Introduction: The Justiciability of ESC Rights and the Interdependence of All Fundamental Rights

This special issue came about due to the interesting presentations given at a conference to celebrate the official launch of the International Commission of Jurist’s book, Courts and the Legal Enforcement of Economic, Social and Cultural Rights: Comparative Experiences of Justiciability, by Christian Courtis (hereinafter, ‘the ICJ book’). The publication of this book, with its thematic analysis of a rich compilation of national, regional and global jurisprudence on economic and social rights, marks an important phase in the development of theories on (the characteristics of) economic and social rights. Hence, the official launch of this seminal book at the Erasmus University of Rotterdam in April 2009 was considered to merit a conference on the justiciability of economic, social and cultural rights. Some of the articles included in this special issue emerged from this conference, and some were commissioned by the editor (in consultation with Christian Courtis). All of them refer to the ICJ book (in different degrees of explicitness). The title of the ICJ book reveals its focus on the justiciability of economic, social and economic rights. However, it is important to realise that the justiciability issue is tied up with several other, allegedly typical characteristics of social and economic rights

The European Court of Human Rights, Ethnic and Religious Minorities and the Two Dimensions of the Right to Equal Treatment: Jurisprudence at Different Speeds?

This article argues that it is no longer tenable to qualify the Court's non-discrimination jurisprudence overall as ‘poor’. Indeed, a different speed of development is noted for the ‘prohibition of invidious discrimination’ track and the ‘duties of differential treatment’ track. In cases concerning invidious discrimination, the Court tends to engage explicitly with the complaint in terms of the prohibition of discrimination, while adopting high levels of scrutiny in regard to differentiations on the basis of ethnicity and religion. Admittedly, there are ongoing flaws in the jurisprudence on the allocation of the burden of proof, and particularly the identification of a prima facie case of direct discrimination. Nevertheless, the Court seems to be willing to test the boundaries. A markedly different picture emerges concerning duties of differential treatment. The analysis of the selected case law confirms that the Court avoids as much as possible non-discrimination analysis in cases on claims to official recognition of separate identities and ways of life of ethnic and religious minorities. The Court prefers to conduct its analysis of the related complaints about a lack of accommodation in terms of articles 8 and 9 of the ECHR respectively. Arguably, demands for reasonable accommodation of different ethnic and religious identities are on the rise in the current era of globalisation. While the Court is not supposed to impose uniform standards, it remains important that it provides guidance about the benchmarks that contracting states need to take into account when developing policies, legislation, and practices, in order to live up to their commitment to respect fundamental rights. Consequently, the Court is urged to engage more explicitly and properly in non-discrimination analysis, also in relation to complaints about a lack of differential treatment (accommodation), while identifying and weighing the respective interests

Introduction

This issue of Erasmus Law Review continues and com- pletes the bridge initiated by issue 9:3 between the origi- nal format of working exclusively with thematic issues, and also having issues on submissions. It gives the floor to three promising doctoral students of Erasmus School of Law, who are now nearing the completion of their research

Introduction

This issue of Erasmus Law Review forms a historic bridge between the review’s original format of working exclusively with thematic issues and also having issues on submissions

Duties of Reasonable Accommodation in Relation to Religion and the European Court of Human Rights: A Closer Look at the Prohibition of Discrimination, the Freedom of Religion and Related Duties of State Neutrality

__Abstract__ This article aims to answer the question of whether duties of reasonable accommodation on the basis of religion can and should be identified by the European Court of Human Rights. Throughout the article, it is emphasised that duties of reasonable accommodation are ultimately about realising equal opportunities and thus substantive equality by levelling out the playing field and evening out barriers to full participation. Duties of differential treatment under the prohibition of discrimination and the prohibition of indirect discrimination are both general in application and, arguably, provide a solid basis for duties of reasonable accommodation, including those relating to religion. Consequently, it is argued that identifying these duties of reasonable accommodation would seem to be a logical development of the Court’s jurisprudence. It will be argued that the potential tension with the prohibition of discrimination (regarding those that cannot benefit from the accommodation measures) can be solved when an asymmetrical approach to the scrutiny of suspect grounds is adopted. Similarly, the apparent conflict with duties of state neutrality under the freedom of religion disappears when an inclusive vision of state neutrality is followed. When reasonable accommodation measures trigger controversies, this should be countered by awareness raising about the intrinsic connection of reasonable accommodation measures with substantive equality

Exploring the Potential (Contribution) of Multi-Disciplinary Legal Research for the Analysis of Minorities’ Rights

This article sets out to contribute to the special issue devo- ted to multi-disciplinary legal research by discussing first the limits of purely doctrinal legal research in relation to a par- ticular topic and second the relevant considerations in devis- ing research that (inter alia) draws on non-legal, auxiliary disciplines to ‘fill in’ and guide the legal framework. The topic concerned is the (analysis of the) fundamental rights of minorities. The article starts with a long account of the flaws in the cur- rent legal analysis of the European Court of Human Rights regarding minorities’ rights, particularly the reduction in its analysis and the related failure to properly identify and weigh all relevant interests and variables. This ‘prelude’ pro- vides crucial insights in the causes of the flaws in the Court’s jurisprudence: lack of knowledge (about the relevant inter- ests and variables) and concerns with the Court’s political legitimacy. The article goes on to argue for the need for multi-discipli- nary legal research to tackle the lack of knowledge: more particularly by drawing on sociology (and related social sci- ences) and political philosophy as auxiliary disciplines to identify additional interests and variables for the rights anal- ysis. The ensuing new analytical framework for the analysis of minorities’ rights would benefit international courts (adju- dicating on human rights) generally. To operationalise and refine the new analytical framework, the research should furthermore have regard to the practice of (a selection of) international courts and national case studies

The Shifting Parameters of Nationality

This article has two interrelated aims. First, the article goes beyond law and places the discussions on nationality in the broader literature on citizenship, also drawing on social sciences, political theory and moral philosophy. The ensuing conceptual, historical and multi-disciplinary account highlights the long pedigree of the idea of citizenship, the manifold conceptions of citizenship that have developed over time (including supra-national, sub-national and transnational citizenship). The article demonstrates how the changing spatialities of citizenship culminated in a focus on the nation-state, and the emergence of legal citizenship or nationality, reflecting the legal bond between an individual and a state. It was also noted that in several respects the parameters of nationality keep changing. More particularly, four developments have been highlighted that circumscribe the sovereign right of states to determine who are their nationals, both legally and through de facto pressures. Secondly, this contribution provides the overarching framework for the special issue while identifying the salient discussion points regarding nationality and international law that will be teased out in the articles of the special issue. The article ends with a brief overview of the articles that make up the special issue

Duties of reasonable accommodation in relation to religion and the european court of human rights: a closer look at the prohibition of discrimination, the freedom of religion and related duties of state neutrality

This article aims to answer the question of whether duties of reasonable accommodation on the basis of religion can and should be identified by the European Court of Human Rights. Throughout the article, it is emphasised that duties of reasonable accommodation are ultimately about realising equal opportunities and thus substantive equality by levelling out the playing field and evening out barriers to full participation. Duties of differential treatment under the prohibition of discrimination and the prohibition of indirect discrimination are both general in application and, arguably, provide a solid basis for duties of reasonable accommodation, including those relating to religion. Consequently, it is argued that identifying these duties of reasonable accommodation would seem to be a logical development of the Court’s jurisprudence. It will be argued that the potential tension with the prohibition of discrimination (regarding those that cannot benefit from the accommodation measures) can be solved when an asymmetrical approach to the scrutiny of suspect grounds is adopted. Similarly, the apparent conflict with duties of state neutrality under the freedom of religion disappears when an inclusive vision of state neutrality is followed. When reasonable accommodation measures trigger controversies, this should be countered by awareness raising about the intrinsic connection of reasonable accommodation measures with substantive equality