Due diligence can, consequently, be understood as a way of conduct.<fnref n="921" /> States have a positive obligation towards individuals living on their territory<fnref n="922" /> through an obligation of a duty of care and a duty not to harm.<fnref n="923" /> Hence, States must adopt measures to protect individuals under their jurisdiction from harm. The application of due diligence occurs when the State has elements to reasonably foresee the violations of core rights, and it has the capacity to interfere.<fnref n="924" />

Due diligence varies according to the individual protected and the foreseeability of damages.<fnref n="925" /> Thus, in the case of minority groups, it limits analysis of this concept of due diligence, and regional courts, to see whether they adequately identify, and address the source of discriminatory practices and legislation faced by minority groups.

This analysis is conducted across three chapters. Chapter 7 starts with the legal approach of India towards IHRL. Chapter 8 then goes on to analyse how intersectionality and due diligence are used in the ECtHR. Chapter 9 highlights discriminatory practices and legislation under the IACtHR.

<footnote n="921">⁹²¹ Samantha Besson, *La Due Diligence En Droit International*, vol 46 (Brill Nijhoff 2021).</footnote>

<footnote n="922">⁹²² Velasquez Rodriguez v Honduras (n 204) para 172; Opuz v Turkey [2009] ECtHR 33401/02 [129–130]; Talpis v Italy [2017] ECtHR 41237/14 [98–99; 129]. To see more on State obligations see Part 1 – Chapter 2.</footnote>

<footnote n="923">⁹²³ Samantha Besson, ‘Due Diligence and Extraterritorial Human Rights Obligations - Mind the Gap!’ (2020) 9 ESIL Reflections 1, 4.</footnote>

<footnote n="924">⁹²⁴ ibid 5.</footnote>

<footnote n="925">⁹²⁵ Currently, due diligence is used in the field of business and human rights law thanks to the triangular constitution of this concept that involves the State, the individual, and a third party as the cause of the harm (often firms).</footnote>
**Chapter 6. India and regional systems**

Today, several States like the U.S. or Canada are not part of a human rights regional
system either by choice, or due to the absence of regional institutions. India is one of them.

Asia has two organisations: (i) the Association of Southeast Asian Nations (ASEAN); and (ii) the South Asian Association for Regional Cooperation (SAARC). On one hand, the ASEAN, created in 1967, demonstrates a lower level of commitment towards human rights. The association is known for the “ASEAN Way”, a cooperation emphasising on non-interference in State affairs and the promotion of Asian values.<fnref n="926" /> With this approach, member States have argued the occidental concept of human rights, the importance of human rights to respect cultural differences and the equal importance of civil and political rights, and the economy. In fact, just like the Arab’s League, the concept of humans rights was not found in official declarations until 2003, and the ASEAN Charter adoption was strongly critised for its non-consistent with international standards.<fnref n="927" /> In 2007 the elaboration of the ASEAN Charter, a legally binding document, refers explicitly to the promotion and protection of human rights, and previously two declarations related to the protection of women and children, and on the elimination against violence towards women. Despite the establishment of legal documents related to human rights and the ASEAN Intergovernmental Commission on Human Rights (AICHR), the Association sees human rights as a field of dialogue between States rather than implementing itself as a regional mechanism just like the ECtHR, the IACtHR and the African system. The AICHR does not constitute a veritable regional mechanism it misses strong instruments to identify and punish human rights violations, yet it remains the only existing regional organ of human rights protection in Asia.<fnref n="928" /> On the other hand, SAARC, established in 1985, primarily emphasized non-controversial elements in its Charter. It upheld the principle of non-interference and deliberately excluded contentious matters. Consequently, this approach

<footnote n="926">⁹²⁶ Shaun Narine, 'Asia, ASEAN and the Question of Sovereignty: The Persistence of Non-Intervention in the Asia-Pacific' in Mark Beeson and Richard Stubbs (eds), *Routledge Handbook of Asian Regionalism* (Routledge 2011).</footnote>

<footnote n="927">⁹²⁷ ‘UN Official Welcomes ASEAN Commitment to Human Rights, but Concerned over Declaration Wording | UN News’ (UN News, 19 November 2012); Tanja A Börzel and Vera van Hüllen (eds), *Governance Transfer by Regional Organizations: Patching Together a Global Script* (2015th edn, Palgrave Macmillan 2015) 109.</footnote>

<footnote n="928">⁹²⁸ Anja Jetschke, 'L'ASEAN, Les Réfugiés Birmans et Les Droits de l'homme' (2017) Été Politique étrangère 67.</footnote>
hinders any significant involvement in civil and political rights and precludes its role as a human rights arbiter.<fnref n="929" /> Nevertheless, SAARC has demonstrated a commitment to increase regional awareness regarding poverty, child rights and healthcare through initiatives such as the Convention on Preventing and Combating Trafficking in Women and Children for Prostitution (2002), the Convention on Regional Arrangements for the Promotion of Child Welfare in South Asia (2002).

India is not one of the ten ASEAN State Members while SAARC (1985), despite its human rights concerns from the angle of dignity, is not equipped with a human rights regional system. Hence, with no higher judicial institutions, the Indian SC is the last resort for Indians citizens to receive justice. The country has not accepted the different Option Protocols of the UN Conventions, thus preventing Indians from approaching the treaty bodies.

However, in a world where regional systems influence each other, where UN treaty bodies refer to national jurisdiction and regional systems, States outside any regional systems are still influenced by the evolution of IHRL. Despite India's current position towards minority groups, the country is nevertheless affected by current IHRL approaches to the question.

The influence of international human rights rulings and intellectuals to the subject help to understand the Indian situation. Both factors colour its relationship with human rights. In particular, the effect of international conventions and the specific role of regional systems in the SC rulings, need attention.

# 1. Public Interest Litigation

Two core systems exist today despite application challenges: constitutional law and IHRL. The correlation between these two leading structures relies on the integration of human rights principles within the Constitution. In India, although human rights violation, and the

<footnote n="929">⁹²⁹ ‘Regional Human Rights Mechanisms in South Asia: Past Efforts and Ways Forward’ (FORUM-ASIA 2021) 27.</footnote>
judiciary's role towards minority groups discrimination, are an issue, the country remains strongly linked to IHRL. Over the years it has developed an indigenous jurisprudence and a human rights tradition. Indian sensitivity to contemporary international development is striking. The Constitution not only establishes human rights goals in its Preamble,<fnref n="930" /> but in form and content, holds a strong similarity to an international convention: the UDHR.<fnref n="931" /> For instance, in Article 2 of the UDHR the expression "other status" identical to the twin Covenant, refers to a non-exhaustive list of protected characteristics. This non-exhaustive approach can be found in the Indian Constitution. Justice Khanna argued in his non-validated dissent, in the case *ADM Jabalpur v. Shivakant Shukla* (1976),<fnref n="932" /> that the Constitution does not contain an exhaustive list of human rights.

Throughout its jurisprudence, the SC has played an active role in the integration of human rights in India's domestic legal structure, but also within the jurisprudence of its neighbouring countries. Pakistan, Sri Lanka, Bangladesh and Nepal quote SC's ruling in their public interest litigation (PIL) jurisprudence.<fnref n="933" /> Known for its judicial activism, the SC was also a key actor in respecting international human rights norms.<fnref n="934" /> Three periods can be distinguished: (i) the 1970s-1980s under Justice Bhagwati and Krishna Iyer; (ii) 1990s onwards; and (iii) 21st century.

India's pro-active approach to human rights started mainly after the emergency period (1975-1977). Lawyers often argue that with a strong government, the judiciary is weak, whereas, with a weak government, the judiciary can be strong again.<fnref n="935" /> During the emergency,

<footnote n="930">⁹³⁰ Leela Simon and Chiranjivi J Nirmal, 'Fundamental Rights: The Constitutional Context of Human Rights' in Chiranjivi J Nirmal (ed), *Human Rights in India: Historical, Social and political perspective* (OUP 2000) 43.</footnote>

<footnote n="931">⁹³¹ Chandra Khare Subhas, *Human Rights and United Nations* (Metropolitan Book Company 1977) 195–197.</footnote>

<footnote n="932">⁹³² *ADM Jabalpur v Shivakant Shukla* [1976] SC of India (1976) 2 SCC 521.</footnote>

<footnote n="933">⁹³³ Jona Razzaque, 'Linking Human Rights, Development, and Environment: Experiences from Litigation in South Asia' (2007) 18 Fordham Envtl. L. Rev. 587.</footnote>

<footnote n="934">⁹³⁴ SV Adithya Vidyasagar and Siddharth Tatiya, 'The European Court of Human Rights and India: A Study Contrasting Their Retrospective Approaches Towards Human Rights Issues' (2010) 11 Asia-Pac. J. Hum. Rights Law 31, 50.</footnote>

<footnote n="935">⁹³⁵ Interview with Advocate Hedge (n 433); Interview with Advocate Avi Singh (12 October 2022), New Delhi (India), criminal lawyer.</footnote>
the Indian judiciary was seen as largely complicit with the government. In the infamous case, *ADM Jabalpur* (1976),<fnref n="936" /> the SC held that the right to life was a gift of the Constitution, its suspension from the Constitution, implied it did not exist. This case undermined the SC's credibility, and the Court was accused of collaborating with the Union Government to destroy civil liberties. Strong criticism of the Indian judiciary, led Justice Bhagwati, who was part of the bench in *ADM Jabalpur*, to introduce PIL. The SC tried to redress the absence of government policies towards social justice through PIL, positioned itself as a sort of referee on controversial questions which divided society, like reservations of seats for backwards classes in educational institutions, and democratised access to the judiciary. PIL thus, restored legitimacy to the judiciary.

In the first phase (1970s-80s), PIL, focused only on constitutional litigation, under which human rights violations fall, gained importance with increasing judicial activism within the SC and High Courts. PIL along with activism, drew attention to the SC as a significant actor in India and around the globe.<fnref n="937" /> Indeed, in the 1980s, the Indian judiciary rethought judicial interpretation by considering constitutional rights and social justice, mainly through the affirmation and expansion of fundamental rights.<fnref n="938" /> During this phase, cases related mostly to disadvantaged groups rights<fnref n="939" /> like child labour, prisoners or women. In addition, the SC interpreted fundamental human rights such as the right to life more expansively. In *Frances Mulin* (1981), the Court argued that at its heart lay the right to live with human dignity,<fnref n="940" /> and in the *Morcha* case (1983) it highlighted the constitutional element underpinning this right.<fnref n="941" />

<footnote n="936">⁹³⁶ *Additional District Magistrate, Jabalpur v Shivkant Shukla* [1976] SC of India AIR 1976 SC 1207.</footnote>

<footnote n="937">⁹³⁷ Upendra Baxi, 'Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India' (1985) 4 Third World Legal Studies 107, 115.</footnote>

<footnote n="938">⁹³⁸ Jeremy Cooper, 'Poverty and Constitutional Justice: The Indian Experience' (1993) 44 Mercer Law Review 611, 616.</footnote>

<footnote n="939">⁹³⁹ Surya Deva, 'Constitutional Courts as “Positive Legislators”: The Indian Experience' [2010] The Indian Experience.</footnote>

<footnote n="940">⁹⁴⁰ *Frances Mullin v Union Territory of Delhi* [1981] SC of India 1981 AIR 746.</footnote>

<footnote n="941">⁹⁴¹ *Bandhua Mukti Morcha v Union of India* [1983] SC of India 1984 AIR 802.</footnote>
In the second phase (1990s onwards), not only did petitioners target the executive and legislative branch<fnref n="942" /> privately and individually, but the SC went even further in what was considered a bolder posture.<fnref n="943" /> It pointed out legislative gaps,<fnref n="944" /> and extended the protection of fundamental rights to non-state actors. PIL cases related to the right to education,<fnref n="945" /> sexual harassment at workplace,<fnref n="946" /> rule of law, and corruption within administration.<fnref n="947" /> The judiciary was reminding the government of its constitutional obligations and its duty to initiate legislative reforms.<fnref n="948" /> It is during this second period that international human rights norms made their presence felt.

During the PIL's third phase, more individuals were able to file them. Through PIL access to justice became easier, henceforth disadvantaged groups could approach the system. This was perceived as positive in the 1970s. Yet, PIL rapidly became a tool to advocate specific causes, rather than register cases. Any individual could file a PIL, even based on a newspaper report. No direct link was necessary. This led to a backlash against PIL with judges taking a conservative stance. The judiciary manifested restraint by making measured use of PIL, and simply referring questions to the government.<fnref n="949" /> However, the number of PILs did not decrease, even if more PILs were dismissed and active judicial involvement decreased.<fnref n="950" /> Indeed, PILs can be perceived as a failure of the judicial system, failure to accept evidence, but more importantly, a failure of Courts.<fnref n="951" />

<footnote n="942">⁹⁴² *Delhi Science Forum v Union of India* [1996] SC of India 2 SCC 405 (related to the constitutional validity of economic policies).</footnote>

<footnote n="943">⁹⁴³ Surya Deva, ‘Public Interest Litigation in India: A Critical Review’ (2009) 28 19, 28.</footnote>

<footnote n="944">⁹⁴⁴ *Vishaka v State of Rajasthan* [1997] SC of India AIR 1997 SC 3011; *Basu v State of West Bengal* [1996] SC of India AIR 1997 SC 610.</footnote>

<footnote n="945">⁹⁴⁵ *Unni Krishnan v State of Andhra Pradesh* [1993] SC of India 1993 AIR 2178; *Miss Mohini Jain v State of Karnataka* [1992] SC of India 1992 AIR 1858.</footnote>

<footnote n="946">⁹⁴⁶ *Vishaka v State of Rajasthan* (n 954).</footnote>

<footnote n="947">⁹⁴⁷ Vidyasagar and Tatiya (n 944) 44.</footnote>

<footnote n="948">⁹⁴⁸ Deva, ‘Constitutional Courts as “Positive Legislators”: The Indian Experience’ (n 949) 32.</footnote>

<footnote n="949">⁹⁴⁹ Prashant Bhushan, ‘Supreme Court and PIL: Changing Perspectives under Liberalisation’ (2004) 39 EPW 1770, 1774.</footnote>

<footnote n="950">⁹⁵⁰ Interview with Advocate Hedge (n 433).</footnote>

<footnote n="951">⁹⁵¹ Interview with Advocate Singh (n 944).</footnote>
## 2. Let good thoughts come to us from all sides

Reference to IHRL can be found in SC jurisprudence. These jurisprudences are not binding but according to advocate Hedge, are used in a persuasive way.<fnref n="952" />

During the 1990s, the SC began referring to international conventions in its jurisprudence.

In the landmark case on sexual harassment in the workplace, *Vishaka v. State of Rajasthan*, it applied the Convention on the Elimination of All Forms of Discrimination against Women (ICEDAW) guidelines and norms.<fnref n="953" /> In 1997, there was no national law against sexual harassment and abuses, or for protection of gender equality. The lack of protection by domestic laws led the judiciary to consider international human rights norms. This usage highlighted the purpose of IHRL, which is to provide guidelines and directions to States and therefore the judiciary, not only imposing its obligations but influencing them to address then legal shortcomings. In fact, in cases related to discrimination against women, the SC often refers to the ICEDAW. In *Githa Hariharan* (1999), the Court recalled the necessity for the judiciary to consider international conventions and norms when interpreting national laws when there is no incoherence between the two.<fnref n="954" /> Earlier, in *Madhu Kishwar* (1996), the Court had highlighted State's obligation to enforce ICEDAW provisions, affirming that discrimination against women violates the principles of equal rights and human dignity.<fnref n="955" /> In other cases, like *Anuj Garg* (2007), the SC referred to previous rulings that mentioned international conventions like the ICEDAW,<fnref n="956" /> the ICCPR,<fnref n="957" /> the UDHR,<fnref n="958" /> or the International Labour Organization Preamble, in order to highlight women's rights. Judges also used these conventions to interpret the Constitution. In *P.G Gupta* (1995), Articles 19§1-e and 21 of the Constitution are read in

<footnote n="952">⁹⁵² Interview with Advocate Hegde (n 728).</footnote>

<footnote n="953">⁹⁵³ *Vishaka v State of Rajasthan* (n 954).</footnote>

<footnote n="954">⁹⁵⁴ Ms Githa Hariharan v Reserve Bank of India [1999] SC of India [1999] 236 ITR 380.</footnote>

<footnote n="955">⁹⁵⁵ *Madhu Kishwar v State of Bihar* [1996] SC of India 1996 AIR 1864 [23].</footnote>

<footnote n="956">⁹⁵⁶ *Anuj Garg v Hotel Association of India* [2007] SC of India (2008) 3 SCC 1 [10].</footnote>

<footnote n="957">⁹⁵⁷ ibid 7.</footnote>

<footnote n="958">⁹⁵⁸ ibid 12.</footnote>
conjunction with the ICESCR.<fnref n="959" /> The three judges argue that it is the State’s duty to build houses at reasonable cost and make them accessible to individuals with low income.

While the SC readily refers to international conventions, it mentions UN treaties jurisprudence less frequently. For instance, in *Aparna* (2021)<fnref n="960" /> the SC quotes the CEDAW, *V.K. v. Bulgaria* (2008)<fnref n="961" /> and *Karen Tayah Vertido v. The Philippines* (2010)<fnref n="962" /> cases. However, two possible explanations are: (i) treaty bodies are perceived as operating on another level, they are not seen as adjudicatory, but more as statecraft;<fnref n="963" /> (ii) the absence of judges and lawyers in the UN treaty committee.<fnref n="964" /> The SC seems to prefer indicating regional systems approach and jurisprudence. In cases related to discrimination, SC practice is not regular, yet it exists. Therefore, the approach to SC cases, will take up a broad range of cases.

The SC uses regional and national jurisprudence, and sometimes observations by UN treaty bodies to highlight practices in other systems. In the *Anuj* case (2007), it uses ECtHR rulings to underline how gender equality is recognised in other systems,<fnref n="965" /> and it tries to understand the ECtHR approach on the doctrine of proportionality and incompatibility to see its utility for Indian judges.<fnref n="966" /> In *Anuj*, the Court mentions the U.S SC with *Frontiero v. Richardson*,<fnref n="967" /> *United States v. Virginia*,<fnref n="968" /> and dissident opinions of judges with Justice Marshall in the *Dothard* case,<fnref n="969" /> and the South African Constitutional Court with the *Bhe* case (2004).<fnref n="970" /> The *Anuj* case is not unique. In *Munichikkanna* (2007) on adversarial possession, the SC referred to the ECHR’s interpretation of Article 1 of Protocol 1. In the landmark case *Nitisha v. Union of*

<footnote n="959">⁹⁵⁹ Shri P G Gupta v State of Gujrat [1994] SC of India (1995) 2 SCC 182.</footnote>

<footnote n="960">⁹⁶⁰ Aparna Bhat v The State Of Madhya Pradesh [2021] SC of India 2021 SCC OnLine SC 230.</footnote>

<footnote n="961">⁹⁶¹ ibid 36; VK v Bulgaria [2008] CEDAW CEDAW/C/49/D/20/2008.</footnote>

<footnote n="962">⁹⁶² Aparna Bhat v The State Of Madhya Pradesh (n 970) para 37; Karen Tayah Vertido v The Philippines [2010] CEDAW CEDAW/C/46/D/18/2008.</footnote>

<footnote n="963">⁹⁶³ Interview with Advocate Hegde (n 728).</footnote>

<footnote n="964">⁹⁶⁴ Interview with Advocate Grover (n 785).</footnote>

<footnote n="965">⁹⁶⁵ Abdulaziz, Cabales and Balkandali v United Kingdom [1985] ECtHR 9214/80; 9473/81; 9474/81; Van Raalte (n 162); Schuler-Zgraggen v Switzerland [1993] ECtHR 14518/89; Petrovic v Austria [1998] ECtHR 20458/92.</footnote>

<footnote n="966">⁹⁶⁶ Anuj Garg v Hotel Association of India (n 966) para 47.</footnote>

<footnote n="967">⁹⁶⁷ Frontiero v Richardson [1973] SC of the US 411 U.S.677.</footnote>

<footnote n="968">⁹⁶⁸ United States v Virginia [1996] SC of the US 518 U.S. 515.</footnote>

<footnote n="969">⁹⁶⁹ Dothard v Rawlinson [1977] SC of the US 433 U.S. 321.</footnote>

<footnote n="970">⁹⁷⁰ Bhe v The Magistrate, Khayelisha [2004] South African Constitutional Court (2004) 18 BHRC 52.</footnote>
*India* (2021), which for the first time recognised indirect and systemic discrimination, reference is made to the *Oršuš* case related to discrimination of Roma children.<fnref n="971" /> The SC does not restrain itself to the European regional system, but refers equally to the Inter-American Commission on Human Rights (IACmHR). In *Aparna* (2021), whilst trying to understand the concept of judicial stereotyping, the SC mentions the definition used by the Commission.<fnref n="972" /> Previously, in *Justice K.S. Puttaswamy* (2017), the SC refers to the IACtHR case of *Artavia Murillo* (2012) to understand the right to private life.<fnref n="973" />

References to IHRL are not confined to the SC, but made by all High Courts.<fnref n="974" /> In a recent Uttaranchal High Court case, the Court mentioned the European and Inter-American human rights system (IAHRS), most specifically individuals’ complaints mechanisms, not jurisprudence.<fnref n="975" /> However, at know points does the Indian legal system mention the African human rights system composed of the African Commission and African Court. Yet, this system could influence positively the Indian legal system. In comparison to the jurisprudence of other regional system, the particularity of the African system is rooted in the initial provisions of the African Charter on Human and Peoples’ Rights and this particularity has become more pronounced from 2013 onwards with some bold and in-depth analyses.<fnref n="976" />

<footnote n="971">⁹⁷¹ *Nitisha v Union of India* [2021] SC of India WP (C) No 1109/2020 [68]; Vandita Khanna, ‘Indirect Discrimination and Substantive Equality in Nitisha: Easier Said than Done under Indian Constitutional Jurisprudence’ (2022) 22 Int. J. Discrim. Law. 74; Dhruva Gandhi, ‘Nitisha v. Union of India: Furthering A Discussion on Discriminatory Intent’ (2021) 14 NUJS Law Review 1; *Oršuš v Croatia* (n 177).</footnote>

<footnote n="972">⁹⁷² *Aparna Bhat v The State Of Madhya Pradesh* (n 970) para 34.</footnote>

<footnote n="973">⁹⁷³ *Justice KS Puttaswamy (Retd) v Union of India* [2017] SC of India WP(C) No. 494 OF 2012; *Artavia Murillo et al (In Vitro Fertilization) v Costa Rica* [2012] IACtHR Preliminary Objections, Merits, Reparations, and Costs, Series C, No. 257.</footnote>

<footnote n="974">⁹⁷⁴ Interview with Advocate Grover (n 785).</footnote>

<footnote n="975">⁹⁷⁵ *Dr Vijay Verma v Union of India* [2018] Uttaranchal High Court WP (PIL) No. 17 of 2018.</footnote>

<footnote n="976">⁹⁷⁶ Article 7 of the *Protocole de Ouagadougou* confirms that the African Court shall apply the provisions of the Charter and any other relevant human rights instrument ratified by the State concerned. The African system is thus an open system, which considers the existence of previous practice of normativity in international law, in which the African system is called upon to take into account in interpreting and applying the Charter. Alexander B Makulilo, ‘Tanganyika Law Society and the Legal and Human Rights Centre V. Tanzania and Rev. Christopher R. Mtikila V. Tanzania (Afr. CT. H.R.)’ (2013) 52 International Legal Materials 1327; Abdou-Khadre Diop, ‘L’influence de La Jurisprudence Européenne Sur Le Système Africain de Protection Des Droits de l’homme’ (2020) 1 RQDI 593, 596–597.</footnote>
**3. Conclusion**

In India, fundamental rights have been integrated in the Constitution since its adoption. The same document established an independent judiciary. Judges are not limited to interpreting national laws or the Constitution, but have a duty to give meaning to legislations.<fnref n="977" /> In its landmark cases on fundamental rights, the SC has shown the scope of positive judicial activism through PIL.

Over the years, the judiciary has incorporated IHRL, and jurisprudence related to these rights, whether from national courts or regional systems. Whilst criticism has been voiced regarding the SC's silence on specific topics such as the CAA, its evocation of international law has remained consistent since 2015. International human rights jurisprudence retains relevance in the Indian judiciary whether at the SC level or High Courts. Legal scholars, whether Indian or not, are regularly quoted on specific subjects like discrimination. In fact, India's record in PIL cases and its relation to international jurisprudence, highlights the fluidity in the field of jurisprudence, where national and regional boundaries are not limits to judicial reasoning and decision. This element is accentuated by constant reference to works of legal scholars like Littleton (sexual equality),<fnref n="978" /> Tarunabh Khaitan (discrimination against LGBTQ)<fnref n="979" /> or Sandra Fredman (accountability in the Constitution).<fnref n="980" />

Although India has ratified the core human rights conventions, in its own jurisprudence it shows preference for ECtHR or IAHRS jurisprudence, rather than the UN treaty body. This practice confirms Koh's explanation that internalization of international law takes place through the "three I's": interaction, interpretation and internalization.<fnref n="981" /> This approach invites analysis of regional systems' understanding of discrimination faced by minority groups.

<footnote n="977">⁹⁷⁷ Sanjay S Bang, 'Judicial Review of Legislative Actions: A Tool to Balance the Supremacy of the Constitution' in Lancy Lobo and Jayesh Shah (eds), *Democracy in India: Current debates and emerging challenges* (Replika Press Pvt Ltd 2017) 121.</footnote>

<footnote n="978">⁹⁷⁸ *Anuj Garg v Hotel Association of India* (n 966) para 46.</footnote>

<footnote n="979">⁹⁷⁹ *Navtej Singh Johar v Union of India* (n 551) para 107.</footnote>

<footnote n="980">⁹⁸⁰ In Re: Distribution Of Essential v Unknown [2021] SC of India WP (Civil) No.3 of 2021 [3]; Farhan v State [2022] Delhi High Court WP (C) 284/2015 (sexual violence).</footnote>

<footnote n="981">⁹⁸¹ Naiade el-Khoury, *Transnational Legal Process: Theory and the Effectiveness of International Human Rights Treaties* (Brill Nijhoff 2020) 191.</footnote>
**Chapter 7. The European Court of Human Rights and the prism of intersectional discrimination**

At the European level, two systems exist: the EU, a political organ, and the Council of Europe that defends human rights in Europe. The Council of Europe level, has two bodies to protect human rights: (i) the ECtHR (1959) whose mission is to promote and protect democracy through human rights; and (ii) the Advisory Committee to the Framework Convention for the Protection of National Minorities (Framework Convention) adopted in 1994, which protects minorities through the establishment of States obligations rather than individual rights.<fnref n="982" /> These two institutions produce a fragmentation of human rights within the Council.<fnref n="983" /> The creation of the Framework Convention stressed the necessity for the regional human rights system to respect general international conventions, and protect specific individuals and groups considered vulnerable and requiring stronger protection.<fnref n="984" /> Even though it is the first legal binding instrument at the international and regional level to protect national minorities, it's effectiveness is limited as Article 14 does not define the concept of “national minority”.<fnref n="985" />

The birth of the Framework Convention signalled the ECHR's (1953) inability to fully protect minority rights. Unlike Article 27 of the ICCPR it does not contain provisions relating to minority rights. The only reference is found in Article 14 on the right to non-discrimination, where it establishes grounds of possible discrimination such as sex and race in “association with a national minority”.<fnref n="986" />

<footnote n="982">⁹⁸² M Magdalena Sepúlveda Carmona and others, *Human Rights Reference Handbook* (University for Peace 2004) 142.</footnote>

<footnote n="983">⁹⁸³ Stephanie E Berry, ‘Democracy and the Preservation of Minority Identity: Fragmentation within the European Human Rights Framework’ (2017) 24 Int. J. Minor 205, 205.</footnote>

<footnote n="984">⁹⁸⁴ Ludovic Hennebel and Helene Tigroudja, *Traité* (n 149) 96.</footnote>

<footnote n="985">⁹⁸⁵ ‘Framework Convention For The Protection Of National Minorities And Explanatory Report’ (Council of Europe 1995) para 12. “It should also be pointed out that the Framework Convention contains no definition of the notion of ‘national minority’. It was decided to adopt a pragmatic approach, based on the recognition that at this stage, it is impossible to arrive at a definition capable of mustering the general support of all Council of Europe member States.”</footnote>

<footnote n="986">⁹⁸⁶ Contrary to Articles 2§1 of the ICCPR, Article 1 of the ACHR or Article 2 of the African Charter on Human and Peoples' Rights this article covers nationality minority. Article 3 of the African Charter uses the term “ethnic group”, thus limiting the scope of minority to a certain group.</footnote>
Analysing the ECHR's approach to minority groups under Article 14 invites two specific interrogations. The first examines how the Court protects minority groups against discrimination. The second probes how it tries to recognise discriminations they face in society through the concept of marginality and vulnerability, and the links with States responsibility.

# 1. Article 14 of the European Convention of Human Rights: the prohibition of discrimination

The ECHR and the ECtHR protect individuals' rights within member States by establishing a corpus of international human rights. Despite its fundamental importance within the European region, the ECHR does not contain minority rights provisions. Their absence prompted the ECtHR to fill this legal black hole. In *Denizci* (2001), member States were enjoined to enforce "international standards in the field of protection of human and minority rights".<fnref n="987" /> Despite this clarification by the Court, the absence of clear rights for minorities seems to have prevented minority groups from claiming a violation of minority rights directly before the Court.

## 1.1. The role of “Cinderella” in protecting minority groups

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.<fnref n="988" />

<footnote n="987">⁹⁸⁷ *Denizci v Cyprus* [2001] ECtHR 25316/94; 25317/94; 25318/94; 25319/94; 25320/94; 25321/94; 27207/95 [410].</footnote>

<footnote n="988">⁹⁸⁸ Article 14 European Convention on Human Rights 1950.</footnote>
1.1.1. *A general perspective*

Discrimination and social exclusion faced by Roma populations triggered policies of protection of minority groups through the angle of non-discrimination enshrined in Article 14 of the ECHR.<fnref n="989" /> This approach to the concept of minority may be explained by the well-established theory of non-discrimination within international law.

Scholars have argued that there is a striking absence of definition on the concept of minority. More significantly, restricted limitations of categories such as ethnic, religious, or linguistic groups have led to perverse results.<fnref n="990" /> Yet, it is important to underline that in cases of discrimination towards minority groups at the level of the ECtHR, such classification seems at first sight to increase States’ obligation towards these groups. The lack of a clear definition of minority groups, or provisions within the Convention does not prevent minorities from qualifying as victims of ECHR’s obligation violations.

Article 14 of the ECHR clearly provides that no individual should suffer from discrimination. Consequently, it enforces a duty on States to not discriminate. Contrary to Article 26 of the ICCPR, Article 14 can only be used before the Court, in association with another article of the Convention. Hence, it is often perceived as a parasite,<fnref n="991" /> the “Cinderella article”, since it works only in relation to the rights and freedoms safeguarded by the ECHR. This signifies that under the aforementioned article, discrimination not connected to any article of the Convention falls outside the competence of the Court. However, the entry into force of Protocol 12 removed the necessity to prove a link between discrimination and the violation of another right included in the Convention.

<footnote n="989">⁹⁸⁹ Guido Schwellnus, ‘Anti-Discrimination Legislation’ in Bernd Rechel (ed), *Minority rights in Central and Eastern Europe* (Routledge 2009) 32.</footnote>

<footnote n="990">⁹⁹⁰ John Packer, ‘On the Definition of Minorities’ in John Packer and Kristian Myntti (eds), *The Protection of Ethnic and Linguistic Minorities in Europe* (Institute for Human Rights, Åbo Akademi University 1993) 57; Geoff Gilbert, ‘The Council of Europe and Minority Rights’ (1996) 18 HRQ 160, 168.</footnote>

<footnote n="991">⁹⁹¹ *Sommerfeld v Germany* [2003] ECtHR [GC] 31871/96; Niklas Bruun, ‘Prohibition of Discrimination under Art. 14 of the European Convention on Human Rights’ in Filip Dorssemont, Klaus Lörcher and Isabelle Schömann (eds), *The European Convention on Human Rights and the Employment Relation* (Hart Publishing 2013) 371.</footnote>
Despite this limitation of the right to non-discrimination in the rights accorded by the Convention, Article 1§1 of Protocol 12 not only provides that it is a separate right from other substantive articles, but also that it applies to rights established by the law, and thus to national laws.<fnref n="992" /> The only difference between Article 14 and 1§1 of the Protocol is the scope of its application.<fnref n="993" /> In *Pilal v. Bosnia* (2016), the Court confirmed the importance of interpreting both articles in the same way.<fnref n="994" /> Once again, put together, these two articles are similar to Articles 2§1 and 26 of the ICCPR.

### 1.1.2. *The range of Article 14*

Significantly, because of the stated purpose of Article 14, drafted as a tool to prohibit discrimination, the list of rights developed within the article is shorter than the UDHR, and does not include social or economic rights. This absence led to the development of rights related to property, education and free election within Protocol 1 and to the expansion of other rights throughout the Court jurisprudence. For instance, in *Lucza v. Poland* (2007), the Court argued that discrimination can be based on nationality.<fnref n="995" /> In this case, a French national of Polish origin had moved to Poland, where he was excluded from the social security system for farmers, on the grounds of his French nationality.

As clearly indicated in Article 14, discrimination is prohibited on grounds of sex, race, colour, language, religion, political, national or social origin, or in association with a national minority, property and birth.

The expression “other status”, broadly defined by the Court, has been understood as an open expression, indicating that the article is not limited to a certain list of discriminations.<fnref n="996" /> In the *Novruk* case (2016), the ECtHR argued that it can be understood as “differences based on an identifiable, objective, or personal characteristics, or ‘status’, by which individuals or groups

<footnote n="992">⁹⁹² Article 1 Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms 2000.</footnote>

<footnote n="993">⁹⁹³ *Sejdic Finci v Bosnia-Herzegovina* [2009] ECtHR 27996/06.</footnote>

<footnote n="994">⁹⁹⁴ *Pilav v Bosnia and Herzegovina* [2016] ECtHR 41939/07 [40]; *Andejeva v Latvia* [2009] ECtHR 55707/00.</footnote>

<footnote n="995">⁹⁹⁵ *Luczak v Poland* [2007] ECtHR 77782/01; *Savickis v Latvia* [2022] ECtHR 49270/11.</footnote>

<footnote n="996">⁹⁹⁶ Oddný Mjöll Arnardóttir, ‘Non-Discrimination under Art. 14 ECHR: The Burden of Proof’ [2007] Sc.St.L. 13, 14.</footnote>
are distinguishable from one another”.<fnref n="997" /> In *Biao* (2016), the Court completed the definition by including the innate or inherent characteristics of individuals.<fnref n="998" /> The evolution of jurisprudence has integrated new categories under the label of “other status”, such as sexual orientation, age and disability which have been developed under EU law through directives,<fnref n="999" /> but also fatherhood or motherhood,<fnref n="1000" /> marital status,<fnref n="1001" /> place of residence,<fnref n="1002" /> military rank,<fnref n="1003" /> parenthood of a child born out of marriage,<fnref n="1004" /> affiliation to an organisation,<fnref n="1005" /> medical circumstances,<fnref n="1006" /> detainees pending trial,<fnref n="1007" /> etc.

This expansion of rights through Court jurisprudence increases protection of specific individuals and situations.

### 1.1.3. The extension of protection against direct and indirect discrimination

Whilst the Article outlines clear categories of groups, it does not develop the different types of discrimination, whether indirect or direct, systemic, social or even the substantive conception of discrimination, consequently weakening the understanding of discrimination.

In fact, throughout its jurisprudence the Court developed, or, in certain cases, refused, to highlight these types of discrimination. In *Anguelova v. Bulgaria* (2000) the Court emphasised the importance of systemic discrimination, despite its absence from Article 14 but failed to promote and develop the substantive conception of non-discrimination. Under this concept,

<footnote n="997">⁹⁹⁷ *Novruk and others v Russia* [2016] ECtHR 31039/11, 48511/11, 76810/12, 14618/13, 13817/14 [90].</footnote>

<footnote n="998">⁹⁹⁸ *Biao v Denmark* (n 154) para 89.</footnote>

<footnote n="999">⁹⁹⁹ ‘Handbook on European Non-Discrimination Law’ (European Union Agency for Fundamental Rights, Council of Europe 2018) 224; *Šaltinytė v Lithuania* [2022] ECtHR 32934/19.</footnote>

<footnote n="1000">¹⁰⁰⁰ *Weller v Hungary* [2009] ECtHR 44399/05; *Paparrigopolous v Greece* [2022] ECtHR 61657/16; *Tapeya v Russia* [2022] ECtHR 24757/18.</footnote>

<footnote n="1001">¹⁰⁰¹ *Petrov v Bulgaria* [2008] ECtHR 15197/02, *Şerife Yiğit v Turkey* [2010] ECtHR 3976/05.</footnote>

<footnote n="1002">¹⁰⁰² *Carson v the United Kingdom* [2010] ECtHR [GC] 42184/05, *Baralika v Bosnia and Herzegovina* [2019] ECtHR 30100/18.</footnote>

<footnote n="1003">¹⁰⁰³ *Engel v the Netherlands* [1976] ECtHR 5100/71; 5101/71; 5102/71; 5354/72; 5370/72.</footnote>

<footnote n="1004">¹⁰⁰⁴ *Sommerfeld v Germany* [2003] ECtHR [GC] 31871/96; *Christine Goodwin v the United Kingdom* [2002] ECtHR [GC] 28957/95; *Mazurek v France* [2000] ECtHR 34406/97.</footnote>

<footnote n="1005">¹⁰⁰⁵ *Danilenkov v Russia* [2009] ECtHR 67336/01; *Grande Oriente D’italia Di Palazzo Giustiniani v Italy* (n° 2) [2007] ECtHR 26740/02.</footnote>

<footnote n="1006">¹⁰⁰⁶ *Novruk v Russia* (n 1007).</footnote>

<footnote n="1007">¹⁰⁰⁷ *Varnas v Lithuania* [2013] ECtHR 42615/06.</footnote>
individuals, because of their association with specific groups, face discrimination systematically. Despite recognising “systemic racism and hostility” in the use of the term “the Gypsy” by police officers, which signals discrimination within institutional bodies in Bulgaria,<fnref n="1008" /> the Court missed the chance of expanding the substantive concept of non-discrimination. In its dissent opinion, Judge Bonello focused on the intriguing attitude of the Court in not, for instance, considering colour, nationality or place of origin as the core element to human rights violation.<fnref n="1009" />

Direct discrimination is more easily considered by the Court, whereas indirect discrimination is not generally recognised. The equal application of national legislation to everyone within the country's jurisdiction, but which has disproportionate impact on specific groups seems not to have been initially considered by the Court.

In Turkey, for example, legislation permits detention for a period of four days, which can be extended to fifteen days in case of a trial before the State Security Courts. However, in *Sanli and Erol v. Turkey* (2001), the Court argued that the thirteen days of detention was not a violation of the general policy but was respecting Law no. 3842, under which people committing terrorist offences would be treated less favourably regarding pre-trial detention.<fnref n="1010" /> Thus, for the Court, the difference of treatment between the four-day detention and the thirteen-day period was not due to political membership. In this case, the ECtHR concluded a non-violation of the right to non-discrimination. This highlights the Court's failure to consider the political context, mainly the oppression by the Turkish army and government since the 1980s.

Another relevant case concerning political ideologies is that of the Kurd minority in Turkey. In *Mutlu and Yildiz* (2001),<fnref n="1011" /> and *Kalin, Gezer and Tebay* (2004)<fnref n="1012" /> versus Turkey, the applicants, suspected members of the Kurdistan Workers' Party, were detained as terrorists, hence for a period of fifteen days instead of the usual four days. Again, the Court held that national legislation justified the difference of treatment. More significantly, no ethnic criteria

<footnote n="1008">¹⁰⁰⁸ Anguelova v Bulgaria [2000] ECtHR 38361/97 [5].</footnote>

<footnote n="1009">¹⁰⁰⁹ Anguelova v Bulgaria [2002] ECtHR 38361/97 [13].</footnote>

<footnote n="1010">¹⁰¹⁰ Sanli and Erol v Turkey [2001] ECtHR 36760/97 [2].</footnote>

<footnote n="1011">¹⁰¹¹ Mutlu and Yildiz v Turkey [2001] ECtHR 30495/96.</footnote>

<footnote n="1012">¹⁰¹² Kalin v Turkey [2004] ECtHR 31236/96.</footnote>
were involved. Here, the ECtHR did not consider the political oppression of the Kurd minority.
Nor did it consider the disproportionate arrest of Kurds under terrorist legislation.<fnref n="1013" /> Whilst in
theory the Turkish legislation seemed neutral, in practice its application by Turkish institutions
to minority groups violated the right to non-discrimination. However, disregard of indirect
discrimination led the ECtHR to set aside Article 14 in cases related to Turkey.

In contrast, in cases connected to the United Kingdom's violation of Article 14 in Northern Ireland, the ECtHR did accept arguments based on *de facto* indirect discrimination.<fnref n="1014" /> For legal scholar Geoff Gilbert, the difference of approach between the Turkish jurisprudence and the United Kingdom cases may be linked to the dissimilarities in arguments. For Gilbert, if Turkish applicants had advanced more robust arguments based mainly on the percentage of arrested Kurds under the anti-terrorist legislation, the Court may have considered indirect discrimination.<fnref n="1015" /> As a counter argument to this view, it could be said that the Court as a regional human rights organ, could not base its ruling solely on parties' data. It is important for any regional court to bear in mind the difficulties parties face in accessing data, and the political, geographical, social context of minority groups. In fact, at the EU level, the discrimination faced by Kurds within Turkey was already a well-known information in the years before 2000.<fnref n="1016" />

Despite specific cases where the Court did not consider indirect discrimination, it is often
argued that since the *Thlimmenos* case (2000)<fnref n="1017" /> and its rulings on separate education of Roma
children in Eastern European states,<fnref n="1018" /> the concept of indirect discrimination was finally
integrated within its jurisprudence.

<footnote n="1013">¹⁰¹³ Geoff Gilbert, 'The Burgeoning Minority Rights Jurisprudence of the European Court of Human Rights' (2002) 24 HRQ 736, 748.</footnote>

<footnote n="1014">¹⁰¹⁴ *Shanaghan v the United Kingdom* [2001] ECtHR 37715/97; *Hugh Jordan v the United Kingdom* [2001] ECtHR 24746/94; *Mckerr v the United Kingdom* [2001] ECtHR 28883/95; *Kelly v the United Kingdom* [2001] ECtHR 30054/96.</footnote>

<footnote n="1015">¹⁰¹⁵ Gilbert, 'The Burgeoning Minority Rights Jurisprudence of the European Court of Human Rights' (n 1023) 749.</footnote>

<footnote n="1016">¹⁰¹⁶ ‘Turkey: The Problems Experienced by Kurds during 2000-2001; Those Most at Risk within the Kurdish Population; the Risks Experienced by Kurds Who Are Not Politically Active; the Regions Where Kurds Are Most at Risk’ (Canada: Immigration and Refugee Board of Canada 2001) TUR37720.E.</footnote>

<footnote n="1017">¹⁰¹⁷ *Thlimmenos v Greece* (n 200).</footnote>

<footnote n="1018">¹⁰¹⁸ Rory O'Connell, 'Cinderella Comes to the Ball: Art 14 and the Right to Non-Discrimination in the ECHR' (2009) 29 Legal Studies 211.</footnote>
1.1.4. Difference of treatment and impact on available data

Court jurisprudence proves that effective protection against discrimination is closely
linked to the existing levels of scrutiny in countries. In cases of high-level scrutiny, the Court
will be more exacting about justification in case of discrimination. The degree of suspicion –
based on gender, skin colour, race or ethnicity, religion – on grounds of discrimination will be
higher in countries where there is already a high level of scrutiny.

Reports on discrimination by EU bodies are quoted in the ECtHR jurisprudence.<fnref n="1019" /> Difference of treatment between countries thus affect availability of data. In fact, a parallel can be made between the EU’s political pressure and the ECtHR’s approach to discrimination. During the integration of Eastern European countries, depending on the size of the Roma ethnic group within each State, the EU’s political pressure varied. The case of Eastern Europe drew attention to human rights effectiveness, especially for minority groups. It revealed the States difficulties in integrating, and establishing clear legislation in favour of minority groups through the right to non-discrimination. More significantly, it highlighted the differences of treatment between

<footnote n="1019">¹⁰¹⁹ See: *Nachova v Bulgaria* (n 202) paras 51–53.</footnote>
countries. For instance, in Bulgaria,<fnref n="1020" /> Czech Republic<fnref n="1021" />, Hungary,<fnref n="1022" /> Romania<fnref n="1023" /> and Slovakia,<fnref n="1024" /> measures against discrimination towards Roma were clearly recognised in the

<footnote n="1020">¹⁰²⁰ While in the Constitution, the principle of non-discrimination is already established, in order to align with the European anti-discrimination *acquis*, in January 2004, Bulgaria had an anti-discrimination law entered into force, prohibiting direct and indirect discrimination. The new law takes into account discrimination based on sexual orientation. '2004 Regular Report on Bulgaria's Progress towards Accession' (European Commission 2004) SEC(2004) 1199 20.</footnote>

<footnote n="1021">¹⁰²¹ Existing legislation, Employment Act and the labour code, did not satisfy EU requirements on the right to non-discrimination, and it was only in 2003 and 2004 that amendments were adopted with the insertion of a definition on discrimination. Despite these efforts, the country is the last EU State to adopt anti-discrimination law. The Anti-Discrimination Act passed on 17 June 2009 guarantees the right to equal treatment and ends discrimination on specific grounds such as sex, age, race, or ethnic origin, and it prohibits direct (section 2§3) and indirect discrimination (sections 1§3 and 2§2). This law meets the minimum requirement of the EU directives. In comparison to the other European countries, Czech Republic has the minimum criteria protected by national laws against discrimination. For instance, Belgium has 21 criteria while Czech Republic has only nine (race, colour, ethnic origin, nationality, sex, sexual orientation, age, disability, religion or belief). Czech Republic does not consider birth or gender identity or even political opinion as grounds of discrimination. Isabelle Chopin and Catharina Germaine, 'A Comparative Analysis of Non-Discrimination Law in Europe, 2017' (European Commission 2017) 12; Pavla Boučková, 'Report on Measures to Combat Discrimination – Directives 2000/43/EC and 2000/78/EC: Country Report 2012, Czech Republic' (European Network of Legal Experts in the Non-discrimination Field 2013).</footnote>

<footnote n="1022">¹⁰²² Between 2001 and 2003, the European Commission had pointed out the absence and fragmentation of a unified anti-discrimination legislation. It also clearly pointed out the need to “improve the situation of the Roma minority”. Debates over the constitutionality of such a law emerged in the country, the Constitutional Court on 4 December 2020 argued that a unified law was not unconstitutional. ‘2002 Regular Report on Hungary’s Progress towards Accession’ (European Commission 2002) SEC(2002) 1404 27; ‘Comprehensive Monitoring Report on Hungary’s Preparations for Membership,’ (European Commission 2003) SEC(2003) 1205 36; ‘Minority Protection in the EU Accession Process. Monitoring the EU Accession Process: Minority Rights’ (Open Society Institute 2001) 223–224; ‘Hungarian Constitutional Court Rules on Anti-Discrimination Legislation’ (*European Roma Rights Centre*, 10 April 2001).</footnote>

<footnote n="1023">¹⁰²³ The 2002 Romanian text, Ordinance on the Prevention and Punishment of All Forms of Discrimination pushed the country to have one of the most complete anti-discrimination legislation within EU candidates. ‘Minority Protection in the EU Accession Process. Monitoring the EU Accession Process: Minority Rights’ (n 1012) 393.</footnote>

<footnote n="1024">¹⁰²⁴Contrary to Hungary, the Slovakian Constitutional Court argued in October 2005 that positive actions on grounds of racial and ethnic origins within the anti-discrimination legislation passed in May 2004 was anti-constitutional. The Court pointed out firstly the vagueness of these provisions and secondly the unconstitutionality of measures based on grounds of race and ethnicity. While the legislation still passed without the positive measures and complies with the EU non-discrimination directives, the Christian Democrats Party’s clear opposition to anti-discriminatory measures still occurs today. Antoaneta Dimitrova and Mark Rhinard, ‘The Power of Norms in the Transposition of EU Directives’ (2005) 9 European Integration online Papers 1, 14; Zuzana Dlugosova, ‘Executive Summary Slovakia Country Report on Measures to Combat Discrimination’ (European network of legal experts in the non-discrimination field); Miroslava German Sirotnikova, ‘Anti-Roma Rhetoric Under Scrutiny Before Slovak Election’ (*Balkan Insight*, 3 January 2020); Gilles Mastalski, ‘Les Slovaques restent les Slovaques’ (2004) 7 Outre-Terre 243; ‘Discriminating Roma Children at School: Slovakia’ (*European Commission*, 19 April 2023).</footnote>
annual progress reports.<fnref n="1025" /> On the contrary, in countries like Estonia,<fnref n="1026" /> Latvia,<fnref n="1027" /> Lithuania,<fnref n="1028" /> Poland<fnref n="1029" /> and Slovenia,<fnref n="1030" /> this element was barely mentioned.

Level of scrutiny not only impacts data on discrimination, but also the level of MOA.<fnref n="1031" />
High level of scrutiny leads to a narrower MOA.

<footnote n="1025">¹⁰²⁵ Guido Schwellnus, 'Anti-Discrimination Legislation' in Bernd Rechel (n 999) 35</footnote>

<footnote n="1026">¹⁰²⁶ Despite its accession to the EU in 2004, Estonia did not have a non-discrimination legislation. Interestingly, on 25 June 2009, the European Commission sent Estonia in front of the CJEU for the non-transposition in national law of EU Directive 2004/113/EC on gender discrimination. The Commission did withdraw its appeal as Estonia complied with its obligation. 'Commission Refers Estonia to European Court of Justice on Gender Equality Legislation' (European Commission, 25 June 2009); Commission européenne c République d'Estonie [2010] CJEU C-328/09.</footnote>

<footnote n="1027">¹⁰²⁷ The Constitution of Latvia does prohibit discrimination (article 91), yet no list is established. It thus seems that the promotion of anti-discrimination legislation is an EU process in the country. In 2001, a new labour code was adopted and amended in 2004. But it was only in 2006 that sexual orientation discrimination was ban from employment. While information and data can be found on other European countries, Latvia remains quite discrete towards the situation of vulnerable groups (mainly Roma) especially their employment. 'Development of Anti-Discrimination Legislation and Practice in Latvia: EU Accession and Remaining Challenges' (European Commission, 30 September 2008); 'Latvia Finally Bans Sexual Orientation Discrimination in Employment' (ILGA Europe, 22 September 2006); Aleksejs Dimitrovs, 'Equality Law in Latvia: Current Trends and Challenges' (2012) 9 ERR 11.</footnote>

<footnote n="1028">¹⁰²⁸ In January 2005, the Law on Equal Treatment covered the prohibition of all grounds and took into account two European directives (200/78/EC and 2000/43/EC). Edita Ziobiene, 'Report on Measures to Combat Discrimination – Directives 2000/43/EC and 2000/78/EC, Country Report: Lithuania' (European Network of Legal Experts in the Non-discrimination Field 2007) 3.</footnote>

<footnote n="1029">¹⁰²⁹ Despite the amendment on the labour code in 2003 for discrimination at the workplace, Poland still faced procedures in front of the CJEU in 2011 due to the non-integration of the EU equality legislation at the national level. However, the case was dropped as Poland adopted a new anti-discrimination law. 'Equality: Commission Drops Three Cases against Poland Following New Anti-Discrimination Law' (European Commission, 14 March 2011).</footnote>

<footnote n="1030">¹⁰³⁰ Slovenia implemented the EU directives in April 2004, the year of its entering in the EU, with the Implementation of the Principle of Equal Treatment Act. This Act considers the different groups of discrimination established by the EU directives. However, it is important to note that the Slovenian Constitution at article 14§1 contains a wider protection towards the violation of the right to non-discrimination than what is required by the European directives. Neža Kogovšek Šalamon, 'Report on Measures to Combat Discrimination – Directives 2000/43/EC and 2000/78/EC: Country Report 2013 Slovenia' (European Network of Legal Experts in the Non-discrimination Field 2014) 13.</footnote>

<footnote n="1031">¹⁰³¹ Kristin Henrard, 'The European Court of Human Rights, Ethnic and Religious Minorities and the Two Dimensions of the Right to Equal Treatment: Jurisprudence at Different Speeds?' (2016) 34 Nord. J. Hum. Rights 157, 160.</footnote>
## 1.2. Room for manoeuvre: the margin of appreciation doctrine

The ECtHR's role, recalled in *Karner v. Austria* (2003), is to determine issues “on public-policy grounds in the common interest” within European States, and promote a “general standard” of human rights.<fnref n="1032" /> This approach echoes French sociologist Durkheim's understanding of law as a visible symbol, which ensures stability and precision within society.<fnref n="1033" /> Durkheim also considered law as a framework to understand and consider social morality.<fnref n="1034" /> This sociological approach resonates in the MOA doctrine. The constant recognition by the Court of States' discretion rights is mainly based on this idea of an European moral dimension.<fnref n="1035" />

Under this doctrine, which is a judicial creation as there is no article in the Convention which proclaims it, the ECtHR grants authority to States to fulfill their obligations under the Convention.<fnref n="1036" /> In doing so, the Court strikes a balance between a State's sovereignty and their obligations under the ECHR. Furthermore, it allows the ECtHR to consider States' different interpretations arising from a divergence in legal, cultural and historical traditions. This doctrine goes back to the 1958 case *Greece v. United Kingdom* of the European Commission of Human Rights, under which the Commission maintained the right to MOA.<fnref n="1037" /> It was then re-used in the *Handyside* case (1976). The Court expanded the scope of the doctrine through a case-by-case approach. From a general perspective, the MOA allows circumvention of strong confrontations between the Strasbourg Court and States.<fnref n="1038" />

The application of the MOA doctrine enables differential treatment between States. Depending on the State, and the existence or absence of common ground between national laws and the Convention, the Court will apply a narrower or broader margin based on circumstances,

<footnote n="1032">¹⁰³² *Karner v Austria* [2003] ECtHR 40016/98 [26].</footnote>

<footnote n="1033">¹⁰³³ Emile Durkheim, *The Division of Labour in Society* (1893rd edn, The Free Press 1933) 64–65.</footnote>

<footnote n="1034">¹⁰³⁴ Paul Johnson, ‘Sociology and the European Court of Human Rights’ (2014) 62 Sociol Rev 547, 550.</footnote>

<footnote n="1035">¹⁰³⁵ *Handyside v the United Kingdom* [1976] ECtHR 5493/72 [48]; *Capital Bank AD v Bulgaria* [2005] ECtHR 49429/99 [78–79].</footnote>

<footnote n="1036">¹⁰³⁶ Steven Greer, *The Margin of Appreciation: Interpretation and Discretion under the European Convention on Human Rights*, vol 17 (Human rights files No 17 Council of Europe Publishing 2000) 5.</footnote>

<footnote n="1037">¹⁰³⁷ *Greece v United Kingdom* [1956] European Commission of Human Rights 176/1956.</footnote>

<footnote n="1038">¹⁰³⁸ Helen Fenwick, *Civil Liberties and Human Rights* (Cavendish Publishing Limited 2005) 34–37.</footnote>
subject-matter, and background.<fnref n="1039" /> In cases where practices differ significantly between States, the margin will be wider.<fnref n="1040" /> On the contrary, in the event of a common European background, the margin will be narrower.<fnref n="1041" />

Member States are thus allowed a MOA. However, in terms of minority groups, the MOA may weaken the principle of non-discrimination.<fnref n="1042" /> The ECtHR developed this notion because of its absence from the Convention. It aims at reconciling a common standard upheld by the Convention whilst safeguarding legal pluralism. The Court considers that national authorities are often in a better position to appreciate the full extent of a problem and to provide the most appropriate solutions. Therefore, the Court leaves it to States to choose the measures they consider most appropriate to fulfil their obligations.<fnref n="1043" /> However, recognition of an MOA does not signify that the State is exempt from European control.

Regarding minority groups, the value of this approach by the ECtHR calls for more rigour. Firstly, the use of the MOA in favour of States may be perceived as a risky move for marginalised and minority groups. In fact, in the case of Turkey, the Court's use of the MOA in *Refah* (2001) and *Sahin* (2005) led to the loss of legitimacy of Turkish minorities.<fnref n="1044" /> Secondly, on Article 14 and minority groups, the MOA based itself on three factors: (i) the State must prove that the practice is reasonable and rational;<fnref n="1045" /> (ii) the disproportionate effects of the treatment;<fnref n="1046" /> (iii) a comparison between democratic States' use of this practice.<fnref n="1047" /> The MOA doctrine was frequently used at the level of the ECtHR in cases related to sexual orientation. In the early 1980s the doctrine was invoked in cases over differences concerning

<footnote n="1039">¹⁰³⁹ Rasmussen v Denmark [1984] ECtHR 8777/79 [40].</footnote>

<footnote n="1040">¹⁰⁴⁰ Frette v France [2002] ECtHR 36515/97.</footnote>

<footnote n="1041">¹⁰⁴¹ Pieter van Dijk, Godefridus JH Hoof and GJH Van Hoof, *Theory and Practice of the European Convention on Human Rights* (Martinus Nijhoff Publishers 1998) 87.</footnote>

<footnote n="1042">¹⁰⁴² O'Connell, 'Cinderella Comes to the Ball: Art 14 and the Right to Non-Discrimination in the ECHR' (n 1028).</footnote>

<footnote n="1043">¹⁰⁴³ Howard Charles Yourow, *The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence* (Brill Nijhoff 2021) 13.</footnote>

<footnote n="1044">¹⁰⁴⁴ *Refah Partisi* (*the Welfare Party*) v Turkey [2001] ECtHR 41340/98, 41342/98, 41343/98, 41344/98; Leyla Şahin v Turkey [2005] ECtHR [GC] 44774/98.</footnote>

<footnote n="1045">¹⁰⁴⁵ Abdulaziz, *Cabales and Balkandali v the United Kingdom* [1985] ECtHR 9214/80, 9473/81, 9474/81 [74–83].</footnote>

<footnote n="1046">¹⁰⁴⁶ Case 'relating to certain aspects of the laws on the use of languages in education in Belgium' (merits) (n 179).</footnote>

<footnote n="1047">¹⁰⁴⁷ J Schokkenbroek, 'The Prohibition of Discrimination in Article 14 of the Convention and the Margin of Appreciation' (1998) 19 Hum. Rights Law J. 20, 21.</footnote>
the age limit for sexual activity between gay men (18 years old) and heterosexuals (16 years old). In *Sutherland v. United Kingdom* (1996), this discrimination based on sexuality was not only considered to be in violation of the Convention, but the applicants found the MOA doctrine narrow in cases concerning obligation to refrain from interpretation.<fnref n="1048" /> In *Frette v. France* (2004), the Court argued that in relation to adoption policy for a single person that not only was the refusal illustrative of discrimination based on sexual orientation, but more importantly, the absence of a general policy within Europe on adoption by single persons set aside the MOA doctrine.<fnref n="1049" />

Thus, the application of the MOA doctrine varies according to the context, as distinction between different treatment and discrimination needs to be considered in light of social policies.<fnref n="1050" />

Regarding social policy, in certain cases related to discrimination based on sex,<fnref n="1051" /> religion<fnref n="1052" /> or nationality,<fnref n="1053" /> the ECtHR has argued *prima facie* discrimination in terms of differential treatment on the grounds that they are expressly or implicitly contrary to European social policy.<fnref n="1054" />

The *prima facie* discrimination cases attest to the Court's evolution on discrimination of minority groups. In fact, the Court was strongly criticised over the burden of proof imposed on the applicant, perceived as unreasonable.<fnref n="1055" /> There are undoubtedly difficulties in presenting evidence of discrimination. This has triggered an evolution in IHRL in discrimination cases with the ECtHR having the claimant prove the *prima facie*, so that the burden of proof falls on

<footnote n="1048">¹⁰⁴⁸ *Sutherland v the United Kingdom* [1996] ECtHR 25186/94.</footnote>

<footnote n="1049">¹⁰⁴⁹ *Frette v France* (n 1050).</footnote>

<footnote n="1050">¹⁰⁵⁰ *Rasmussen v Denmark* (n 1049) para 40.</footnote>

<footnote n="1051">¹⁰⁵¹ *Abdulaziz, Cabales and Balkandali v the United Kingdom* [1985] ECtHR 9214/80, 9473/81, 9474/81 [78]; *Schuler-Zgraggen v Switzerland* [1993] ECtHR 14518/89 [67]; *Burghartz v Switzerland* [1994] ECtHR 16213/90 [27]; *Karlheinz Schmidt v Germany* [1994] ECtHR 13580/88 [24].</footnote>

<footnote n="1052">¹⁰⁵² *Canea Catholic Church v Greece* [1997] ECtHR 25528/94 [47].</footnote>

<footnote n="1053">¹⁰⁵³ *Gaygusuz v Austria* [1996] ECtHR 17371/90 [42].</footnote>

<footnote n="1054">¹⁰⁵⁴ Greer, *The Margin of Appreciation: Interpretation and Discretion under the European Convention on Human Rights* (n 1046) 11.</footnote>

<footnote n="1055">¹⁰⁵⁵ Henrard, 'The European Court of Human Rights, Ethnic and Religious Minorities and the Two Dimensions of the Right to Equal Treatment: Jurisprudence at Different Speeds?' (n 1041) 162.</footnote>
the State.<fnref n="1056" /> The Court started incorporating the prohibition of indirect discrimination in its reasoning, whilst the new approach of the burden of proof evolved.<fnref n="1057" />

The Court seemingly advanced in terms of burden of proof but, more importantly, with the consideration of indirect discrimination, it took a step backwards with discriminatory violence. In this case, the Court appears reticent in adopting its own approach to the burden of proof.<fnref n="1058" /> In the *Nachova* (2004) case over the killing of two fugitive Roma men by Bulgarian policemen, the Court refused to allocate the burden of proof on the State as it would be too demanding.<fnref n="1059" /> Despite Bulgaria being one of the countries where measures against discrimination were clearly demanded by the EU during the country's integration process, in view of the high visibility of social and institutional discrimination against the Roma minority, the Grand Chamber in 2004 did not consider the link between flawed police investigation and a case of *prima facie* racial discrimination. Similarly, in the accepted approach to indirect discrimination since 2014, the Court increased its level of protection towards discriminatory violence by expanding its level of scrutiny mainly on grounds of ethnicity, and more prominently, on this ground the Court accepts identified cases of *prima facie* for direct discrimination.<fnref n="1060" /> Yet, despite specific cases,<fnref n="1061" /> the Court is still reluctant to consider institutional discrimination within the police and its impact on investigation.<fnref n="1062" />

## 2. Addressing marginality

To understand the concept of minority groups protection at the ECtHR level, it is important to analyse not only the protection granted by Article 14 but also the Court's approach

<footnote n="1056">¹⁰⁵⁶ Monika Ambrus, *Enforcement Mechanisms of the Racial Equality Directive and Minority Protection: Theory and Four Case Studies* (Eleven 2010) 27–30.</footnote>

<footnote n="1057">¹⁰⁵⁷ Samantha Besson, ‘Gender Discrimination under EU and ECHR Law: Never Shall the Twain Meet?’ (2008) 8 Hum. Rights Law Rev. 647, 670–671; 679; O’Connell, ‘Cinderella Comes to the Ball: Art 14 and the Right to Non-Discrimination in the ECHR’ (n 1028) 222–223.</footnote>

<footnote n="1058">¹⁰⁵⁸ Kristin Henrard, ‘The Council of Europe and the Rescue of Roma as a Paradigmatic Case of Failed Integration?’ in European Centre for Minority Issues and The European Academy Bozen/Bolzano (eds), *European Yearbook of Minority Issues*, vol 10 (Brill Nijhoff 2011) 281–283.</footnote>

<footnote n="1059">¹⁰⁵⁹ *Nachova v Bulgaria* (n 202) para 157.</footnote>

<footnote n="1060">¹⁰⁶⁰ Henrard, ‘The Council of Europe and the Rescue of Roma as a Paradigmatic Case of Failed Integration?’ (n 1068) 164.</footnote>

<footnote n="1061">¹⁰⁶¹ *Lingurar v Romania* [2019] ECtHR 48474/14.</footnote>

<footnote n="1062">¹⁰⁶² *Sakir v Greece* [2016] ECtHR 48475/09; *MC and AC v Romania* [2016] ECtHR 12060/12.</footnote>
to different types of discrimination. In light of the Court's jurisprudence, it is difficult to argue that the ECtHR analyses the general context of minority groups situation in specific countries. The approach to consider Article 14 violation does not seem linked to the understanding of the systemic and general discrimination faced by minority groups.

The concept of marginalisation though seemingly straightforward, and offering possibilities of a deeper protection of minority groups, remains hampered by narrow understanding. Integrating this concept, may force the Court to examine minority groups' social, economic and political position to grasp both the overall picture of the violation, and more significantly, the importance and impact of such a violation on minority groups' right to non-discrimination.

## 2.1. The culture of discrimination

Marginalisation, like discrimination, is a compilation of different factors when it impacts minority groups. The difficulty of this concept, in addition to its intersectionality, lies in the socio-legal approach. Marginality is often defined as the description and analysis of “socio-cultural, political and economic spheres, where disadvantaged people struggle to gain access [...] to resources [...] In other words, marginalised people might be socially, economically, politically and legally ignored, excluded or neglected”.<fnref n="1063" />

Understanding marginality is different from recognising it in terms of human rights. From a legal perspective, marginalisation translates mostly as a difficulty to access justice. As highlighted in the Assamese case, the judiciary tends to reflect imbalances within society and reinforce them. These obstacles can be divided in two categories: (i) institutional, involving consideration of social discrimination in institutions, poor accountability mechanisms, problematic use of legal procedure, and poor interpretation and implementation of the law; (ii) social, which includes the lack of financial resources, stereotypes and cultural attitudes, and the absence of awareness of individuals legal rights and procedure. For both categories, judges can translate these realities in legal terms specific to human rights, such as access to justice, the right to non-discrimination, or right to fair trial. Therefore, a Court may be persuaded to not

<footnote n="1063">¹⁰⁶³ Tom Brind, Caroline Harper and Karen Moore, ‘Introduction and an Overview of the Marginalisation of Groups in Europe’ (Open Society Foundations 2008) 2; Ghana S Gurung and Michael Kollomair, ‘Marginality: Concepts and Their Limitations’ (NCCR North South 2005) 10.</footnote>
only follow a legal approach to human rights violation but equally, to bear in mind the
sociological mechanisms of the society which minority groups inhabit.

‘Margin’ originates from the Latin word *marginem* or *margo*, translated into English as the edge. Marginalisation can be the result of different factors. These range from the unequal geographical impact of globalisation<fnref n="1064" /> on economic development,<fnref n="1065" /> government policy on dislocation of individuals such as asylum seekers,<fnref n="1066" /> and detention of migrants in detention centres, highlighted by Covid-19.<fnref n="1067" /> These elements correspond to spatial marginalisation. But it can also occur when citizenship rights are defined by legalisation of territorial arrangements within States.<fnref n="1068" /> But by far the most visible element leading to marginalisation is linked to social prejudices and beliefs.<fnref n="1069" /> This societal framework of marginalisation concentrates on aspects determined by humans, such as religion, culture or social structure. It is reflected in living conditions marked by lack of resources and opportunities.<fnref n="1070" /> The Court’s use of this concept indicates not only the marginalisation of an individual but takes account of the broader historical, political, social context that creates this phenomenon. In India, the use of marginalisation by the SC reflects this idea. For instance, in the recent case *Janhit Abhiyan* (2022) related to reservation on economic criteria, the concept of marginalisation is used throughout the ruling to underline the disparities between social groups.<fnref n="1071" /> This case highlights the difficulties of this concept. Not only is there a constant intersection between elements of marginalisation, but with particular socio-economic and geo-political environments.

<footnote n="1064">¹⁰⁶⁴: Overview of the Impact of Coronavirus Measures on the Marginalised Roma Communities in the EU' (Council of Europe).</footnote>

<footnote n="1065">¹⁰⁶⁵ Sergio Puig, *At the Margins of Globalization: Indigenous Peoples and International Economic Law* (Cambridge University Press 2021).</footnote>

<footnote n="1066">¹⁰⁶⁶ Andrew Burridge and Nick Gill, 'Conveyor-Belt Justice: Precarity, Access to Justice, and Uneven Geographies of Legal Aid in UK Asylum Appeals' (2017) 49 Antipode 23.</footnote>

<footnote n="1067">¹⁰⁶⁷ Joint Committee on Human Rights, 'The Government's Response to COVID-19: Human Rights Implications. Seventh Report of Session 2019–21' (House of Commons 2020) HC265.</footnote>

<footnote n="1068">¹⁰⁶⁸ Nadia Ben-Youssef and Sandra Samaan Tamari, 'Enshrining Discrimination: Israel's Nation-State Law' (2018) 48 JPS 73.</footnote>

<footnote n="1069">¹⁰⁶⁹ Gurnham, 'Introduction: Marginalisation in Law, Policy and Society' (n 105) 6.</footnote>

<footnote n="1070">¹⁰⁷⁰ Paul Brodwin, 'Marginality and Cultural Intimacy in a Transnational Haitian Community' [2001] Occasional Paper No.91.</footnote>

<footnote n="1071">¹⁰⁷¹ *Janhit Abhiyan v Union of India* [2022] SC of India WP(C) No(S). 55 OF 2019. In this case, references to the ECHR can be found though the United Kingdom's case: *R(Carson) v Secretary of state of work and pensions* [2005] Appellate Committee of the House of Lords UKHL 17, 2006, 1 AC 173 [3].</footnote>
Undoubtedly, while it may be difficult for the societal framework to change rapidly, the intervention of political parties and legal reforms within national legislation may promote a positive change. However, it is more likely that despite legal reforms, social behaviour and beliefs still reproduce a state of marginalisation for certain communities, thus weakening the right to non-discrimination. In countries where integration into the EU was linked to introducing anti-discrimination legislation, its application remains a challenge, both for State authorities and for victims. This can be connected either to individual unawareness of their rights or authorities' failure to prosecute cases for violation of the right to non-discrimination.<fnref n="1072" />

The failure to prosecute can be traced to structural discrimination, which is embedded in traditional social hierarchical structures, and manifests itself in norms, routines, behavioural pattern and attitudes that impede equality of opportunity and real equality. Discrimination, like marginalisation often flows from to social prejudice against minorities, which fundamentally affects access to justice when these are institutionalised. This is evident in many recorded complaints. In Central and Eastern European countries, except for Hungary and Romania, other countries had low complaints for ethnic discrimination, despite the establishment of complaints procedure. In its 2007 report the EU Agency for Fundamental Rights explained this by the absence of both sanctions of established procedures and moral pressure to end discrimination.<fnref n="1073" />

Marginalisation like discrimination, often consist of different elements. In cases of systemic and structural discrimination, this hinders understanding of the set of mechanisms that lead to the discrimination of minority groups. Marginalisation affects categories of people according to their age, ethnicity, nationality, sexuality or even disability,<fnref n="1074" /> factors decisive to define minority groups. These categories can intersect and increase marginalisation and discrimination.

<footnote n="1072">¹⁰⁷² Guido Schwellnus, 'Anti-Discrimination Legislation' in Bernd Rechel (n 999) 40.</footnote>

<footnote n="1073">¹⁰⁷³ 'Report on Racism and Xenophobia in the Member States of the EU' (European Union Agency for Fundamental Rights 2007) FRA 2007 8.</footnote>

<footnote n="1074">¹⁰⁷⁴ Jørgen Elm Larsen, 'Who Cares about and for Marginal People?', *Coping with Social Polarization in the Urban Landscape: Reflections upon the Empowerment* (Aalborg Universitetsforlag 2002).</footnote>
Understanding a minority group’s marginalisation is beneficial for victims of discrimination as it provides an overview of the use of discriminatory practices, and thus establish a benchmark for evaluating the violation of this right. Yet, identifying marginalisation requires both information about life experiences of minority groups,<fnref n="1075" /> and acceptance of the intersectional nature of discrimination within the ruling.

Consequently, marginalisation and discrimination of minority groups often go hand-in-hand, one leading to another. Yet, the result is the same: inequality, stigmatisation, exclusion and victimisation. In *Oršuš* (2010), the Court quotes a passage of the Parliamentary Assembly Recommendation No. 1557 (2002) on the legal situation of Roma in Europe. It indicates the relation between discrimination and marginalisation: “*today Roma are still subject to discrimination, marginalisation...*”.<fnref n="1076" /> It then connects marginalisation to economic and social segregation, leading to ethnic discrimination. Thus, from a legal perspective marginalisation can be defined as a complex set of individual disadvantages which culminates in the violation of human rights. Yet, marginalisation of groups invites interrogation whether human rights violations are related to identification (race, age, etc.), living conditions (economic inequality, geographical localisation, etc.), or on the contrary to an intersectional reality. This intersectionality underlines a complex causality of elements conducive to human rights violations.<fnref n="1077" /> Indivisibility of human rights implies that: rights are not perceived as part of specific packets (e.g. life, education, housing) but as a whole.<fnref n="1078" />

By crossing a range of variables, marginality and therefore intersectionality provides a
cognitive framework for judges to analyse and understand national structures.<fnref n="1079" />

<footnote n="1075">¹⁰⁷⁵ Gurnham, ‘Introduction: Marginalisation in Law, Policy and Society’ (n 105) 5.</footnote>

<footnote n="1076">¹⁰⁷⁶ *Oršuš v Croatia* (n 177) para 83.</footnote>

<footnote n="1077">¹⁰⁷⁷ Shreya Atrey, ‘The Humans of Human Rights: From Universality to Intersectionality’ (22 February 2020) 23.</footnote>

<footnote n="1078">¹⁰⁷⁸ Lisa A Crooms, ‘Indivisible Rights and Intersectional Identities or, “What Do Women’s Human Rights Have to Do with the Race Convention?”’ (1996) 40 How. L. J. 619, 625–632.</footnote>

<footnote n="1079">¹⁰⁷⁹ Atrey, ‘The Humans of Human Rights: From Universality to Intersectionality’ (n 1087) 25.</footnote>
## 2.2. From marginality to intersectionality

The ECtHR refers to the concept of marginalisation within its jurisprudence. Concepts of social exclusion and marginalisation appear to be interchangeable,<fnref n="1080" /> and at the level of the Court, both concepts are found and used as synonyms within jurisprudence related to minority groups and cases of discrimination. Social exclusion can be understood as a situation under which groups “lack effective participation in key activities or benefits of the society in which they live”.<fnref n="1081" /> Marginalisation is understood as an exclusion or neglect from a social, economic and political perspective.<fnref n="1082" />

A distinction occurs between marginalised groups. Those identified formally by government policy as marginalised, and those who are marginalised because of their non-conformity to cultural or social norms.<fnref n="1083" /> The ECtHR proved that marginalisation could occur through poverty,<fnref n="1084" /> exclusion through race and ethnicity,<fnref n="1085" /> sexual orientation,<fnref n="1086" /> disability or ill-health,<fnref n="1087" /> and affecting children of migrants and refugees. All these factors increase discrimination faced by minority groups.

In 2022, on the HUDOC platform related to the ECtHR rulings, the word “marginalisation” was used by the Court only in 18 cases on discrimination faced by minority groups.<fnref n="1088" /> If not all cases of discrimination of minority groups are associated with

<footnote n="1080">¹⁰⁸⁰ Joan G Mowat, ‘Towards a New Conceptualisation of Marginalisation’ (2015) 14 Eur. J. Educ. Res. 454, 456.</footnote>

<footnote n="1081">¹⁰⁸¹ Michal Razer, Victor J Friedman and Boaz Warshofsky, ‘Schools as Agents of Social Exclusion and Inclusion’ (2013) 17 Int. J. Incl. Educ. 1152, 1152.</footnote>

<footnote n="1082">¹⁰⁸² Brind, Harper and Moore, ‘Introduction and an Overview of the Marginalisation of Groups in Europe’ (n 1073) 2; Gurung and Kollomair, ‘Marginality: Concepts and Their Limitations’ (n 1073) 10.</footnote>

<footnote n="1083">¹⁰⁸³ Dorothy Bottrell, ‘Resistance, Resilience and Social Identities: Reframing “Problem Youth” and the Problem of Schooling’ (2007) 10 J. Youth Stud. 597.</footnote>

<footnote n="1084">¹⁰⁸⁴ *Garib v The Netherlands* [2017] ECtHR 43493/09.</footnote>

<footnote n="1085">¹⁰⁸⁵ *Sejdić and Finci v Bosnia and Herzegovina* [2009] ECtHR [GC] 27996/06, 34836/06 [37].</footnote>

<footnote n="1086">¹⁰⁸⁶ *Vallianatos v Greece* [2013] ECtHR [GC] 29381/09, 32684/09 [43]; *Oliari v Italy* [2015] ECtHR 18766/11, 36030/11 [190].</footnote>

<footnote n="1087">¹⁰⁸⁷ In the *Horváth case*, the Court highlights how social marginality in Hungary is treated as a handicap. *Horváth and Kiss v Hungary* [2013] ECtHR 11146/11 [74].</footnote>

<footnote n="1088">¹⁰⁸⁸ The following words were put on HUDOC: “minority, marginalization”. Focus was put on Article 14 and the Courts ruling.</footnote>
marginalisation, significantly spatial or social marginalisation at the level of the ECtHR appears
only in 18 cases.

Principally, the Court refers to marginalisation by quoting external reports (UN<fnref n="1089" /> or the US Commission<fnref n="1090" />) in which marginalisation integrates the sociological reality of minority groups discrimination. Only twice, in G.L (2020) and in Oršuš does the Court directly use the concept of marginalisation to support its argument without reference to an international organisation report.<fnref n="1091" /> Judges Yudkivskc<fnref n="1092" /> and Wojtyczek<fnref n="1093" /> in their dissident opinion refer to the concept.

The ECtHR's insufficient and irregular consideration of this concept remains problematic, as over the years the Court has played a major role in the protection of human rights within European countries.<fnref n="1094" /> Recognising marginalisation of minority groups guarantees their visibility in democratic countries.<fnref n="1095" />

Despite a positive evolution in its approach to discrimination, the absence of concern and simultaneous development of marginalisation in its jurisprudence sheds light on the Court's failure to provide visibility to discrimination faced by minority groups. Still, the Court has expanded the ECHR civil and political rights to address issues faced by marginalised groups.<fnref n="1096" />

The Court's difficulty in referring and relying on "marginalisation" seems connected to the concept of intersectionality. In 2022 on the HUDOC platform, the word "intersectionality" appears only once, in relation to minority and Article 14: *Cinta v. Romania* (2020).<fnref n="1097" /> Like

<footnote n="1089">¹⁰⁸⁹ Guberina v Croatia [2016] ECtHR 23682/13 [37].</footnote>

<footnote n="1090">¹⁰⁹⁰ MYH v Sweden [2013] ECtHR 50859/10 [28].</footnote>

<footnote n="1091">¹⁰⁹¹ Oršuš v Croatia (n 177); GL v Italy [2020] ECtHR 59751/15 [69]</footnote>

<footnote n="1092">¹⁰⁹² Judge Yudkivskc argue that the effect of marginalisation would have been less important if the parents had gone in another country. GL v Italy. (n 1101).</footnote>

<footnote n="1093">¹⁰⁹³ Judge Wojtyczek argues simply about the risk of marginalisation. *Oršuš v Croatia* (n 177).</footnote>

<footnote n="1094">¹⁰⁹⁴ Stephen Livingstone and Colin Harvey, ‘Protecting the Marginalised: The Role of the European Convention on Human Rights’ (2019) 70 NILQ 51, 446.</footnote>

<footnote n="1095">¹⁰⁹⁵ Colin Harvey, ‘Protecting the Marginalized?’, *Judges, Transition, and Human Rights* (OUP 2007) 534.</footnote>

<footnote n="1096">¹⁰⁹⁶ Dia Anagnostou and Susan Millns, ‘Individuals from Minority and Marginalized Groups before the Strasbourg Court: Legal Norms and State Responses from a Comparative Perspective’ (2010) 16 Eur. Public Law 393, 396.</footnote>

<footnote n="1097">¹⁰⁹⁷ *Cînta v Romania* [2020] ECtHR 3891/19.</footnote>
marginalisation, “intersectionality” is used in an external source: the General Comment No. 6 (2018) on equality and non-discrimination of the UN Committee on the Rights of Persons with Disabilities.<fnref n="1098" />

Marginalisation results from several factors leading to discrimination. But marginalisation is already based on intersectionality, and thus linked to discrimination. In his dissident opinion in the *Garib* case, Judge Pinto de Albuquerque, with Judge Vehabović, denounced the Court's failure to consider intersectional discrimination.<fnref n="1099" /> Defending the validity of the concept, Judge Pinto de Albuquerque quoted reports of legitimate human rights bodies such as the CESCR,<fnref n="1100" /> the Committee on Elimination of All Forms of Discrimination against Women,<fnref n="1101" /> the Special Rapporteur on violence against women,<fnref n="1102" /> and further referred to the IACtHR with the *Gonzales Lluy v. Ecuador* case.<fnref n="1103" />

In the famous case *V.C. v. Slovakia* (2011)<fnref n="1104" /> on the forced sterilisation of Romani women in Slovakia, the ECtHR missed an opportunity to acknowledge the multiple layers of discrimination faced by the community, not only in Slovakia, but more notably in Eastern European countries, and the invisibility of distinctive yet converging structures of oppression. Invisibility of sterilisation practices was accentuated by two factors: (i) discrimination based on gendered and ethnic factors in addition to class-based stereotypes; (ii) institutional and social marginalisation.

Primarily, the Court did not regard the historical sterilisation process and discrimination, in addition to its impact on Romani women. During the Third Reich, coercive sterilisation of Romani Women was already a political policy.<fnref n="1105" /> Later (1970-1990s), in Czechoslovakia,

<footnote n="1098">¹⁰⁹⁸ *ibid* 32.</footnote>

<footnote n="1099">¹⁰⁹⁹ *Garib v The Netherlands* (n 1094).</footnote>

<footnote n="1100">¹¹⁰⁰ *ibid* 36.</footnote>

<footnote n="1101">¹¹⁰¹ *ibid*.</footnote>

<footnote n="1102">¹¹⁰² *ibid* 35.</footnote>

<footnote n="1103">¹¹⁰³ *Garib v The Netherlands* (n 1094) [38]; *Gonzales Lluy et al v Ecuador* [2015] IACtHR Preliminary Objections, Merits, Reparations, and Costs, Series C, No. 298.</footnote>

<footnote n="1104">¹¹⁰⁴ *VC v Slovakia* [2011] ECtHR 18968/07.</footnote>

<footnote n="1105">¹¹⁰⁵ Jan Brustad, ‘Forced Sterilisation in Auschwitz-Birkenau’ (*The Norwegian Center for Holocaust and Minority Studies*, 26 February 2016); Henriette Asséo, ‘Le Sort Des Tsiganes En Europe Sous Le Régime Nazi’ (1999) 167 Revue d’Histoire de la Shoah 8.</footnote>
sterilisation was officially promoted for birth control, yet it disproportionately affected Romani women who were the main targets of social workers using financial arguments or threats to cut social benefits.<fnref n="1106" /> Furthermore, the legal advocacy organisation Centre for Reproductive Rights 2003 report, documented patterns of health care providers failure to gain informed consent on sterilisation, and systematic racial discrimination.<fnref n="1107" />

Secondarily, European recommendations and reports<fnref n="1108" /> revealed the lack of national protection for Roma minority, especially during the process of Eastern countries integration into the EU. Yet, none of the reports used by the ECtHR mention social marginalisation, or Romani women’s difficulties to “untangle the complex social, political and economic issues”<fnref n="1109" />. By, ignoring institutional interaction, the Court put aside not only gender perspective, but reduced the “case to the individual level”.<fnref n="1110" />

The V.C. case (2011) was major and fundamental. For the first-time the Court recognised coerced sterilisation as a human right violation at the ECtHR.<fnref n="1111" /> However, it was not only reluctant to highlight violation of Article 14 but did not even regard it as a violation. It linked forced sterilisation to prohibition of torture (Article 3), and the right to respect for private and family life (Article 8). Furthermore, it considered neither the marginalisation of Romani women, nor their discrimination, let alone the intersectionality of factors. Human rights courts cannot isolate forced sterilisation, ethnicity, patriarchy or social oppression. A refusal to consider these elements as relevant to forced sterilisation, and citing lack of objective evidence, to prove an organised policy or racially motivated intention of hospital staff<fnref n="1112" /> legitimised discrimination by ignoring Article 14. It further rendered an oppressive society invisible, and aggravated the marginalisation of communities. Moreover, at the political level, this decision ignored the political climate of discrimination towards Romani women. In 1995, Lubomir Javorsky, the Slovakian health minister declared: “the government will do everything to ensure

<footnote n="1106">¹¹⁰⁶ Siobhan Curran, ‘Intersectionality and Human Rights Law: An Examination of the Coercive Sterilisations of Romani Women’ (2016) 16 ERR 132, 139.</footnote>

<footnote n="1107">¹¹⁰⁷ ‘Body and Soul: Forced Sterilization and Other Assaults on Roma Reproductive Freedom in Slovakia’ (Center for Reproductive Rights and Poradna pre obcianske a l’udské práva, in consultation with Ina Zoon 2003) 15.</footnote>

<footnote n="1108">¹¹⁰⁸ *VC v Slovakia* (n 1114) para 80.</footnote>

<footnote n="1109">¹¹⁰⁹ Angela Kocze and Maria Popa Raluca, *Missing Intersectionality: Race/Ethnicity, Gender, and Class in Current Research and Policies on Romani Women in Europe* (CEU University Press 2009) 9.</footnote>

<footnote n="1110">¹¹¹⁰ Dissenting opinion of Judge Mijovic, *VC v Slovakia* (n 1114).</footnote>

<footnote n="1111">¹¹¹¹ *ibid*.</footnote>

<footnote n="1112">¹¹¹² *ibid* 177.</footnote>
that more white children are born than Romani children”.<fnref n="1113" /> Despite several rulings of the ECtHR, it was only in 2021 that the Slovakian government recognised the forced sterilisation of Romani women.

Human rights’ elaboration and development can counter society’s abuses. Ignoring different factors of oppression, or the angle of intersectionality, limits the judicial interpretation. An unidimensional approach to discrimination and thus marginalisation overlooks the social divisions at work in specific situation. Intersectionality helps understand social and institutional discrimination and underline crucial patterns of human rights violation. The lack of attention to this concept has often been highlighted in cases related to Roma,<fnref n="1114" /> or in the Islamic headscarf jurisprudence.<fnref n="1115" />

## 2.3. Accentuating invisibility: the case of segregated schools

Examining and highlighting marginalisation in Courts not only accentuates the set of factors and their impact on discrimination but renders visible historical, spatial and institutional marginalisation. More importantly, it legally acknowledges the influence of social ideologies and cultural practices on situations affecting minority groups. Recognition of marginalisation shifts legal approaches and methodologies of judges in the ECtHR. It promotes analysis of intersectional forms of exclusion that cover low access to education, employment or healthcare. The difficulty in integrating marginalisation at the level of the judiciary lies at the heart of the problem. Not only is its intersectional nature complex, but more importantly, it is a process and an experience. It includes oppression but also ensues from it.<fnref n="1116" />

The case of Roma children’s segregation in schools illustrates how the ECtHR accentuates invisibility and their marginalisation. Since 2007, a certain number of cases related to segregation of Roma children in school have come before the ECtHR. Segregation within

<footnote n="1113">¹¹¹³ Lindsay Hoyle, ‘V.C. v. Slovakia: A Reproductive Rights Victory Misses the Mark’ (2014) 36 Boston College int. comp. law rev. 17, 19.</footnote>

<footnote n="1114">¹¹¹⁴ Ruth Rubio-Marín and Mathia Möschel, ‘Anti-Discrimination Exceptionalism: Racist Violence before the ECtHR and the Holocaust Prism’ (2015) 26 Eur. J. Int. Law 881.</footnote>

<footnote n="1115">¹¹¹⁵ Ivana Radacic, ‘Gender Equality Jurisprudence of the European Court of Human Rights’ (2008) 19 Eur. J. Int. Law 841; *SAS v France* [2014] ECtHR 43835/11.</footnote>

<footnote n="1116">¹¹¹⁶ JM Hall, ‘Marginalization Revisited: Critical, Postmodern, and Liberation Perspectives’ (1999) 22 ANS. Advances in nursing science 88; Tracey McIntosh, ‘Theorising Marginality and the Processes of Marginalisation’ (2006) 2 *AlterNative: An International Journal of Indigenous Peoples* 44, 46.</footnote>
education has reinforced oppressive power relations, social exclusion, educational disadvantage, and created a circle of marginalisation (figure 1). Despite Court rulings, progress in this field has been limited at the national level.

<figure><img src="image_12.png" /><figcaption>Figure 1: Circle of marginalisation</figcaption></figure>

Children’s segregation often echoes colonial practices or apartheid (South Africa or the U.S). In the U.S, segregation was legalised until the *Brown* ruling (1954) when the SC declared segregation in public schools as unconstitutional.<fnref n="1117" /> However, legalisation of segregated education is not a constant pattern amongst countries practising it. In Eastern and Central Europe, the complexity of marginalisation and discrimination faced by the Roma community often result from neutral government policies or, more precisely, because of their inaction in respecting IHRL. For Roma children, segregation is consequently a result of multiple factors – educational and informal discriminatory policies or residential segregation<fnref n="1118" /> – which have been documented by international organisations and NGOs.<fnref n="1119" />

<footnote n="1117">¹¹¹⁷ *Brown v Board of Education of Topeka County* [1954] SC of the US 347 US 483.</footnote>

<footnote n="1118">¹¹¹⁸ Jack Greenberg, ‘Report on Roma Education Today: From Slavery to Segregation and Beyond’ (2010) 110 Colum. L. Rev 919, 919; 935.</footnote>

<footnote n="1119">¹¹¹⁹ ‘Stigmata: Segregated Schooling of Roma in Central and Eastern Europe’ (European Roma Rights Centre 2004).</footnote>
Discrimination and segregation, thus work hand in glove. Despite the integration of the political protection of minority rights at the EU level through the Copenhagen criteria (respect for and protection of minorities),<fnref n="1120" /> and the implementation of the EU Directive 2000/43/EC (Race and Equality Directive), which resulted in a ministerial order legally prohibiting segregation in schools in Bulgaria,<fnref n="1121" /> Hungary,<fnref n="1122" /> Slovakia,<fnref n="1123" /> and in Romania,<fnref n="1124" /> discriminatory practices continued. Difficulties arose in Eastern European countries concerning the implementation of mechanisms related to discriminatory practices.

At the level of the ECtHR, cases related to Roma children's segregation, discrimination and consequently marginalisation, underline two elements: (i) in practice, the idea that segregation translates into one school for each ethnic group does not work entirely for Roma children; and (ii) in theory the Court should highlight the failure of national measures to end segregation, indicate the role played by national institutions, and formulate clear obligations for State authorities.

Under the violation of the right to education (Article 2 of Protocol 1), in relation to Article 14, three principal of segregation cases can be found.

One consists of special schools for children with disabilities. In *DH v. Czech Republic* (2007), data presented to the Court proved that in Ostrava city, 56% of Roma children were in special schools, whilst overall they represented 2.26% of the city's primary school students. On the contrary, only 1.8% of non-Roma children were in special schools. Applicants argued that Roma children were 27 times more likely to be sent to a special school.<fnref n="1125" /> In addition, placement in these schools was based on tests measuring the “child’s intellectual capacity”.<fnref n="1126" />

<footnote n="1120">¹¹²⁰ ‘Accession Criteria’ (*European Commission*).</footnote>

<footnote n="1121">¹¹²¹ Protection Against Discrimination Act, 2003.</footnote>

<footnote n="1122">¹¹²² CXXV Act 2003 on the Promotion of Equal Treatment and Equal Opportunities.</footnote>

<footnote n="1123">¹¹²³ Schools Act, 2008.</footnote>

<footnote n="1124">¹¹²⁴ Ministerial Order 1540/2007.</footnote>

<footnote n="1125">¹¹²⁵ *DH v the Czech Republic* (n 147) para 18.</footnote>

<footnote n="1126">¹¹²⁶ *ibid* 16.</footnote>
The Court referred to the Council of Europe's doubts concerning these tests,<fnref n="1127" /> as well as the U.S SC ruling, *Griggs v. Duke Power*, which pointed to the discriminatory effect of such tests.<fnref n="1128" /> In this case the Court underlined indirect discrimination. In *Horváth and Kiss* (2013), it went further and held that diagnosing two complainants as disabled and sending them to a school for the mentally disabled, was discriminatory towards Roma children.<fnref n="1129" /> This judgment was unique as the Court explicitly mentioned the State's positive obligations to address and undo a history of racial segregation in special schools.<fnref n="1130" />

The second group separates classes within schools. In 2008, in the *Sampanis* case, the Court, basing itself on the same article as in the *DH* case (right to an education, and prohibition of discrimination) and Article 13 (right to an effective remedy) argued that putting children in an annex building of the school following protests from non-Roma parents was a violation of the Convention.<fnref n="1131" /> Segregation was here based on ethnic origins and racism.<fnref n="1132" /> Despite the Court ruling in 2008, in 2012 the Court once more issued a decision related to distinctive class, which was defended as a means of avoiding social, cultural and educational problems.<fnref n="1133" /> The ECtHR recommended enrolment in another State school, and enrolment in second chance school for those above 18 years old.<fnref n="1134" /> Separation of classes was also a core element in the *Oršuš* case where children who lacked knowledge of the Croatian language were put in different classes. However, it was only Roma children who were sent to these classes. Moreover, Roma children were not offered classes to learn Croatian, and their program had 30 % less content compared to non-Roma curriculum classes. Qualitative differences in the curriculum were also found in the *DH* case, which also had unqualified teachers.<fnref n="1135" /> The *Oršuš* case revealed divisions on the absence of Article 14 violation along with Article 2 of Protocol 1. For Judges Jungwiert, Vajić, Kovler, Gyulumyan, Jaeger, Myjer, Berro-Lefèvre and Vučinić, this separation did not prevent

<footnote n="1127">¹¹²⁷ *DH v the Czech Republic* (n 147).</footnote>

<footnote n="1128">¹¹²⁸ *Griggs v Duke Power Co* [1971] SC of the US 401 US 424.</footnote>

<footnote n="1129">¹¹²⁹ *Horváth and Kiss v Hungary* (n 1097)</footnote>

<footnote n="1130">¹¹³⁰ *ibid* 127.</footnote>

<footnote n="1131">¹¹³¹ *Sampanis v Greece* [2008] ECtHR 32526/05.</footnote>

<footnote n="1132">¹¹³² *ibid* 63.</footnote>

<footnote n="1133">¹¹³³ *Sampanis v Greece* [2012] ECtHR 59608/09.</footnote>

<footnote n="1134">¹¹³⁴ *ibid*.</footnote>

<footnote n="1135">¹¹³⁵ G Hobcraft, 'Roma Children and Education in the Czech Republic: DH v Czech Republic: Opening the Door to Indirect Discrimination Findings in Strasbourg'' (2008) 2 Eur. Hum. Rights Law Rev 245, 246.</footnote>
Roma children from accessing education or reaping its benefits.<fnref n="1136" /> They argued that the case led to another judgement on the question of the Roma minority and not on the right to education itself.<fnref n="1137" />

Finally, geographical criteria played a role. Residential segregation led non-Roma parents to remove their children from specific schools precisely because of their high percentage of Roma children.<fnref n="1138" /> The difficulty in the *Lavida* case (2013) related to “white flight” practices, displayed in the absence of Greece’s intention to discriminate Roma children.<fnref n="1139" /> However, the Court argued that the State’s refusal or inability to establish anti-segregation measures led to the violation of Article 14 and of the right to education.

Segregationist policies in education build marginalisation and systemic discriminatory practices and policies. They affect the right to education and the right to dignity both protected by IHRL. At the collective level, such practices and policies accentuate stigmatisation already faced by Roma, deprive them of educational and employment opportunities, reinforce marginalisation, diminish their presence at the social and political levels, and more importantly, weaken their ability to protect themselves from the violation of their other rights.<fnref n="1140" />

Significant contributions were made in the field of direct and indirect discrimination, through these cases or by developing positive obligations. However, despite landmark decisions related to segregation faced by Roma children in schools, the Court did not mention the impact of violating the right to education through practices that trivialise marginalisation such as school dropouts and low employment opportunities.

Ending school segregation favours the right to education, and is a significant step towards ending the circle of marginalisation. The Court can restore the right to education through these landmark cases, but it does not recognise, nor mention marginalisation of these communities

<footnote n="1136">¹¹³⁶ Oršuš v Croatia (n 177) para 11.</footnote>

<footnote n="1137">¹¹³⁷ ibid 15.</footnote>

<footnote n="1138">¹¹³⁸ Kalina Arabadjieva, ‘Challenging the School Segregation of Roma Children in Central and Eastern Europe’ (2016) 20 Int. J. Hum. Rights 33, 34; *Szolcsán v Hungary* [2023] ECtHR 24408/16.</footnote>

<footnote n="1139">¹¹³⁹ *Lavida v Greece* [2013] ECtHR 7973/10.</footnote>

<footnote n="1140">¹¹⁴⁰ Iulius Rostas and Anita Danka, ‘Setting the Roma Policy Agenda: The Role of International Organizations in Combating School Segregation’, *Ten Years After: A History of Roma School Desegregation in Central and Eastern Europe* (Central European University Press 2012) 53.</footnote>
that is at the heart of segregation, and thus neglects the overall picture comprising a complexity intersection of factors. Showing the significance of age and ethnicity as determining marginality or ignoring social categories of exclusion, the Court fails to recognise that children are affected more strongly by such practices.<fnref n="1141" />

The absence of a definition of segregation does not help.<fnref n="1142" /> Nor does the failure to recognise difference between discrimination in the lower quality of education, though inferior curriculums, or segregation as a human right issue. In sum, the Court does not distinguish between physical segregation of Roma from non-Roma children.

To date the lack of progress in the recognition of marginalisation remains problematic at the level of the European human rights system. Despite the integration of external reports, or *Amicus Curiae* underlying marginalisation issues,<fnref n="1143" /> the Court has still to integrate this concept in its reasoning. The dissident opinion of Judges in the *Oršuš* case, underlines the importance of considering marginalisation. For them, segregation was justified with the argument of a stable environment encouraging Roma children to develop the necessary linguistic skills.<fnref n="1144" /> However, the *Oršuš* case highlights how the Court uses other concepts to underline the necessity of paying special attention to minority “needs and their different lifestyle” through the concept of vulnerability.<fnref n="1145" />

**3. The concept of vulnerability and its application to minority groups**

Lately, the use of vulnerability has increased in human rights. The concept is used in the 2011 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights

<footnote n="1141">¹¹⁴¹ Noam Peleg, ‘Marginalisation by the Court: The Case of Roma Children and the European Court of Human Rights’ (2018) 18 Hum. Rights Law Rev. 111, 17.</footnote>

<footnote n="1142">¹¹⁴² *DH v the Czech Republic* [2007] ECtHR [GC] 57325/00 [54–80; 103–104].</footnote>

<footnote n="1143">¹¹⁴³ *Oršuš v Croatia* (n 177) para II-B-3</footnote>

<footnote n="1144">¹¹⁴⁴ Joint partly dissenting opinion of Judges Jungwiert, Vajić, Kovler, Gyulumyan, Jaeger, Myjer, Berro-Lefèvre and Vučinić, *Oršuš v Croatia* (n 177).</footnote>

<footnote n="1145">¹¹⁴⁵ ibid 148.</footnote>
while integrating factors such as socio-economic status, race, geographical location, beliefs or historical background.<fnref n="1153" />

Such an interdisciplinary use of the concept has expanded its understanding. Initially perceived as undergoing physical harm, it came to include psychological and moral suffering.<fnref n="1154" /> In concrete terms, therefore, vulnerability refers to the way specific individuals are exposed to human rights' threats.

### 3.1.2. *A multiplicity of layers*

Often, concepts such as marginality or vulnerability, are rendered complex due to the constant evolution of individuals' experiences over time, and their shifting exposure to everyday risks such as violence, sickness, or large scale events (civil war or climate change).<fnref n="1155" /> Due to the interactions between these two different scales (the everyday and the macro) it becomes necessary to understand “vulnerable individuals” through their situations, rather than their position in a specific category. The generalisation that vulnerable individuals are part of specific groups may reside in the very concept of vulnerability. Much like discrimination, vulnerability is often composed of different layers. Therefore, its analysis call for a broader understanding, of its occurrence in several spheres.

Viewed in the light of these considerations, four characteristics of vulnerability emerge: firstly, it is a *potential* concept, as it refers to a possibility; secondly, it is objective as the threat is established objectively; thirdly it is subjective, as its evaluation depends on individual vulnerability; finally, it is a relational concept, since two entities are required for it to manifest.<fnref n="1156" />

<footnote n="1153">¹¹⁵³ David Mechanic and Jennifer Tanner, 'Vulnerable People, Groups, And Populations: Societal View' (2007) 26 Health Aff. 1220.</footnote>

<footnote n="1154">¹¹⁵⁴ BS Turner, 'Vulnerability' in W A; Darity (ed), *International encyclopedia of the social sciences*, vol 8 (Macmillan Reference USA 2008).</footnote>

<footnote n="1155">¹¹⁵⁵ Benjamin Wisner, 'Vulnerability as Concept, Model, Metric, and Tool' [2016] Oxford Research Encyclopedia of Natural Hazard Science.</footnote>

<footnote n="1156">¹¹⁵⁶ Samantha Besson, 'La Vulnérabilité et La Structure Des Droits de l'homme : L'exemple de La Jurisprudence de La Cour Européenne Des Droits de l'homme', *La vulnérabilité saisie par les juges en Europe* (Pedone 2014) 60.</footnote>
Understanding or analysing vulnerability from a legal point view is central to comprehending patterns of discrimination. However, at the international level no definite categories of vulnerable groups seem to exist.<fnref n="1157" /> The establishment of specific international conventions in relation to particular groups may indicate the will of States and international human rights legal experts to protect and accord special attention to the risk of vulnerability they may face. Consequently, vulnerability categories can include: age, sex or gender, ethnicity, health status, liberty status, and other statuses, which correspond to asylum seekers, deportees or refugees.<fnref n="1158" /> In the Indian case, the Rajasthan High Court pointed out the vulnerability of women in society irrespective of their social position, and therefore the need for special provisions.<fnref n="1159" /> Under the sphere of IHRL, vulnerability and the term vulnerable are used to refer to and describe parts of the population who should be beneficiaries of extra care and attention.<fnref n="1160" /> Often, social and systemic discrimination render individuals vulnerable, thus calling for affirmative action. The evolution of the ECtHR ruling on prohibition of non-discrimination, also includes affirmative action. It took the Court longer, in comparison to the Court of Justice of the EU (CJEU), to allow positive action in this field.<fnref n="1161" /> For instance the ECtHR uses Article 3 of the ECHR in relation to migrants’ vulnerability and extends the scope of positive obligations to the socioeconomic sphere.<fnref n="1162" />

"Human vulnerability" is the result of a combined physical and social vulnerability of individuals in a precise social, economic and political system.<fnref n="1163" /> This often leads to establish a relation between vulnerability, poverty and inequality. Vulnerability is understood as the lack of access to resources and power to recover or face risks or the impact of disasters.<fnref n="1164" /> On the

<footnote n="1157">1157 Alexander HE Morawa, ""Vulnerability" as a Concept in International Human Rights Law" (2003) 10 J. Int. Relat. Dev. 139, 139.</footnote>

<footnote n="1158">1158 ibid 141.</footnote>

<footnote n="1159">1159 *Priyanka Sharma v State (Panchayati Raj Dep)* [2013] Rajasthan High Court WP(C) [514].</footnote>

<footnote n="1160">1160 Hennebel and Tigroudja, *Traité* (n 149) para 10.</footnote>

<footnote n="1161">1161 Samantha Besson, 'Evolutions in Non-Discrimination Law within the ECHR and the ESC Systems: "It Takes Two to Tango in the Council of Europe"' (2012) 60 Am J Comp Law 147, 174.</footnote>

<footnote n="1162">1162 Timmer and others, 'The Potential and Pitfalls of the Vulnerability Concept for Human Rights' (n 110) 194.</footnote>

<footnote n="1163">1163 M Pelling, *The Vulnerability of Cities: Natural Disasters and Social Resilience* (Earthscan 2003) 5.</footnote>

<footnote n="1164">1164 Helen Forbes-Mewett and Kien Nguyen-Trung, 'Defining Vulnerability' [2019] Vulnerability in a Mobile World 5, 17.</footnote>
one hand poverty is perceived as a temporary factor, on the other, vulnerability is a permanent state of individuals' as they are vulnerable to external threats.<fnref n="1165" />

### 3.1.3. Marginalisation and vulnerability

Marginality often goes hand in hand with the concept of vulnerability as it increases the possibility of victimisation of minority groups. In fact, vulnerability is often more visible when it overlaps with spatial and societal marginality resulting from historical background, minority status or ethno-cultural characteristics that make already marginal minority groups even more vulnerable.

The link between these two concepts rests on defining vulnerability principally as a lack of access to resources.<fnref n="1166" /> Four factors have been identified to understand the different reasons creating vulnerability: (i) poverty, marginality and poor access to resources; (ii) dependency on resources; (iii) inequality and marginalisation; (iv) inadequacy of institutional structures to build up resilience.<fnref n="1167" /> These elements accentuate the role of society and social systems in creating vulnerability. Vulnerability, even though it interacts with different concepts, is thus a clear outcome of social construction.

## 3.2. Protecting vulnerable groups

Despite the increasing use of vulnerability in research fields and in contemporary practices of IHRL, the ECtHR rulings does not at first glance, seem to clearly promote its use<fnref n="1168" />. Concepts of vulnerability, marginality and even discrimination are phenomena linked to individuals and social systems, and are strongly connected to politics and law. In short,

<footnote n="1165">¹¹⁶⁵ ibid.</footnote>

<footnote n="1166">¹¹⁶⁶ WN Adger and PM Kelly, 'Social Vulnerability and Resilience' in WN Adger, PM Kelly and NH Ninh (eds), *Living with Environmental Change: social vulnerability, adaptation and resilience in Vietnam* (Routledge 2001) 22.</footnote>

<footnote n="1167">¹¹⁶⁷ Forbes-Mewett and Nguyen-Trung, 'Defining Vulnerability' (n 1174) 22.</footnote>

<footnote n="1168">¹¹⁶⁸ Besson, 'La Vulnérabilité et La Structure Des Droits de l'homme : L'exemple de La Jurisprudence de La Cour Européenne Des Droits de l'homme' (n 1166) 61.</footnote>
vulnerability poses the question of individuals relations with the environment and thus with the
society they inhabit.

The difficulty in considering vulnerability may reside in the analytical structure of human
rights, composed of three principal elements: (i) essential objective interest; (ii) the threat made
in a certain way, leading to individual mandatory protection;<fnref n="1169" /> (iii) protection of individuals
through rights and State obligation imposes a reasonable burden.<fnref n="1170" />

As developed above, vulnerability flows from the usage of threats. Due to the specific
vulnerability of particular groups, “special” rights have been developed to protect individuals
from these threats.

3.2.1. *The uses by the European Court of Human Rights*

This concept appears neither in the ECHR nor in its Protocols. However, the ECtHR does
refer to it in its jurisprudence, and the *Chapman* case (2001) is perceived as the landmark
case.<fnref n="1171" /> In 2022, the word vulnerability appeared in 63 cases, in relation to Article 14 and
minority cases, on the HUDOC platform.<fnref n="1172" /> Thus, in statistics, the Court refers more frequently
to vulnerability than marginalisation. Though the notion surfaced in 1981, it has been used
constantly since 2001,<fnref n="1173" /> and more specifically since the *DH* jurisprudence (2007). The word
appears in cases concerning women,<fnref n="1174" /> pregnant women, adolescents,<fnref n="1175" /> children,<fnref n="1176" /> physical

<footnote n="1169">¹¹⁶⁹ In *Bachpan Bachao Andalon*, the SC underlines the necessity to identify children who are vulnerable and need protection. *Bachpan Bachao Andolan v Union of India* [2011] SC of India WP(C) No.51 OF 2006 [58].</footnote>

<footnote n="1170">1170 Besson, 'La Vulnérabilité et La Structure Des Droits de l'homme : L'exemple de La Jurisprudence de La Cour Européenne Des Droits de l'homme' (n 1166) 63.</footnote>

<footnote n="1171">¹¹⁷¹ *Chapman v the United Kingdom* (n 200).</footnote>

<footnote n="1172">¹¹⁷² The research on HUDOC was based on the Grand Chamber and Chamber rulings, in relation to Article 14.
The words used in the search were: “minority vulnerability”.</footnote>

<footnote n="1173">¹¹⁷³ Besson, 'La Vulnérabilité et La Structure Des Droits de l'homme : L'exemple de La Jurisprudence de La Cour Européenne Des Droits de l'homme' (n 1166) 65.</footnote>

<footnote n="1174">¹¹⁷⁴ *BS v Spain* [2012] ECtHR 47159/08.</footnote>

<footnote n="1175">¹¹⁷⁵ *RR v Poland* [2011] ECtHR 27617/04 [159]; *P and S v Poland* [2012] ECtHR 57375/08 [162].</footnote>

<footnote n="1176">¹¹⁷⁶ *Stubbings v the United Kingdom* [1996] ECtHR 22083/93, 22095/93.</footnote>
and psychologically sick individuals,<fnref n="1177" /> transexuals,<fnref n="1178" /> homosexuals,<fnref n="1179" /> detainees,<fnref n="1180" /> refugees,<fnref n="1181" /> stateless,<fnref n="1182" /> Roma minority,<fnref n="1183" /> individuals with mental disabilities,<fnref n="1184" /> with HIV,<fnref n="1185" /> or asylum seekers.<fnref n="1186" /> Apparently, vulnerability is understood as individuals’ situation<fnref n="1187" /> or status.<fnref n="1188" />

Still, vulnerability is not defined within the ECHR and the ECtHR rulings, even if the Court has identified it in its rulings on categories of vulnerable persons, thus granting them special protection. Markers are based on social disadvantages, historical prejudice stigmatisation by social exclusion and stereotypes.<fnref n="1189" /> These criteria seem to follow a social structure, which counters the Court’s general approach to marginalisation or intersectional discrimination. In the *Kiyutin* case (2011), the Court identified specific categories like gender, ethnic origin, sexual orientation and disability as elements of vulnerability.<fnref n="1190" /> This approach was used in the chamber judgment of *Novruk* (2016),<fnref n="1191" /> and *Guberina* (2016).<fnref n="1192" /> But, it was never employed by the Grand Chamber, which uses vulnerability as an argumentative tool.<fnref n="1193" />

<footnote n="1177">¹¹⁷⁷ Renolde v France [2008] ECtHR 5608/05.</footnote>

<footnote n="1178">¹¹⁷⁸ Christine Goodwin v the United Kingdom (n 1014).</footnote>

<footnote n="1179">¹¹⁷⁹ Dudgeon v the United Kingdom [1981] ECtHR 7525/76.</footnote>

<footnote n="1180">¹¹⁸⁰ Aydin v Turkey [1997] ECtHR [GC] 23178/94.</footnote>

<footnote n="1181">¹¹⁸¹ Hirsi Jamaa v Italy [2012] ECtHR [GC] 27765/09.</footnote>

<footnote n="1182">¹¹⁸² Kurić v Slovenia [2012] ECtHR [GC] 26828/06.</footnote>

<footnote n="1183">¹¹⁸³ Oršuš v Croatia (n 177) para 147; Chapman v the United Kingdom (200) para 96; DH v the Czech Republic (n 147); Yordanova v Bulgaria [2012] ECtHR 25446/06; Horváth and Kiss (n 1097).</footnote>

<footnote n="1184">¹¹⁸⁴ Alajos Kiss v Hungary [2010] ECtHR 38832/06 [42].</footnote>

<footnote n="1185">¹¹⁸⁵ Kiyutin v Russia [2011] ECtHR 2700/10 [64].</footnote>

<footnote n="1186">¹¹⁸⁶ MSS v Belgium and Greece [2011] ECtHR [GC] 30696/09 [251].</footnote>

<footnote n="1187">¹¹⁸⁷ Renolde v France (n 1187) para 83 (case related to detainees' vulnerability).</footnote>

<footnote n="1188">¹¹⁸⁸ MSS v Belgium and Greece (n 1196) para 251 (case related to asylum seekers); Mugenzi c France [2014] ECtHR 52701/09 (case related to refugee status).</footnote>

<footnote n="1189">¹¹⁸⁹ Lourdes Peroni and Alexandra Timmer, 'Vulnerable Groups: The Promise of an Emerging Concept in European Human Rights Convention Law' (2013) 11 Int. J. Const. Law 1056, 1070; *Kiyutin v Russia* (n 1195) para 48.</footnote>

<footnote n="1190">¹¹⁹⁰ *Kiyutin v Russia* (n 1195) para 48.</footnote>

<footnote n="1191">¹¹⁹¹ *Novruk v Russia* (n 1007).</footnote>

<footnote n="1192">¹¹⁹² *Guberina v Croatia* (n 1079).</footnote>

<footnote n="1193">¹¹⁹³ Oddný Mjöll Arnardóttir, 'Vulnerability under Article 14 of the European Convention on Human Rights' (2017) 4 Oslo Law Rev. 150, 164.</footnote>
Thus, the Court retains natural or intrinsic causes. Pregnancy, age or gender, external or circumstantial factors, outcome of migration or detention, are conducive to vulnerability.<fnref n="1194" /> Of course, several causes can combine and lead to an aggravation of individuals’ vulnerability. This was highlighted by the Court in the *Mubilanzila Mayeka* (2006)<fnref n="1195" /> and *Muskhadzhiyeva* case (2010)<fnref n="1196" /> where a child was detained in a detention centre for migrants. In both cases, the Court signaled children’s vulnerability in the same detention centre. Despite the different circumstances, in *Mayeka* the child was detained with his family, and in *Muskhadzhiyeva* the child was detained alone, the Court still maintained the children’s vulnerability. It was also underlined in the *Claes* case (2013) in relation to the inferiority and powerlessness of mentally ill prisoners in psychiatric hospitals.<fnref n="1197" />

Interestingly, with respect to gender/sex discrimination, vulnerability is only seen in the context of gender-based violence. Whenever, observed outside this prism, the Court prefers referring to stereotypes.<fnref n="1198" /> Hence, in the *Khamtokhu* judgement (2017), a life imprisonment sentence could not be given to a woman under 18 or above 65, the Court argued that stereotypes could not justify a difference of treatment.<fnref n="1199" /> Different treatment in this case between men and women’s imprisonment showed up as protection against gender-based violence, abuse and sexual harassment. Despite both parties’ agreeing on women’s vulnerability in prison environment, the ECtHR did not mention the concept. Despite clear categories of individuals or groups considered as vulnerable, there seems to be no clear format when the concept can or should be used.

### 3.2.2. Applying the concept to minority groups

Vulnerability is used for individuals and groups who can be considered minorities. Notwithstanding clarity about who experiences vulnerability, the Court refers indistinguishably

<footnote n="1194">¹¹⁹⁴ Besson, 'La Vulnérabilité et La Structure Des Droits de l'homme : L'exemple de La Jurisprudence de La Cour Européenne Des Droits de l'homme' (n 1166) 70.</footnote>

<footnote n="1195">¹¹⁹⁵ *Mubilanzila Mayeka and Kaniki Mitunga v Belgium* [2006] ECtHR 13178/03 [103].</footnote>

<footnote n="1196">¹¹⁹⁶ *Muskhadzhiyeva v Belgium* [2010] ECtHR 41442/07 [56].</footnote>

<footnote n="1197">¹¹⁹⁷ *Claes v Belgium* [2013] ECtHR 43418/09 [101].</footnote>

<footnote n="1198">¹¹⁹⁸ Mjöll Arnardóttir, 'Vulnerability under Article 14 of the European Convention on Human Rights' (n 1203) 160.</footnote>

<footnote n="1199">¹¹⁹⁹ *Khamtokhu and Aksenchik v Russia* [2017] ECtHR [GC] 60367/08; 961/11.</footnote>
to the concept for individuals and groups. Consequently, no difference is made between
individual or collective vulnerability. This may seem anodyne at first glance, but a deeper look
confirms a real legal problem. Legal acknowledgment and recognition of groups is based on
specific characteristics like gender, religion, beliefs, or language, and these elements can
interact, culminating in multiple and intersectional discrimination, as well as stigmatisation.
Thus, the qualification of groups' vulnerability often calls for an analysis of social structure.
Though NGOs or international organisations (European or the UN)<fnref n="1200" /> often examine social
attitudes towards specific groups, over time the Court has automatically come to recognise the
vulnerability of minority groups like the Roma. This is principally a result of European
recommendations<fnref n="1201" /> and their own history, and their evident social disadvantage as a
vulnerable minority.<fnref n="1202" /> So far, the Court has only considered Roma as vulnerable within the
category of individuals facing ethnic discrimination. In the *Makhashevy* case (2012),<fnref n="1203" /> the
ethnic origin of the Chechen party beaten up by the police raised two questions: first, the
violation of negative obligation not to discriminate; second, the violation of States' procedural
obligation through lack of investigation, questioning the State's positive obligation of due
diligence. The Court considered this a violation of Article 14 and Article 3. Although the Court
held that individuals in custody were in a "vulnerable position" it did not recognize their ethnic
origin as a factor of vulnerability.<fnref n="1204" />

Moreover, Court jurisprudence has granted the qualification of vulnerable groups to asylum
seekers because of their traumatic migratory experience,<fnref n="1205" /> and to mentally disabled persons
having suffered serious discrimination.<fnref n="1206" /> Asylum seekers situation in *M.S.S.*, illustrates the
Court's intention to give special protection to particularly vulnerable populations and declare
Article 3 violation. This case also highlights the Court's practice to weigh the situation's general
structure.

<footnote n="1200">¹²⁰⁰ Salah Sheekh v the Netherlands [2007] ECtHR 1948/04 [140].</footnote>

<footnote n="1201">¹²⁰¹ Recommandation 1203 relative aux Tsiganes en Europe 1993; Recommandation 1557 relative à la situation juridique des Roms en Europe 2002.</footnote>

<footnote n="1202">¹²⁰² *Oršuš v Croatia* (n 177) para 147.</footnote>

<footnote n="1203">¹²⁰³ *Makhashevy v Russia* [2012] ECtHR 20546/07.</footnote>

<footnote n="1204">¹²⁰⁴ ibid 151.</footnote>

<footnote n="1205">¹²⁰⁵ MSS v Belgium and Greece (n 1196) para 232; N.S.K. v the United Kingdom [2022] ECtHR 28774/2 [39].</footnote>

<footnote n="1206">¹²⁰⁶ *Alajos Kiss v Hungary* (n 1194) para 42.</footnote>
This approach to minority groups highlights the Court's inconsistency. On the one hand it continues the historical tradition of viewing the Roma as mentally challenged individuals, on the other it, deals with specific situations of asylum seekers or displaced persons, produced by current circumstances. The ECtHR's approach of indirect discrimination reflects its use of vulnerability to identify categories of individuals and then recategorize them.<fnref n="1207" />

### 3.2.3. *Identification of special vulnerabilities*

First and foremost, the Court protects the *special vulnerability* of individuals or groups,<fnref n="1208" /> by identifying special obligations. It uses the concept of vulnerability to recall State's special positive obligation. It allows the ECtHR to underline the gravity of the violation of States obligations. Yet, it also refers to *general vulnerability*, which leads to a paradoxical conclusion. In *L v. Lithuania* (2007), the ECtHR deduced from this concept a violation of Article 3 (prohibition of torture), and thus created a kind of right to non-vulnerability.<fnref n="1209" />

Recognizing vulnerability from a legal point view and establishing States' obligation to specific individuals and groups marks a positive advance for the Court. Yet, the ECtHR jurisprudence has proved the limits of the Court's reflection on discrimination faced by minority groups. Discrimination often continues historical tradition and social practices that create and perpetuate specific disadvantaged groups. But the Court does not break the circle of discrimination and vulnerability, as it does not always consider the multiplicity and intersectionality of elements caused by the combination of natural elements and external factors. The ECtHR does not reflect on the economic situations, nor on social or cultural origins which also create vulnerability.<fnref n="1210" /> Though not all factors can intersect, and though the Court combines natural and external factors, it does not always take the risk of integrating social attitudes and social discrimination to judge vulnerability. In fact, its reasoning for vulnerability is not applied uniformly for all groups. For instance, the legal reasoning behind Roma vulnerability is not extended to the Chechen ethnic group in Russia. Thus far, the ECtHR has also clearly not considered identity markers. On the contrary, it has focused on the impact of

<footnote n="1207">¹²⁰⁷ *DH v the Czech Republic* (n 147).</footnote>

<footnote n="1208">¹²⁰⁸ *MSS v Belgium and Greece* (n 1196) para 251.</footnote>

<footnote n="1209">¹²⁰⁹ *L v Lithuania* [2007] ECtHR 27527/03 [46].</footnote>

<footnote n="1210">¹²¹⁰ Dimitris Xenos, ‘The Human Rights of the Vulnerable’ (2009) 13 Int. J. Hum. Rights 591, 593–594.</footnote>
association with this identity marker. Certainly, individuals' experiences within the legal group differs.

In addition, the Grand Chamber seems to avoid employing the vulnerability concept, except in specific cases and for groups like Roma children, and their segregation in school. In the *Khamtokhu and Aksenchik ruling* (2017), the Court based itself on classic approaches of discrimination and did not consider vulnerability.1211 It uses this concept to expand the scope of application of specific rights, like Article 14 or Protocol 12. But the Court also mobilizes vulnerability to develop new types of obligations and enlarge its competence. In the context of the prohibition of discrimination, the Court has developed three basic features. With vulnerability, the Court multiplied the categories of possible groups facing discrimination. It added the category of people with handicap in the *Glor* case (2009). In this case, the Court clearly stated the need to “prevent discrimination against people with disabilities and foster their full participation and integration in society”.1212 It implicitly recognized Switzerland’s practice of excluding a group of individuals. In this particular instance, whilst the Court extended the qualification of vulnerability, it remained far from acknowledging their vulnerability. In cases related to individuals with disabilities, the Court limits the States’ MOA thus increasing its cognitive power.1213 In the *Kiyutin* case (2011) on the expulsion of a non-Russian citizen because of his HIV status, the Court argued that in cases where there is a historical discriminatory attitude towards particular vulnerable groups, the States’ MOA is immediately narrower and limited.1214 Here, the Court uses this concept to deal with indirect discrimination. This enables the Court to identify disadvantaged minority groups, particularly in its jurisprudence on the Roma community.1215 Finally, the Court followed the European Committee of Social Rights traditional practice,1216 going further with the establishment of

<footnote n="1211">1211 *Khamtokhu and Aksenchik v Russia* (n 1209).</footnote>

<footnote n="1212">1212 *Glor v Switzerland* [2009] ECtHR 13444/04 [84].</footnote>

<footnote n="1213">1213 Besson, 'La Vulnérabilité et La Structure Des Droits de l'homme : L'exemple de La Jurisprudence de La Cour Européenne Des Droits de l'homme' (n 1166) 74.</footnote>

<footnote n="1214">1214 *Kiyutin v Russia* (n 1195).</footnote>

<footnote n="1215">1215 Mathias Moschel, 'Is the European Court of Human Rights' Case Law on Anti-Roma Violence' Beyond Reasonable Doubt'?' (2012) 12 Hum. Rights Law Rev. 479.</footnote>

<footnote n="1216">1216 Besson, 'Evolutions in Non-Discrimination Law within the ECHR and the ESC Systems: "It Takes Two to Tango in the Council of Europe"' (n 1171).</footnote>
special positive obligations of preventions. This attitude is reflected in its jurisprudence related
to Roma children minority, and their integration within the education system.<fnref n="1217" />

Despite several references to vulnerability, the ECtHR remains discrete on the notion and
its precise criteria. It mentions vulnerability without developing the concept and perceives it
rather as a factual element to observe. However, the purpose of vulnerability is to underline the
complex and deep-rooted situations of discrimination in social contexts.

The Court’s approach is unsatisfactory for the concept imposes specific obligations on States. Vulnerability linked to discrimination allows the Court to consider indirect discrimination, and positive obligations of due diligence. Consequently, not only does it increase State ‘duty’ towards specific groups, but the burden of proof shifts to the State.<fnref n="1218" /> However, categorizing specific groups with identity markers may be a move towards a clear-cut division between groups, and prevent a more general approach to the violation of Article 14.

3.3. The State’s quandary: between vulnerability and due diligence

Vulnerability is today a key concept in IHRL. It appears in ECtHR rulings and has
become a necessary bedrock for judgments.<fnref n="1219" /> The purpose of vulnerability seems to be to
tighten the link between human rights law, its theory and individuals’ experiences.<fnref n="1220" /> From a
judicial perspective, it allows a human-centred approach. It interrogates States obligations and
questions prevailing social attitudes. At the same time, for vulnerable individuals, the label of
vulnerability seems to reinforce stigmatisation, marginalisation and human rights abuses.

<footnote n="1217">¹²¹⁷ Oršuš v Croatia (n 177) para 157; Horváth and Kiss (n 1097) para 102.</footnote>

<footnote n="1218">¹²¹⁸ *Horváth and Kiss* (n 1097) para 108; *JD and A v the United Kingdom* [2019] ECtHR 32949/17; 34614/17 [89].</footnote>

<footnote n="1219">¹²¹⁹ Timmer and others, ‘The Potential and Pitfalls of the Vulnerability Concept for Human Rights’ (110) 191.</footnote>

<footnote n="1220">¹²²⁰ Lourdes Peroni and Alexandra Timmer, ‘Vulnerable Groups: The Promise of an Emerging Concept in European Human Rights Convention Law’ (2013) 11 International Journal of Constitutional Law 1056, 1056–1085.</footnote>
### 3.3.1. The concept of due diligence

On several occasions, the ECtHR mentions State's positive obligation of due diligence.<fnref n="1221" /> Under this principle, States are held responsible for violations committed by non-State actors. States are also considered accountable for acts of private actors if they fail to act with due diligence. States must prevent human rights violation, prosecute and punish perpetrators, and in addition, protect and provide justice for victims.<fnref n="1222" />

At the level of regional courts, this concept was first developed at the IACtHR with the Velasquez Rodriguez case (1988) or enforced disappearances in Honduras. Here, the Court argued for State responsibility in the abduction and disappearance of Angel Manfredo Velasquez Rodriguez, a graduate student. For the Court, the State should ensure the guarantee of rights when these are established, and consequently, the State has an obligation to exercise due diligence to ensure fulfilment of these rights. The Court's legal framework led to the foundation of due diligence standard, which arrived in the ECtHR with the Bevacqua<fnref n="1223" /> and Opuz<fnref n="1224" /> cases over domestic violence. In these two cases, the Court recognised and applied the due diligence standard.

Due diligence depends on the legal recognition of State responsibility for private acts. Although in Osman v. United Kingdom (1998), the ECtHR did not formally use the concept of due diligence, it did outline it.<fnref n="1225" /> This case seemed to be the first step towards an official recognition of State responsibility. It followed the IACtHR and the CEDAW approaches to the question and argued that State can be complicit of human rights abuses by non-State actors. The establishment of State responsibility advanced a precedent that could be used in subsequent cases like in M.C. (2003). In the situation of a woman's rape State positive obligation could be recalled.<fnref n="1226" />

<footnote n="1221">¹²²¹ See: Makhashevy v Russia (n 1213).</footnote>

<footnote n="1222">¹²²² Julie Goldsheid and Debra J Liebowitz, 'Due Diligence and Gender Violence: Parsing Its Power and Its Perils' (2015) 48 Cornell Int. Law J. 301, 302.</footnote>

<footnote n="1223">¹²²³ Bevacqua and S v Bulgaria [2008] ECtHR 71127/01.</footnote>

<footnote n="1224">¹²²⁴ Opuz v Turkey (n 932). See also: Tkhelidze v Georgia [2021] ECtHR 33056/17</footnote>

<footnote n="1225">¹²²⁵ Osman v the United Kingdom [1998] ECtHR [GC] 23452/94.</footnote>

<footnote n="1226">¹²²⁶ M.C. v. Bulgaria (n 171).</footnote>
3.3.2. *From the Inter-American Court of Human Rights to Europe*

Due diligence within the ECtHR appears on the recognition of State responsibility regarding violence against women. In 2002, the Committee of Ministers of the Council of Europe adopted “Recommendation Rec (2002) 5” on the protection of women against violence. Here it clearly articulated the principle of due diligence. It argued that member States should recognise their obligation to exercise due diligence to “prevent, investigate and punish acts of violence”, whether perpetrated by the State or private actors.<fnref n="1227" />

It is in this context that the ruling in two cases *Bevacqua* and *Opuz* became turning points for the ECtHR. In both cases of gender-violence, the Court underlined women’s vulnerability and did not rely on stereotypes as seen above.

In *Bevacqua*, the applicant argued that she had been physically abused by her ex-husband, and faced indifference and delayed action from local law enforcement agencies and the Bulgarian Home Ministry. Before the ECtHR, the application affirmed violations of Articles 3, 8, 13 and 14 by State authorities because of failure to intervene and assist her. In addition to reviewing Bulgarian law, the Court noted the particular vulnerability of victims of domestic violence.<fnref n="1228" /> An analysis of the ECtHR jurisprudence reveals its reactivity to the evolution of IHRL. Indeed, in this case, the Court referred to discussions and acknowledgment surrounding the due diligence principle, such as the 2006 Special Rapporteur Ertürk report on due diligence as a tool for the elimination of violence against women.<fnref n="1229" /> The Special Rapporteur highlighted the multiplied forms of violence towards women, and the intersection of different types of discrimination.<fnref n="1230" /> This led to a consideration of due diligence as different from States’ obligation, to a focus on the State’s role in transforming social values and institutional approaches to gender inequality, and an examination of “shared responsibilities” of the State

<footnote n="1227">¹²²⁷ Recommendation Rec (2002) 5 on the protection of women against violence 2002 para 2.</footnote>

<footnote n="1228">¹²²⁸ *Bevacqua and S v Bulgaria* (n 1233) para 25.</footnote>

<footnote n="1229">¹²²⁹ Yakin Ertürk, ‘Integration of the Human Rights of Women and the Gender Perspective: Violence against Women - the Due Diligence Standard as a Tool for the Elimination of Violence against Women’ (Commission on Human Rights 2006) E/CN.4/2006/61.</footnote>

<footnote n="1230">¹²³⁰ ibid 2.</footnote>
and private actors.<fnref n="1231" /> Despite the Court's taking account here of women's vulnerability in a situation of gender-based violence, it did not see this as a discriminatory practice. Even though the Bulgarian criminal code distinguishes between prosecution in an attack on a woman in the street and at home, the latter is being seen a private matter. In terms of protection of women, the Court considered their vulnerable position as a result of discriminatory practices and attitudes. Judicial and institutional institutions like the ECtHR despite advancing the concept of vulnerability, failed to protect gender-based violence and discrimination faced by women under Article 14.

In *Opuz*, the ECtHR recognised State failure to exercise due diligence in gender-based discrimination practices,<fnref n="1232" /> or to provide effective protection measures or prosecution. The lack of legally enforced protection from gender-based violence inflicted on a woman by her husband led to the applicant's mother's death. The applicant argued for the violation of Article 2 (right to life), Article 3 (prohibition of torture) and Article 14 due to inadequate response of law enforcement resulting from a gender-based discrimination. The Court followed the same approach as in *Bevacqua*. It reviewed the relevant Turkish legislation, referred once more to Special Rapporteur Ertürk's report, and its conclusion concerning the customary international aspect of due diligence.<fnref n="1233" /> Contrary to *Bevacqua* case arguments, in *Opuz*, the Court recognised that the violation of the State's positive obligation of due diligence led to the violation of Article 14 through the angle of gender-based discrimination. *Opuz* remains a landmark case, not only because of the application of due diligence, but more significantly, because the Court recognized the high risk of domestic violence women face. Since Turkey did not provide protection against victims of domestic violence, the State failed to exercise due diligence, and consequently violated Article 14.

Subsequently, in both cases, the Court did make a significant progress with the establishment and articulation of the due diligence principle for cases of gender-based violence and discrimination. It gave binding legal authority to the principle of due diligence within the jurisdiction of the Court, and settled references for this principle and vulnerability.<fnref n="1234" />

<footnote n="1231">¹²³¹ *ibid* 6.</footnote>

<footnote n="1232">¹²³² *Opuz v Turkey* (n 932) para 149.</footnote>

<footnote n="1233">¹²³³ *ibid* 79.</footnote>

<footnote n="1234">¹²³⁴ Lee Hasselbacher, ‘State Obligations Regarding Domestic Violence: The European Court of Human Rights, Due Diligence, And International Legal Minimums of Protection’ (2010) 8 JHR 190, 215.</footnote>
3.3.3. A key to the concept of vulnerability

Recognising vulnerability is a key challenge for individual protection. Clearly identifying
vulnerable groups or individuals through Court jurisprudence is a first step towards greater
protection, and perhaps also a move to address stereotypes within society that lead to
discriminatory practices and legislation. Fixing such categories of individuals calls for greater
State obligation towards their protection. The Court and human rights advocates have
consequently increased the use of due diligence standard as a tool to address discriminatory
practices towards minority groups. This approach emphasizes the importance for States to re-
organise their national structure through legislation, policies and practices to prevent abuses of
minority groups, and more specifically of vulnerable individuals. For the ECtHR, this translates
human rights treaties from pure theory to practice.<fnref n="1235" />

Due diligence was clearly constructed as a tool for the Court to recall States’ duty to protect vulnerable individuals. Yet, a difficulty resides in this standard as it was not “created” to address specific structural discriminatory practices. In recalling States obligation or pointing out wrongful legislation or institutional behaviours, due diligence standard does have a positive impact. However, it remains limited because of Court attitudes towards discrimination as an *ensemble*.

Still, regarding cases of minority groups, except for gender-based violence towards women, due diligence is rarely used in the jurisprudence. For example, this standard is not employed in Roma children’s segregation in school and the jurisprudence quoted earlier. In theory, due diligence standard coupled with concepts like vulnerability or discrimination, is a decisive tool to change national structures and practices. It reminds States of their duty and obligation. Yet, in practice, the use of this standard is light, no doubt because of the possible implications for the State.

<footnote n="1235">1235 Paulo de Tarso Lugon Arantes, ‘The Due Diligence Standard and the Prevention of Racism and Discrimination’ (2021) 68 NILR 407, 412.</footnote>
**4. Conclusion**

The Indian case highlighted the danger of integrating political programs within the judiciary, the ECtHR's analysis proves how historical and social contexts are key factors to understanding human rights violation within national frameworks. Yet, these elements are not used as a justification for Article 14 violation. They do however serve to recognise the limits of practices or institutional silence, and indicate their passage into legal terminology. They further bring out the legal awareness and use of intersectional factors. In fact, through this approach to minority groups, the ECtHR application of international law reinforce the idea that social movements are not considered to recall States of their obligations under the Convention.
**Chapter 8. A comparison with the Inter-American Court of
Human Rights**

Created in 1948, the Organisation of American States (OAS) set up the IAHRS, to provide
legal, institutional and political tools in the region as guarantees of human rights protection on
the American continent. Composed of two main organs – the IACmHR and the IACtHR – the
IAHRS played an important role in the period of dictatorship and civil wars in South and
Central America. Its rulings recalled States’ obligations under IHRL.<fnref n="1236" />

Human rights protection is organised within the OAS under several legal instruments such as the Charter of the OAS, which establishes the IACmHR through Article 51 of the Charter, the American Declaration on the Rights and Duties of Man or the American Convention on Human Rights (ACHR). The ACHR remains the principal human rights treaty in the OAS. Article 33 of the Convention empowers the Commission and the Court,<fnref n="1237" /> and ensures State compliance with the rights outlined in the Convention. Like the ECHR, the Convention protects human rights such as the right to life, fair trial, personal liberty, prohibition of discrimination, etc.

Despite being inspired by the ECHR or the ICCPR,<fnref n="1238" /> the ACHR founders did not replicate these conventions mainly due to the differences on human rights violations between these two regional systems.<fnref n="1239" /> This prompted the IAHRS to take account of cultural and historical events and attitudes that shaped the specific legal backgrounds in the different States. Thus, they responded to regional challenges like dictatorship and minority group’s struggles. This approach created a major difference between the IACtHR and the ECtHR on minority groups and discrimination. In time, this produced a difference in the qualitative structure of both systems. Understanding the IACtHR analysis of minority groups sheds light on three specific dimensions: (i) the Convention’s approach to discrimination; (ii) the Court’s views on

<footnote n="1236">1236 Par Engstrom, ‘Introduction: Rethinking the Impact of the Inter-American Human Rights System’ in Par Engstrom (ed), The Inter-American Human Rights System (Palgrave Macmillan 2019) 2.</footnote>

<footnote n="1237">1237 The IACmHR has thus jurisdiction over all OAS States, whilst the Court does only towards ACHR parties.</footnote>

<footnote n="1238">1238 The influence of UN Conventions is underlined in Article 1 of the ACHR, as most international conventions use Article 1 to establish general obligations and the right to non-discrimination.</footnote>

<footnote n="1239">1239 Jo M Pasqualucci, The Practice and Procedure of the Inter-American Court of Human Rights (2nd edn, Cambridge University Press 2013) 4.</footnote>
specific cultural and historical features of minority groups; and finally (iii) a reflection on the
Court's role in promoting long-term protection of minority groups in States' judicial system.

# 1. Article 1 of the American Convention on Human Rights

The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.<fnref n="1240" />

## 1.1. The relevance of Article 1.1 of the Convention

Article 1§1 of the ACHR, entitled “obligation to respect rights” establishes States general duty to respect the substantive rights listen in the Convention, and ensure them without any discrimination. This first article lays down the importance of enjoying and exercising the rights protected in the ACHR as not only universal but applicable to “all persons”.

Further, it promotes the subsidiarity principle under which States are the primary authority responsible for protecting individuals' human rights in their national legal systems.<fnref n="1241" /> States, and therefore domestic legal systems, are duty-bound to ensure respect, and guarantee rights recognised in the Convention. In case of State failure to protect individual rights, the ACHR and the IAHRS organs (IACmHR and IACtHR) complement national laws by redressing human rights violations.<fnref n="1242" /> However, the Convention does not, either in Article 1§1 nor in other articles, indicate how the ACHR should be incorporated to the domestic legal system, nor

<footnote n="1240">¹²⁴⁰ Article 1§1 ACHR.</footnote>

<footnote n="1241">¹²⁴¹ López Soto v Venezuela [2018] IACtHR Fondo, Reparaciones y Costas, Series C, No. 362 [127].</footnote>

<footnote n="1242">¹²⁴² Acevedo-Jaramillo v Peru [2006] IACtHR Preliminary Objections, Merits, Reparations and Costs, Series C, No. 157.</footnote>
clarify its position within the constitutional order. It is the States' duty to determine its position in its own legal system.<fnref n="1243" />

The position of these rights highlights the approach to protect human rights on the American continent, and more specifically, elucidates the IAHRS' philosophical and legal approach.

To begin with, Article 1§1 importance was emphasised as crucial in the Court's first case, *Velasquez (1988), under which the IACtHR indicated the very essence of this article in recognising human rights violation.*<fnref n="1244" /> Interestingly, any violation of the ACHR rights automatically implies violations of Article 1§1,<fnref n="1245" /> and it cannot be breached in and of itself. It is a general rule which applies to all the provisions of the treaty and thus, a discriminatory practice is *per se* incompatible with the Convention.<fnref n="1246" /> However, akin to Article 14 of the ECHR, Article 1§1 of the ACHR is conditional, and consequently is not an independent article.<fnref n="1247" /> Article 1§1's violation leads to violation of Article 2, which relates to States' obligation to harmonise national norms with the Convention.<fnref n="1248" /> Consequently, this article is the cornerstone of Member States' national duties and responsibilities.<fnref n="1249" />

Next, this significant position depends equally on the *pacta sunt sevanda* principle, which legally obliges States to respect the content of the Convention. Not only does it prevent arbitrary behaviour, but States must also fulfil the treaty's obligation in good faith.<fnref n="1250" /> The establishment

<footnote n="1243">¹²⁴³ Enforceability of the Right to Reply or Correction (Arts 14(1), 1(1) and 2 American Convention on Human Rights) [1986] IACtHR Advisory Opinion OC-7/85, Series A, No. 7 [33].</footnote>

<footnote n="1244">¹²⁴⁴ *Velasquez Rodriguez v Honduras* (n 204) para 164.</footnote>

<footnote n="1245">¹²⁴⁵ ibid 162.</footnote>

<footnote n="1246">¹²⁴⁶ *Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica* (n 710) para 53; *San Miguel Sosa et al v Venezuela* [2018] IACtHR Merits, Reparations, and Costs, Series C, No. 348 [110]; *Guevara Díaz v Costa Rica*, [2022] IACtHR Fondo, Reparaciones y Costas, Series S, No. 453 [47].</footnote>

<footnote n="1247">¹²⁴⁷ Mwakagali, 'International Human Rights Law and Discrimination Protections: A Comparison of Regional and National Responses' (n 129) 54; *Apitz Barbera (First Court of Administrative Disputes) v Venezuela* (n 845) para 209.</footnote>

<footnote n="1248">¹²⁴⁸ Concurring opinion A.A, Cancado Trinidade Caballero-Delgado and Santana [1997] IACtHR Series C, No. 31.</footnote>

<footnote n="1249">¹²⁴⁹ Gonzalo Sánchez de Tagle, 'The Objective International Responsibility of States in the Inter-American Human Rights System' (2015) 7 Mex. Law Rev. 115.</footnote>

<footnote n="1250">¹²⁵⁰ II Lukashuk, 'The Principle Pacta Sunt Servanda and the Nature of Obligation Under International Law' (1989) 83 AJIL 513, 513.</footnote>
of general obligations to respect and ensure human rights reflects this standard, and makes the Convention a legally binding instrument.<fnref n="1251" /> Once more inclusion of the right to non-discrimination within this article is not anodyne, and underlines the connection between this right and each right of the Convention.

Then, from a structural perspective, Article 1§1 is divided into four parts: (i) establishment of positive (“ensure”) and negative (“respect”) obligations; (ii) individuals protected by the Convention (“all persons”); (iii) jurisdiction; and (iv) conditions of State responsibility. This structure echoes Article 2§1 of the ICCPR and the good faith principle.<fnref n="1252" /> Furthermore, under this framework, States are considered responsible for human rights violation of non-State actors, and thus it also advances the principle of due diligence.<fnref n="1253" /> In *The Last Temptation of Christ* case (2001), the Court recalled the engagement of State responsibility to acts committed by any “power or organ of the State”.<fnref n="1254" /> The State is thus considered responsible for failing to act in a manner consistent with its positive obligations, not only for non-State actors, but also for the executive, legislative and judicial branches, and more generally, for the acts of its agents abusing their official capacity to commit human rights violation.<fnref n="1255" />

## 1.2. Article 1.1 in comparison to the other articles of the Convention

The 1969 ACHR consolidates personal liberty and social justice within a democratic institutional structure. These rights are based not on the individual's nationality, but on “attributes of the human personality” (“los atributos de la persona humana”).<fnref n="1256" />

<footnote n="1251">¹²⁵¹ ‘General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant’ (HRC 2004) CCPR/C/21/Rev.1/Add. 13 para 3.</footnote>

<footnote n="1252">¹²⁵² Hennebel and Tigroudja, *A Commentary* (n 168) 21.</footnote>

<footnote n="1253">¹²⁵³ Velasquez Rodriguez v Honduras (n 204) para 172; Suárez Peralta v Ecuador [2013] IACtHR Preliminary Objections, Merits, Reparations, and Costs, Judgment, Series C, No. 261 [129].</footnote>

<footnote n="1254">¹²⁵⁴ “The Last Temptation of Christ” (Olmedo Bustos et al) v Chile [2001] IACtHR Merits, Reparations and Costs, No. 73 [72]; *Integrantes y Militantes de la Unión Patriótica v Colombia* [2022] IACtHR Excepciones Preliminares, Fondo, Reparaciones y Costas, Series C, No. 455 [256].</footnote>

<footnote n="1255">¹²⁵⁵ Garrido and Baigorria v Argentina [1996] IACtHR Merits, Series C, No. 26 [170]; Kawas-Fernández v Honduras [2009] IACtHR Merits, Reparations and Costs, No. 196 [85]; *Integrantes y Militantes de la Unión Patriótica v Colombia* (n 1264) para 262.</footnote>

<footnote n="1256">¹²⁵⁶ Preambule ACHR.</footnote>
Divided in three parts – general obligations, civil and political rights, and economic, social and cultural rights – the ACHR, despite an absence of definition, advances the right to non-discrimination in Articles 1§1, 24 (right to equal protection) and 27.

The main difference between these articles is found in the general obligation contained in Article 1§1.<sup>1257</sup> This Article establishes what a general obligation is and the role of discrimination therein: if a State fails to comply with this article it will be held internationally responsible.<sup>1258</sup> Consequently, there is an “inseparable link” between Article 1§1 obligation and the principle of non-discrimination.<sup>1259</sup> On the contrary, Article 24, which is self-governing, prohibit discrimination not only in association with the rights found in the ACHH but also with laws passed by States and their enforcement.<sup>1260</sup> Despite key difference between these two articles, the Court and the ACHR understand that non-discrimination flows from equality,<sup>1261</sup> and the IACtHR uses the expression “principle of equality and non-discrimination”. Both are considered central and fundamental axis for the IAHRS.<sup>1262</sup> However, non-discrimination in Article 24, as opposed to Article 1§1, is not developed in the sense that no grounds are established to understand how a difference of treatment becomes discriminatory. Thus, the Court mainly uses Article 1§1 and IHRL to clarify Article 24.<sup>1263</sup> Despite big differences, the Court developed a jurisprudence related to the right to non-discrimination through Articles 1§1 and 24 of the Convention.<sup>1264</sup> The San José judges used the theory of positive obligations, which through the indigenous question helped the Court to develop this approach in cases related to

<footnote n="1257">1257 Flor Freire v Ecuador [2016] IACtHR Preliminary Objection, Merits, Reparations, and Costs, Series C, No. 315 [112].</footnote>

<footnote n="1258">1258 Duque v Colombia [2016] IACtHR Preliminary Objections, Merits, Reparations, and Costs, Series C, No. 310 [94]; Gender identity, and equality and non-discrimination of same-sex couples [2017] IACtHR Advisory Opinion OC-24/17, Series A, No. 24 [63].</footnote>

<footnote n="1259">1259 Gender identity, and equality and non-discrimination of same-sex couples, Advisory Opinion OC-24/17 (n 1268) para 63.</footnote>

<footnote n="1260">1260 ibid 64; Espinoza Gonzáles v Peru [2015] IACtHR Preliminary objections, Merits, Reparations and Costs, Series C, No. 295 [217].</footnote>

<footnote n="1261">1261 Juridical Condition and rights of the undocumented migrants (n 117) 83–84.</footnote>

<footnote n="1262">1262 Rocio San Miguel Sosa v Venezuela [2015] [111].</footnote>

<footnote n="1263">1263 Hennebel and Tigroudja, A Commentary (n 168) 720–721.</footnote>

<footnote n="1264">1264 Yatama (n 183) paras 201; 225; Mario Melo, ‘Recent Advances in the Justiciability of Indigenous Rights in the Inter-American System of Human Rights’ [2006] SUR 31.</footnote>
discrimination in general and to urge States to fix regulations supporting material rather than formal equality.<fnref n="1265" />

With Article 27§1 of the ACHR – covering suspension of guarantees in times of “war, public danger, or other emergency” – derogations are possible, but the measures must respect international law obligations and the right to non-discrimination.<fnref n="1266" />

### 1.3. Discrimination as a key target in Article 1.1

Under Article 1§1, States have the obligation to respect and ensure rights of individuals who fall under their jurisdiction, and who are therefore protected by the Convention. It rules out any discrimination on grounds of “race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.” Categories which do not expressly appear in these elements, due to the non-exhaustive list of grounds, have been interpreted by the Court as falling under the scope of Article 1§1 through the expression “otra condición social”, and on certain occasions Article 24.<fnref n="1267" /> Thus, the Court underlined discrimination based on sexual orientation,<fnref n="1268" /> gender identity and expression,<fnref n="1269" /> age,<fnref n="1270" /> and illness and disability.<fnref n="1271" /> The Court also used its jurisprudence to specify other categories like economic status, social condition, or political opinions, to tackle the structural and historical discrimination faced by poor and enslaved workers in Brazil for instance.<fnref n="1272" /> In the *Hacienda* case (2016), for the first time the IACtHR ruled on slavery, human trafficking and structural discrimination on economic grounds. Furthermore, the Court ruled on State

<footnote n="1265">1265 Laurence Burgorgue-Larsen, 'Les Nouvelles Tendances Dans La Jurisprudence de La Cour Interaméricaine Des Droits de l'homme' [2009] Cursos de Derecho Internacional y Relaciones y Internacionales de Vitoria-Gasteiz 2008, Universidad del Pais Vasco 1, 14.</footnote>

<footnote n="1266">1266 Article 27§1 ACHR.</footnote>

<footnote n="1267">1267 Hennebel and Tigroudja, *A Commentary* (n 168) 721.</footnote>

<footnote n="1268">1268 *Atala Riffo and Daughters v Chile* (n 156) para 85; *Pavez* (n 138).</footnote>

<footnote n="1269">1269 *Azul Rojas Marín et al v Perú* [2020] IACtHR Preliminary Objections, Merits, Reparations, and Costs, Series C, No. 402 [86]; *Flor Freire v Ecuador* (n 1267) para 118; *Gender identity, and equality and non-discrimination of same-sex couples, Advisory Opinion OC-24/17* (n 1268) para 68.</footnote>

<footnote n="1270">1270 *Paola Guzmán Albarracín et al v Ecuador* [2020] IACtHR Merits, Reparations, and Costs, Series C, No. 405 [141].</footnote>

<footnote n="1271">1271 *Gonzales Lluy et al v Ecuador* (n 1113) para 242.</footnote>

<footnote n="1272">1272 *Hacienda Brasil Verde Workers v Brazil* [2016] IACtHR Preliminary Objections, Merits, Reparations, and Costs, Series C, No. 318 [334].</footnote>
responsibility for human rights violations committed by private actors. In the State of Pará (Brazil), 85 workers, including children, viewed as vulnerable, faced inhuman working conditions in the Hacienda Brasil Verde, a private owned estate. This case represented the systemic historical problem in the country's agriculture sector. More interestingly, the Court established that the victim's vulnerability – poor and of African descent – increased the chances of recruitment and abuses in this sector.

Furthermore, through this expression, “otra condición social”, the Court considers the evolution of international law and interprets this discrimination in light of the victim’s situation. It thus follows therefore a *pro persona* approach.<fnref n="1273" />

Indeed, the IACtHR has developed the principle of non-discrimination through its jurisprudence. In the *Granier* case (2015), and in an earlier advisory opinion (2003), it considered this principle as being a norm of *jus cogens*. This went on to become a foundation stone of international and national orders.<fnref n="1274" /> Under this norm, defined in Article 53 of the Vienna Convention, certain principles of rights are considered to be universal and superior and form the basis of peremptory norms of general international law.

The qualification of discrimination under Article 1§1 of the ACHR is inspired by the ECtHR jurisprudence.<fnref n="1275" /> Two elements are used by the Court: firstly, the difference of treatment, and second, State justification. Difference of treatment is either linked to direct or indirect discrimination,<fnref n="1276" /> and such possible discrimination should in practice lead to special State protection of individuals, or discrimination by perception.<fnref n="1277" /> More specifically, according to the Court, the State must abstain from carrying out any actions that lead to or

<footnote n="1273">¹²⁷³ Atala Riffo and Daughters v Chile (n 156) para 85; IV v Bolivia [2016] IACtHR Preliminary Objections, Merits, Reparations, and Costs, Series C, No. 329 [240].</footnote>

<footnote n="1274">¹²⁷⁴ Granier et al (Radio Caracas Television) v Venezuela [2015] IACtHR Preliminary Objections, Merits, Reparations, and Costs, Series C, No. 293 [215]; Juridical Condition and rights of the undocumented migrants (n 117) para 101.</footnote>

<footnote n="1275">¹²⁷⁵ Hennebel and Tigroudja, *A Commentary* (n 168) 53.</footnote>

<footnote n="1276">¹²⁷⁶ Nadege Dorzema et al v Dominican Republic [2012] IACtHR Merits, reparations and costs, Series C, No. 251 [233-234.]. For more information see: Part I – Chapter 2.</footnote>

<footnote n="1277">¹²⁷⁷ Consists of discriminating a person based on its appearance (clothes for instance). *Flor Freire v Ecuador* (n 1267) para 120.</footnote>
create *de jure* or *de facto* discrimination. It goes further, by arguing that States must take affirmative measures in response to discriminatory situations occurring in their society.<fnref n="1278" /> In *Cotton Field* (2009), the Court delimited the conditions under which affirmative actions must be developed by national institutions.<fnref n="1279" /> While the Convention does not promote affirmative action, the IACtHR declared that difference of treatment is not necessarily discriminatory. However, this distinction has to be based, firstly, on reasonable and objective criteria, and secondly, serve a legitimate state interest.<fnref n="1280" />

The impact of such direct or indirect discrimination, leads to discrimination by “ricochet” also known as discrimination by association. This discrimination indicates the impact of such policies or practices towards individuals linked to the victim. This concept seems to have appeared for the first time in the *Coleman* case of the CJEU (2008).<fnref n="1281" /> At the level of the IACtHR, a focus was put on children affected by discrimination faced by their parents.<fnref n="1282" /> With the establishment of the difference of treatment, States must justify this violation through solid and serious arguments based on Article 1§1.<fnref n="1283" />

While not specifically linked to Article 1§1 or to the obligations established in the Convention, the Court has gradually developed and used the concept of multiple and intersectional discrimination to highlight situations of structural vulnerability in cases of discrimination.<fnref n="1284" /> For instance, in the *Artavia Murillo* case (2012) concerning in vitro fertilisation, the multiple discrimination was based on gender, economic situation and finally health status.<fnref n="1285" />

<footnote n="1278">1278 *Juridical Condition and rights of the undocumented migrants* (n 117) paras 101; 104; *Furlan and Family v Argentina* [2012] IACtHR Preliminary Objections, Merits, Reparations and Costs, Series C, No. 246 [132–134]; *Maya Kaqchikel Indigenous Peoples of Sumpango et al v Guatemala* [2021] IACtHR Merits, Reparations and Costs, Series C, No. 440 [116].</footnote>

<footnote n="1279">1279 *González et al (“Cotton Field”) v Mexico* [2009] IACtHR Preliminary Objection, Merits, Reparations and Costs, Series C, No. 205 (discrimination faced by women in a case of gender violence).</footnote>

<footnote n="1280">1280 *Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica* (n 710) para 56.</footnote>

<footnote n="1281">1281 *S Coleman v Attridge Law and Steve Law* [2008] CJEU C-303/06.</footnote>

<footnote n="1282">1282 *Atala Riffo and Daughters v Chile* (n 156) paras 150–155.</footnote>

<footnote n="1283">1283 *Duque v Colombia* (n 1268) para 106.</footnote>

<footnote n="1284">1284 *Paola Guzmán Albarracín et al v Ecuador* (n 1280) paras 141–142; *Manuela v El Salvador* [2021] IACtHR Excepciones preliminares, Fondo, Reparaciones y Costas, Series C, No. 441 [253].</footnote>

<footnote n="1285">1285 *Artavia Murillo et al. (In Vitro Fertilization) v. Costa Rica* (n 983) para 285.</footnote>
The use of intersectional discrimination by the Court emphasises the vulnerability of individuals and their increased discrimination. In *Gonzales* (2015), the Court argued that in the absence of any one of the factors – gender, HIV, disability, minority, or socio-economic status – discrimination would have been different.<fnref n="1286" /> This case emphasised the complexity embedded in the concept of discrimination. Whilst in theory, the concept is quite clear, in practice, the multiplicity and intersectionality of discrimination leads to specific situations to which the Court must adapt. The constant evolution of the jurisprudence is thus mandatory at the regional level in order to grant greater protection to vulnerable populations.

## 2. Victims of subordination and exclusion: the case of indigenous groups

With the arrival of Spanish and Portuguese in the XVth century, indigenous groups in South America developed a common history. The difference of languages, traditions, art and religion, were put aside to focus on the general attitude of coloniser.<fnref n="1287" /> Whilst differences between legal systems exist, the impact of colonisation forged a general heritage from a social and legal perspective. As in India, discriminatory practices often find its sources in the colonial period and groups violations must be understood through the prism of history and social perspective and that shows how national laws translated colonial domination over their societies. This approach is found within the IACtHR ruling. Currently, the Court is the first international jurisdiction to recognise the rights of indigenous groups as such.<fnref n="1288" />

### 2.1. General perspective

Today, discrimination in Latin America towards indigenous communities is not only an integral part of society but is equally a central issue at the regional level. Their exclusion and

<footnote n="1286">¹²⁸⁶ *Gonzales Lluy et al v Ecuador* (n 1113) para 290.</footnote>

<footnote n="1287">¹²⁸⁷ Quintana Osuna Karla I and Citroni Gabriella, ‘Reparations for Indigenous Peoples in the Case Law of the Inter-American Court of Human Rights’ in Federico Lenzerini, *Reparations for Indigenous Peoples* (OUP 2008) 318.</footnote>

<footnote n="1288">¹²⁸⁸ Burgorgue-Larsen, Les Nouvelles Tendances Dans La Jurisprudence de La Cour Interaméricaine Des Droits de l'homme (n 1275) 13.</footnote>
marginality, inequality and poverty compared to the rest of society heightens their vulnerability to discrimination.<fnref n="1289" />

### 2.1.1. *A political and historical approach*

From a political and historical perspective, attitudes towards these communities reflect former patterns of colonial domination under which indigenous groups were subordinated to white people who positioned themselves as superior.<fnref n="1290" /> Discrimination and exclusion served as important tools to maintain not only a dominant position, but equally, endorsed an attitude of social and economic subjection. The end result was to reproduce inequity.<fnref n="1291" /> In *Brevísima relación de la destrucción de las Indias* (1552), Fray Bartolomé de Las Casas, a Spanish Dominican friar, and an indigenous rights Defensor highlights this exclusion and domination policy: exploitation, forced evangelisation and dispossession of their lands. Territorial domination, appropriation of natural resources by the majority and integration of labour within imposed cash-crop agriculture, accentuated the process of invisibility through discrimination. Exploitation of natural resources on indigenous lands continued to be applied until the XXth century without regard of indigenous rights.<fnref n="1292" /> It resulted in significant loss of land, territory, and natural resources for the indigenous people, accentuated by forced evictions.<fnref n="1293" />

In addition, policies of “denial of the other” reinforced discrimination of indigenous groups.<fnref n="1294" /> This attitude, which dates to the first conquest and regimes of colonisation, took the form of cultural discrimination, developing into political and social exclusion. In practice, this mainly led to economic disparity.

<footnote n="1289">¹²⁸⁹ Alvaro Bello and Marta Rangel, 'La Equidad y La Exclusión de Los Pueblos Indígenas y Afrodescendientes En América Latina y El Caribe' (2002) 76 Revista de la Cepal 39, 40.</footnote>

<footnote n="1290">¹²⁹⁰ Bónfil Batalla Guillenno, Pensar Nuestra Cultura (Alianza Editorial 1991).</footnote>

<footnote n="1291">¹²⁹¹ Bello and Rangel, 'La Equidad y La Exclusión de Los Pueblos Indígenas y Afrodescendientes En América Latina y El Caribe' (n 1299) 40.</footnote>

<footnote n="1292">¹²⁹² Ivonny Carolina Mora Burbano, 'Les Constitutions Sud-Américaines et Le Droit International' (These de doctorat, Bordeaux 2019) 171.</footnote>

<footnote n="1293">¹²⁹³ Martin Hopenhayn and Alvaro Bello, 'Discriminación Étnico-Racial y Xenofobia En América Latina y El Caribe' [2001] Serie políticas sociales 1.</footnote>

<footnote n="1294">¹²⁹⁴ G Fernando Calderón, Martín Hopenhayn and Ernesto Ottone, Esa esquiva modernidad: desarrollo, ciudadanía y cultura en América Latina y el Caribe (Ed Nueva Sociedad 1996).</footnote>
### 2.1.2. *The question of migration*

Forced “migration” of indigenous populations towards cities, linked to the deterioration of communal land, general lack of resources and poverty, heightened their vulnerability to discrimination. It increased their precarity, marginalisation and discrimination, subjecting them to insecure and precarious employment. For instance, in Guatemala, Mexico or Peru, the difference between poverty levels of indigenous and non-indigenous can rise to 20 to 30 points.<fnref n="1295" />

The principle causes of such poverty lie in the XIXth century liberal reforms throughout the region. Their introduction of the concept of private land property led indigenous groups to lose their lands, and created a massive exodus.<fnref n="1296" /> Furthermore, civil war, as in Salvador, Nicaragua or Colombia, also led to migration of indigenous populations.

### 2.1.3. *The integration process*

The process of symbolic integration replaced the European practice of forced evangelisation of colonies. States were constructed on the “acculturation-culturation” process. In practice, this translated into the privation of their identity and culture, along with the destruction of their social practices often linked to the land, culminating in their “acculturation”. On the other hand, assimilation into the dominant culture led to the process of “culturation”. States created a national identity without considering indigenous groups’ who also failed to present an alternative coherent economic and political system, and norms of moral conduct.<fnref n="1297" /> This is mainly due to the conception of indigenous populations by the ruling elites and intellectuals, who built the ideology surrounding the new State.<fnref n="1298" />

<footnote n="1295">¹²⁹⁵ Harry Anthony Patrinos and George Psacharopoulos, 'Pueblos indígenas y pobreza en América Latina: un análisis empírico' (ECLAC 1994) LC/DEM/G.146.</footnote>

<footnote n="1296">¹²⁹⁶ Roger Plant, 'Pobreza y Desarrollo Indígena: Algunas Reflexiones' (Banco Interamericano de Desarrollo, Washington, DC 1998).</footnote>

<footnote n="1297">¹²⁹⁷ Hopenhayn and Bello, 'Discriminación Étnico-Racial y Xenofobia En América Latina y El Caribe' (n 1303) 10.</footnote>

<footnote n="1298">¹²⁹⁸ Intellectual elites were often divided in two groups, traditional and conversative, identifying mainly with a Spanish and Catholic heritage, rejecting traditional and backward practices, and desirous of incorporating ideas of</footnote>
This attitude resonates today in the social and cultural system, with their exclusion from education, resulting in high levels of illiteracy,<fnref n="1299" /> poor access to justice or low political participation in comparison to “white” people, and precarious employment.

## 2.2. Constitutional evolution and indigenous particularisms at the national level

In South America, the State, along with private actors, is the main perpetuator of human rights violation of indigenous groups. This is mainly due to the adoption of rules that have perpetuated discriminatory practices and domination over indigenous populations within national contexts.<fnref n="1300" />

At the national level, States have considered indigenous particularism through Constitutional provisions for their protection. Legally, this puts an end to, or at least offers a remedy to political, cultural, social and judicial abuses. In the early 1980s, several constitutional reforms in the sub-continent considered specificities of indigenous culture and language, and even specific rights. While these rights did not clearly establish the right to non-discrimination, in theory they put an end to social and legal exclusion of indigenous groups, which aggravated their discrimination.

In most South American countries, constitutionalism occupies a central place. Following the XIXth century French constitutional tradition, the Constitution often known as the *bloc de constitutionnalité* was perceived as the principal source in the legal system. Consequently, States use the Constitution, perceived as a political charter, to promote new political ideologies.<fnref n="1301" /> In Latin America, in 18 countries, 388 constitutional reforms were made between 1978 and 2012,

<footnote>the French enlightenment. Rodolfo Stavenhagen, Derecho Indígena y Derechos Humanos (IIDH-Colegio de México 1988) 24.</footnote>

<footnote n="1299">¹²⁹⁹ Stefano Varese, ‘La Cultura Como Recurso: El Desafío de La Educación Indígena En El Marco Del Desarrollo Nacional Autónomo’ in Madeleine Zúñiga, Juann Ansion and Luis Cuevas (eds), Educación en poblaciones indígenas. Políticas y estrategias en (Santiago de Chile, 1987); Jorge E Horbath and Ma Amalia Gracia, ‘Estudiantes Indígenas Migrantes Frente a La Discriminación En Escuelas Urbanas de Las Ciudades Del Sureste Mexicano’ (2018) 13 Península 151.</footnote>

<footnote n="1300">¹³⁰⁰ Sílvio Coelho Dos Santos, O Indio Perante o Direito: Ensaios (Editora da UFSC 1982).</footnote>

<footnote n="1301">¹³⁰¹ Françoise Martinat, ‘Droits Indigènes et Logique d’État’, La reconnaissance des peuples indigènes entre droit et politique (Presses universitaires du Septentrion 2017).</footnote>
and 16 new constitutions were established.<fnref n="1302" /> States like Brazil, Colombia, Mexico, Chili, Costa Rica, Honduras and Peru frequently changed their constitution through reforms.<fnref n="1303" /> The direct impact of this attitude is the blurring between the political system and constitutional values.<fnref n="1304" /> In Brazil for instance, difference can be found in the constitutional norms between *polity* (refers to the fundamental rights and basic rules of politics) and *policies* (norms which surrounds public policies).<fnref n="1305" /> In a context of dictatorship and weak democracy, States sought to legitimize their actions through constitutional changes. Law is then no longer a tool to counter violence. Instead, it serves as a legitimate tool of communication between States and individuals.

For the Colombian jurist Mauricio Garcia Villegas, law does not correspond to legal norms but serves as political strategy.<fnref n="1306" /> This approach has determined the constitutional protection granted to indigenous groups in that country. Law is used to lend a strong validity to State actions. Countries like Colombia and Venezuela highlight this point with a strong legal system as compared to their fragile political systems.<fnref n="1307" /> Consequently, law is a tool employed by these States to activate strong symbols such as unity and even multiculturalism. The protection of indigenous rights in the Constitution must be understood as a strategy in this context. Under this scheme, the respect of indigenous rights depends on specific political programs, and despite recognition in the Constitution, it is no guarantee of the respect of their rights.

Another way to end discrimination consists of integrating concepts such as multicultural or pluri-ethnicity in State values. By integrating and recognising indigenous people as part of

<footnote n="1302">¹³⁰² Detlef Nolte, ‘Réformes Constitutionnelles En Amérique Latine’, Le constitutionnalisme latino-américain aujourd’hui : entre renouveau juridique et essor démocratique ? (Éditions Kimé 2015).</footnote>

<footnote n="1303">¹³⁰³ ibid.</footnote>

<footnote n="1304">¹³⁰⁴ Martinat, ‘Droits Indigènes et Logique d’État’, La reconnaissance des peuples indigènes entre droit et politique (n 1311).</footnote>

<footnote n="1305">¹³⁰⁵ C Gonçalves Couto and R Bastos Arantes, ‘¿Constitución o Políticas Públicas? Una Evaluación de Los Años FHC’, Política brasileña contemporánea: de Collor a Lula en años de transformación (Siglo XXI Editores 2003); G Sartori, Comparative Constitutional Engineering (Houndmills, Macmillan 1994) 202.</footnote>

<footnote n="1306">¹³⁰⁶ Mauricio Garcia-Villegas, ‘Law as Hope: Constitution and Social Change in Latin America Essay’ (2001) 20 WILJ 353.</footnote>

<footnote n="1307">¹³⁰⁷ Martinat, ‘Droits Indigènes et Logique d’État’, La reconnaissance des peuples indigènes entre droit et politique (n 1311).</footnote>
the nation in their legal system, States use their system to reduce tensions between political attitudes and social reality on the surface.

However, in reality these concepts are misused and create space for institutional abuses. In Venezuela for instance, in order to legally take ownership of the land belonging to the Kali'na community, the city of Maturin deprived it of their indigenous qualification through an administrative decree. Consequently, they no longer needed to respect and apply indigenous rights legally. By detaching the ethnic factor from indigenous groups, the State could dispossess them from their land and expropriate them it. Finally, in October 1998, the judiciary re-established their rights and recognised them as indigenous once more.<fnref n="1308" /> Even so, the Kali'na community did not recover ownership of its lost land. The case demonstrates the misuse of law by political and institutional organs; but more dangerously, the discrimination of indigenous groups through laws.

The entry into force of the International Labour Organization (ILO) Convention – Indigenous and Tribal Peoples Convention, 1989 (No. 169), recognises their rights to a free prior consultation and information about government measures that can directly undermine their rights. It promotes indigenous groups rights to participate in institutions, but more importantly permits their incorporation in society while retaining their own characteristics.<fnref n="1309" /> Consequently, it puts an end to the idea of “acculturation-culturation”. This has led States to incorporate this right within their Constitution<fnref n="1310" />: Article 120 of the Venezuelan Constitution and Article 57 of the Ecuadorian Constitution is one example.

Constitutional ambiguity on this principle has led national judges, and more specifically constitutional judges, to interpret the Constitution and this right differently. In Colombia, the 1991 Constitution integrated the prior consultation right and the Constitutional Court extended it to indigenous and black communities within its jurisprudence. Since 1997 and the SU-039/97 ruling (related to oil extraction in the U'wa habitat area), the Court recalled the importance of

<footnote n="1308">¹³⁰⁸ ibid.</footnote>

<footnote n="1309">¹³⁰⁹ Mora Burbano, ‘Les Constitutions Sud-Américaines et Le Droit International’ (n 1302) 171.</footnote>

<footnote n="1310">¹³¹⁰ The obligation to consult is also protected by the IACtHR directly linked to the State's obligation to guarantee the free and full exercise of the rights recognised in Article 1(1) of the Convention. César Rodríguez Garavito and Carlos Andrés Baquero Díaz, ‘The Right to Free, Prior, and Informed Consultation in Colombia: Advances and Setbacks’ 3; *Comunidad Garífuna Triunfo De La Cruz Y Sus Miembros v Honduras* [2015] IACtHR Fondo, Reparaciones y Costas, Series C, No. 305 [159].</footnote>
prior consultation in more than 77 judgements.1311 In 2003 for example, the Court underlined the correlation between the protection of the prior consultation and the preservation of indigenous ethnic, social, economic and cultural identity that is central to their survival as a social group.1312 In Bolivia, in 2012, the Court underlined the presence of protection of indigenous rights' in the bloc of constitutionality (Article 410 of the Constitution) and consequently the State's duty to respect their right to prior consultation.1313 However, the Court has also played a critical role in the regression of this right. In the C-253 judgment of 2013, it held that prior consultation can only apply for legislative measures (post January 2008).1314 Despite some positive interpretations, indigenous groups and their rights often stand in contradiction to State ideologies of unity.1315 States use concepts of unity, diversity and nation to their advantage to encroach on indigenous groups rights. This is not specific to South America. As noted earlier, decolonised countries like India too accord significant political importance to unity and national security, which can override the judiciary's respect of rights to non-discrimination.

The 1993 case in Colombia highlights this. The Media Amazonas community (Huitoto, Muinane, Andoque, Nonuya and Yucuna) invoked the right of indigenous communities to equality and dignity, cultural, social and economic integrity, to their autonomy, and traditional and communal territories before the Constitutional Court.1316 In this case, Colombian and American military troops had settled on their territory to control narcotics traffickers, and even built an US airbase without any prior consultation. The Court used the argument of State unity, national security and general interest to reject their legal argument.1317 The case emphasizes the secondary importance accorded to indigenous rights in practice and the fact that these are not absolute.1318 Strikingly, this case similar to Indian examples, demonstrates the malleability of

<footnote n="1311">1311 ‘Right to Free, Prior, and Informed Consultation and Consent in Latin America: Progress and Challenges in Bolivia, Brazil, Chile, Colombia, Guatemala, and Peru’ (Due Process of Law Foundation 2015) 11.</footnote>

<footnote n="1312">1312 Acción de tutela instaurada por la Organización de los pueblos indígenas de la Amazonia colombiana OPIAC contra la Presidencia de la República y otros [2003] Corte Constitucional de Colombia SU-383/03.</footnote>

<footnote n="1313">1313 Sentencia 0300/2012 (Tribunal constitucional plurinacional de Bolivia).</footnote>

<footnote n="1314">1314 Sentencia C-253/13 (Corte Constitucional de Colombia).</footnote>

<footnote n="1315">1315 Françoise Martinat, ‘Droits Indigènes et Logique d’État’, La reconnaissance des peuples indigènes entre droit et politique (Presses universitaires du Septentrion 2017) 49.</footnote>

<footnote n="1316">1316 Comunidades Indígenas del Medio Amazonas contra el Ministerio de Defensa Nacional y la Misión Aérea de los Estados Unidos [1993] Corte Constitucional de Colombia T-405/93 [I].</footnote>

<footnote n="1317">1317 ibid II-1.</footnote>

<footnote n="1318">1318 ibid II-2.</footnote>
the concept of national security, or general interest in the hands of the judges. In 1992, in a
dispute over the construction of a road between the indigenous community of Cristianía and
Colombian populations living in the West, the Constitutional Court had already pronounced
that core human rights contain “an absolute value, which cannot be negotiated or
underestimated.”<fnref n="1319" /> Hence, the concept of general interest could not be used to violate human
rights. Yet in 1993, the Constitutional Court over-ruled its jurisprudence, by considering State
values more ‘important’ than the constitutional bloc in the sensitive context of land acquisition
of indigenous groups. Through this case does not directly mention the right to non-
discrimination, it does perpetuate traditional approach to these communities who have been
dispossessed of their land and marginalised. In the case of other communities, it would have
been perceived as a violation of law but because the case concerns minority groups protected
by special constitutional provisions, the discriminatory element is flagrant. Compared to other
groups, indigenous groups face a higher risk of discrimination despite the formal application of
constitutional rights.<fnref n="1320" />

Discrimination clearly functions at different levels, from the overt to the more subtle. The above
example perfectly illustrates that discrimination can be embedded in general treatment of
groups, and is not simply confined to issues such as employment or access to education. The
existence of constitutional law in this instance did not protect the violation of indigenous
groups. Their vulnerability, and exposure to forced assimilation was the product of long
historical traditions, this persists and needs to be consistently considered by judges, especially
constitutional judges.

2.3. Cultural diversity and the *pro homine* principle

On the protection of minority groups, the IACtHR and the ECtHR differ drastically.
Hence, an analysis of both regional systems cannot be based on the same concepts. From a
European perspective, discrimination is generally examined through marginality and
vulnerability, without a strong consideration of the sociological or historical context. As
highlighted in the analysis of Roma minority cases, marginality and vulnerability heightens

<footnote n="1319">¹³¹⁹ Amado De Jesus Carupia Yagari [1992] Corte Constitucional de Colombia T-428/92 [D-1].</footnote>

<footnote n="1320">¹³²⁰ Martinat, 'Droits Indigènes et Logique d'État', La reconnaissance des peuples indigènes entre droit et politique (n 1311).</footnote>
increases their discrimination. The ECtHR's disregard these concepts and perpetuates discriminatory practices by institutions and national jurisdiction, and furthers the invisibility of not only Roma minority groups, but more broadly other minority groups. Surprisingly, despite the centrality of these concepts, the Strasbourg judges often do not mobilise them to demonstrate abusive differences of treatment rooted in historical, sociological and mostly structural discrimination. On the contrary, the IACtHR approach relies first on historical considerations and then secondly on the specific violation of human rights, such as the right to land. The IACtHR has a section labelled "Facts" ("Hechos") that not only describes the context of the case, but goes into deeper details about the situation of indigenous groups,<fnref n="1321" /> integrating historical references, geographical location, or population census. Furthermore, it also considers intersectionality in its ruling,<fnref n="1322" /> though its analysis is not founded uniquely on this concept. The IACtHR's jurisprudence underlines the importance of understanding individuals in larger historical, political, social frames.

Discrimination against indigenous groups in Latin America took shape around cultural identity, resulting in their exclusion from society, the nation State, and dispossession of their land. Few cases in front of the Court mention discrimination, yet the State's abusive practices clearly produced in discrimination, continuing the historical exclusion of indigenous groups from society.<fnref n="1323" /> The term *structural racism* sums up this phenomenon.<fnref n="1324" /> Tellingly, the Court chose the angle of culture alongside the concept of vulnerability of indigenous groups to tackle the problem. Whilst cases of assimilation policy result in deprivation of indigenous lands,<fnref n="1325" /> many cases related to land expropriation have not been analysed directly through the angle of discrimination. However, the San José judges promote an approach that recognises historical

<footnote n="1321">1321 *Kuna Indigenous People of Madungandí and the Emberá Indigenous People of Bayano and their members v Panama* [2014] IACtHR Preliminary Objections, Merits, Reparations, and Costs, Series C, No. 284 [60–61]; *Pueblo Indígena Xucuru y sus miembros v Brasil* [2017] IACtHR Preliminary Objections, Merits, Reparations and Costs, Serie C, No. 346 [60–61]; *Indígenas Miembros de la Asociación Lhaka Honhat (nuestra tierra) v Argentina* [2020] IACtHR Fondo, Reparaciones y Costas, Series C, No. 420 [57–50].</footnote>

<footnote n="1322">1322 *Maya Kaqchikel Indigenous Peoples of Sumpango et al v Guatemala* (n 1288).</footnote>

<footnote n="1323">1323 Inclusion of indigenous groups for the purpose of exploitation by society, mostly as cheap laborer's can still lead to their social exclusion.</footnote>

<footnote n="1324">1324 Rodolfo Stavenhagen, ‘Cultural Diversity in the Development of the Americas: Indigenous Peoples and States in Spanish America’ [2002] Culture Studies series, OAS 1, para 79.</footnote>

<footnote n="1325">1325 *Kuna Indigenous People of Madungandí and the Emberá Indigenous People of Bayano and their members v Panama* (n 1331) paras 199–200.</footnote>
discrimination against individuals, which has led to land expropriation in the past. They adopt
the angle of cultural protection to make States recognize the cultural particularism of indigenous
groups in land ownership cases.<fnref n="1326" /> This approach accommodates central elements of
indigenous histories, and allows their visibility.

The *Awas Tingni* case (2001), was the first IACtHR ruling on property rights of indigenous groups which centred on the concept of indigenous cosmovision. 1327 Here, the Court examined land acquisition by the Nicaraguan State for a corporate firm. This case became a legal precedent for collective land battles of indigenous groups. However, discrimination was not linked by the Court to land appropriation but to other rights such as a healthy environment, adequate food, water and cultural life. In its separate opinion, Judge Poisot, after rapidly underlining the link between the right to conservation of their land without discrimination (Article XIX of the 2016 American Declaration on the Rights of Indigenous Peoples), recalled the importance of the cultural dimension, and spiritual connection with the territory. 1328 Judges Trindade, Gomez and Burelli underlined the cultural dimension in the right to communal property, and considered that the deprivation of land would deprive groups from practicing, conserving and revitalising their culture. 1329 The Judges went further and argued that cultural aspects cannot be invoked against universal human rights, thus creating a tension between the values of diversity and uniformity in human rights. 1330 They also argued that cultural diversity must be respected, while cultural relativism must be put aside. 1331 Their approach, attempted to blend universality with diversity. The Court argued that universality does not entail the end of difference, but on the contrary, consists of accepting and promoting difference. It followed the philosophical approach of the French jurist René-Jean Depuy, who had argued that the UDHR

<footnote n="1326">1326 Mayagna (Sumo) Awas Tingni Community v Nicaragua [2001] IACtHR Merits, Reparations and Costs, Series C, No. 79; *Comunidad Garífuna de Punta Piedra y sus miembros v Honduras* [2015] IACtHR Excepciones Preliminares, Fondo, Reparaciones y Costas, Series C, No. 304; *Pueblo Indígena Xucuru y sus miembros v Brasil* [2018] IACtHR Excepciones Preliminares, Fondo, Reparaciones y Costas, Series C, No. 346. On issues related to land rights and the protection of religious and cultural practice, the case of the African Court related to the Ogiek community in Kenya resonates with the approach of the IACtHR. See: *African commission on human and peoples' rights v Republic of Kenya* [2017] African Court on Human and Peoples' rights 006/2012.</footnote>

<footnote n="1327">1327 ibid.</footnote>

<footnote n="1328">1328 Separate Opinion of Judge Eduardo Ferrer Mac-Gregor Poisot, ibid 20.</footnote>

<footnote n="1329">1329 Separate Opinion of Judges Antônio Augusto Cançado Trindade, Máximo Pacheco Gómez, and Alirio Abreu Burelli, ibid 6; 8.</footnote>

<footnote n="1330">1330 ibid 14.</footnote>

<footnote n="1331">1331 ibid.</footnote>
is not related to one unique person, but to all individuals who are different yet equal.<fnref n="1332" /> Intriguingly, cultural diversity is today still perceived in opposition to universality, which according to the former Special Rapporteur in the field of cultural rights, Karima Bennoune, leads Governments to excuse human rights violation through wrong interpretation.<fnref n="1333" />

Along with linking universality and cultural diversity, this approach leads to another legal reflection. Individuals are at the heart of cases for the IACtHR, not only as members of a community, but also as part of broader contexts. Contrary to the ECtHR which does not consider this, the IACtHR through its jurisprudence developed the *pro homine* principle which requires that situations be interpreted in the most beneficial way for individuals.<fnref n="1334" /> Concretely, this implies that the Convention must be interpreted through the angle of individual protection, the preservation of their human dignity, and the need to ensure and advance fundamental rights.<fnref n="1335" /> In sum it is understood that firstly, legal rules or principles must be interpreted in the most extensive way when recognising protected rights,<fnref n="1336" /> secondly that under this *modus operandi* the Convention's rights are the basis to protect human right dignity. The IACtHR further considers that legal systems must recognise the individual from a pluralistic perspective.<fnref n="1337" /> Thus, the Court subscribes to an expanded interpretation of human rights through the *pro homine* principle and goes beyond the Convention.<fnref n="1338" /> The use of this principle has promoted indigenous groups protection.

Equally, through the *pro homine* principle, the San José judges recognised the importance of a *pro individual* framework that combines natural law and legal positivism.<fnref n="1339" /> This enabled the Court to view individuals as part of a pluralistic environment, and acknowledge this diversity

<footnote n="1332">¹³³² René-Jean Depuy, *La Communauté Internationale Entre Le Mythe et l'histoire* (UNESCO 1986).</footnote>

<footnote n="1333">¹³³³ ‘Universality, Cultural Diversity and Cultural Rights: Report of the Special Rapporteur in the Field of Cultural Rights’ (General Assembly 2018) A/73/227 para 7.</footnote>

<footnote n="1334">¹³³⁴ Concurring Opinion of Judge Sergio García Ramírez, *Mayagna (Sumo) Awas Tingni Community v Nicaragua* (n 1336).</footnote>

<footnote n="1335">¹³³⁵ Sergio García Ramírez, ‘Concurring Opinion of Judge Sergio García Ramírez in the Judgment on The Merits and Reparations in the “Mayagna (Sumo) Awas Tingni Community Case”’ (2002) 19 Ariz. j. int. comp. law 443, para 2.</footnote>

<footnote n="1336">¹³³⁶ Mónica Pinto, ‘El principio pro homine: Criterios de hermenéutica y pautas para la regulación de los derechos humanos’ (Editores del Puerto 1997) 163.</footnote>

<footnote n="1337">¹³³⁷ Valerio De Oliveira Mazzuoli and Dilton Ribeiro, ‘Indigenous Rights Before the Inter-American Court of Human Rights: A Call for a Pro Individual Interpretation’ (2015) 61 Revisita IIDH 133, 149.</footnote>

<footnote n="1338">¹³³⁸ ibid 150.</footnote>

<footnote n="1339">¹³³⁹ ibid 151.</footnote>