Discrimination as a Magnifying Lens: Scope and Ambit Under Article 14 and Protocol 12
Shaping Rights in the ECHR: The Role of the European Court of Human Rights in Determining the Scope of Human Rights (CUP 2013) 567-599
Posted: 1 Oct 2013
Date Written: 2013
The ambit doctrine has hitherto been somewhat neglected in the literature on Article 14 and this chapter endeavours to fill that gap. It begins by sketching the relationship between Article 14 and Protocol 12. The next section analyses the case law with a view to elaborating the details of the doctrine. Here, the key contribution is the identification of three distinct kinds of magnifying effect that Article 14 can have in relation to other Convention rights. To foster a keener understanding of the doctrine, a closer look is also be taken at the interpretative exercise behind the development of the ambit of Convention rights and the way in which the ambit can function as an early-warning mechanism that identifies pressing interests that might in future be interpreted as falling within the more narrowly defined scope of a particular Convention right. The chapter concludes the discussion by addressing the fact that the perceived difference in material scope between Article 14 and Protocol 12 is slowly diminishing in many important fields of protection, most notably in relation to social security benefits. While these developments at the first level of analysis may seem to open the ‘floodgates’ for wide-reaching non-discrimination claims in the socio-economic sphere, it is concluded that at the second level of analysis the margin of appreciation doctrine functions as a gatekeeper and maintains an appropriate balance in the case law.
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