Journal Article

Developing a Jurisprudence of Difference: The Protection of the Human Rights of Travelling Peoples by the European Court of Human Rights

Ralph Sandland

in Human Rights Law Review

Volume 8, issue 3, pages 475-516
Published in print January 2008 | ISSN: 1461-7781
Published online August 2008 | e-ISSN: 1744-1021 | DOI: https://dx.doi.org/10.1093/hrlr/ngn011
Developing a Jurisprudence of Difference: The Protection of the Human Rights of Travelling Peoples by the European Court of Human Rights

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This article reviews the development of the jurisprudence of the European Court of Human Rights (the Court) relating to the rights of Travelling Peoples. In its early case law on this topic, the Court's approach, in accordance with the principle of the rule of law, was to ensure equality of treatment. This approach appears laudable, but in practice it functioned as a failure to protect difference, or identity, especially minority identities; or, when difference was recognised, it was recognised as a problem. However, the Court has more recently undertaken a reappraisal of its approach. In essence, and although there may be scope for further development, the Court has moved to abandon a jurisprudence of sameness or equality in favour of elaborating a jurisprudence of difference. The Court now recognises that law applies differentially by reference to culture and ethnicity, and also that there are various positive obligations under the European Convention of Human Rights (the Convention) to protect difference, or minority identities, from both direct and indirect discrimination.

Journal Article.  20954 words. 

Subjects: Human Rights and Immigration

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