Structure and Substance: Developing a Practical and Effective Prohibition on Discrimination under the European Convention on Human Rights

Abstract

Article 14 of the European Convention on Human Rights has not had any real measure of success. This may be explained in part by its lack of free-standing status and in part by the unwillingness of Convention bodies to give it full effect. All too common to European human rights jurisprudence is the Court's exercise of discretion to refrain from ruling on the discrimination claim when another substantive article has been breached. Common too is the failure to apply rigorously standards of interpretation which have rendered the article weak in terms of a substantive equality guarantee. Protocol 12 seeks to overcome these difficulties, by creating an equality guarantee with equal weight as other Convention rights. The Protocol is not likely to enter into force in the near future. In the meantime, the European Court of Human Rights appears to be making efforts to strengthen the Article 14 jurisprudence. First, the Court seems to be showing some increased willingness to deal with the discrimination claim. Second, the prohibited grounds have been extended, in terms that invite comment on the rationale for prohibited grounds. Third, a claim based on indirect discrimination has finally succeeded. Each of these disparate developments, taken together, signal attempts on the part of the Court to take Article 14 seriously. It is suggested that these attempts, while important, lack principled reasoning, and that domestic courts should take seriously the task of supplying principles on which the Court can rely for guidance.