness of stereotypes. Since stereotypes are often the mechanisms that underlie discrimination, this article advances an antistereotyping approach that the Court could employ in its rulings. The proposed analysis consists of two phases: 'naming' and 'contesting' stereotypes. The whole argument is illustrated by Konstantin Markin v Russia and Rantsev v Cyprus and Russia, two recent cases in the area of gender equality.

Poverty as Misrecognition: What Role for Anti-Discrimination Law in Europe?

“…Indeed, stereotypes are both a cause and manifestation of the structural disadvantage and discrimination affecting certain groups, including the poor and undereducated. 155 In the 2012 United Nation guiding principles on Extreme Poverty and Human Rights, the Special Rapporteur on Extreme Poverty and Human Rights, Magdalena Sepúlveda Carmona, underlined the following risk: 'Persons experiencing extreme poverty live in a vicious cycle of powerlessness, stigmatization, discrimination, exclusion and material deprivation, which all mutually reinforce one another […] Although persons living in extreme poverty cannot simply be reduced to a list of vulnerable groups, discrimination and exclusion are among the major causes and consequences of poverty'. 156 That vicious cycle exists not only for people living in extreme poverty but more broadly for all socioeconomically underprivileged people.…”

“…190 As a consequence, it is essential for the ECtHR to recognise and address stereotyping as a structural cause of discrimination against all vulnerable groups, including the poor and undereducated. 191 Discrimination against migrants is rarely dealt with by the courts, 192 and when it is, the argument is usually dismissed since immigration law by definition gives rise to differences in treatment. Moreover, states have a wide margin of appreciation in this field.…”

Perpetuating Anti-Muslim Discrimination through the Interpretation of Religious Equality in the European Court of Human Rights

“…For this reason, it has been suggested that the Court should systematically identify and counter the stereotypical justifications put forward by states in order to circumvent their Convention obligations, rejecting those that lack sufficient factual basis. 45 Instead of this, Strasbourg judges have often incorporated them into their own reasoning, indirectly ratifying their validity. The paradoxical result has been to invoke the putative chasm between Islam and human rights in order to restrict the human rights of Muslims.…”

Self respect—A “Rawlsian Primary Good” unprotected by the European Convention on Human Rights and its lack of a coherent approach to stigmatization?

“…However, it is important to note that when the ECtHR has acted to prevent stereotyping it has done so under the guise of Article 14, i.e. treating it as a form of discrimination (Timmer, 2011). This means that the same principal applies to the court's approach to stereotyping as it does to discrimination in general.…”