Emerging from the Shadows: Substantive Equality and Article 14 of the European Convention on Human Rights

Abstract

At first sight, the equality guarantee in Article 14 of the European Convention on Human Rights (ECHR) appears relatively insipid. Labelled as a ‘parasitic’ right, it only prohibits discrimination in the enjoyment of other Convention rights and is regarded by the European Court of Human Rights as having no independent existence. Indeed, it was this feature that led the Council of Europe to adopt a self-standing equality guarantee in the form of Protocol 12 in 2000. A look at the jurisprudence of the Court in the last few years yields a very different picture. The Court has held that refusal to afford equal parental rights to fathers is a breach of Article 14; that violence against women is a form of gender discrimination; that segregation in education can constitute race discrimination; that unequal treatment on grounds of sexual orientation is unjustifiable in a growing number of contexts; and that social benefits, even if they do not constitute rights in themselves, should not be granted on a discriminatory basis. This raises the question of whether we can now discern a coherent conception of the right to equality, which incorporates the insights of substantive equality being developed in other courts and in the scholarship. This paper aims to address this question by assessing recent developments in Article 14 jurisprudence.