The Differences That Make a Difference: Recent Developments on the Discrimination Grounds and the Margin of Appreciation Under Article 14 of the European Convention on Human Rights (ECHR)
(2014) 14 Human Rights Law Review 647-670
33 Pages Posted: 22 Nov 2015 Last revised: 17 Mar 2017
Date Written: December 18, 2013
Recent case law bears witness to a significantly increased attention to the discrimination grounds under Article 14 ECHR. This article suggests that an emerging trend that focuses on discrimination grounds related to persistent forms of stereotyping, prejudice and stigma, which results in social marginalisation, should be conceptualised under the heading of a ‘social-contextual approach’ to Article 14. It argues that this is a welcome development as it makes aspects of the substantive moral content of Article 14 more explicit than before and contributes to clarity and consistency in the case law. At the other end of the spectrum the case law seems to be preparing to take a more restrictive approach than before by excluding some discrimination grounds from the scope of protection of Article 14 altogether. It is suggested that this is unnecessary and ill-founded from the perspective of textual interpretation and consistency. It is also argued that if this line of development were allowed to continue, it would significantly lower the level of protection offered from the perspectives of formal and substantive equality alike.
Keywords: Non-discrimination; anti-discrimination law; equality; Article 14 European Convention on Human Rights
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