Some interesting new articles worth reading on the European Court of Human Rights have been published in past couple of months. Here are three of them :
- Lourdes Peroni, Religion and culture in the discourse of the European Court of Human Rights: the risks of stereotyping and naturalising, International Journal of Law in Context, Volume 10, Issue 02, June 2014, pp 195-221. Here is the abstract :
This paper critically examines the ways in which the European Court of Human Rights represents applicants’ religious and cultural practices in its legal discourse. Borrowing tools from critical discourse analysis and incorporating insights from the anti-essentialist critique, the paper suggests that the Court has most problematically depicted the practices of Muslim women, Sikhs and Roma Gypsies. The analysis reveals that, by means of a reifying language, the Court oftentimes equates these groups’ practices with negative stereotypes or posits them as the group’s ‘paradigmatic’ practice / way of life. The thrust of the argument is that these sorts of representation are problematic because of the exclusionary and inegalitarian dangers they carry both for the applicants and for their groups. In negatively stereotyping applicants’ practices and in privileging certain group practices over others, these types of assessment underestimate what is at stake for the applicants and potentially exclude them from protection. Moreover, these types of reasoning risk sustaining hierarchies across and within groups. The paper concludes by sketching out an approach capable of mitigating stereotyping and essentialising risks.
- María José Añón, The Antidiscrimination Principle and the Determination of Disadvantage, Dignitas – Slovene Journal of Human Rights, 2013, no. 59-60, pp 196-214. Here is the abstract :
This paper examines some of the limits of antidiscrimination law in its present form, focusing on the major trends that underlie it from the perspective of legislation and case law. It reflects on the traditional principles of interpretation and the impediments to incorporating standards offering both justification and explanation in the test of equality; standards that might detect the patterns or social structures of discrimination and identify individuals with greater accuracy. To this end, it proposes to further develop the debate on indirect discrimination and material equality through additional interpretative criteria that originate in categories such as structural discrimination and the intersectionality of discrimination.
- Ed Bates, Analysing the Prisoner Voting Saga and the British Challenge to Strasbourg, Human Rights Law Review (2014)14 (3): 503-540. Here is the abstract :
This article examines the development of the prisoner voting saga concerning the UK and Strasbourg, setting it in the context of the strained relationship existing between the former and the latter in recent years. It examines and offers a critique of the relevant Strasbourg jurisprudence, commencing with the Grand Chamber judgment in Hirst v United Kingdom (No 2). It discusses the ‘brinkmanship’ that ensued between Strasbourg and the UK as regards the enforcement of that judgment, and how Strasbourg responded via a further Grand Chamber judgment (Scoppola v Italy (No 3)). The reaction to that judgment is contextualised by a detailed examination of why the relationship between the UK and Strasbourg has been a difficult one recently, at least from the former’s perspective. These issues are then reflected upon in a final section.