Introduction
Protecting minorities has long been a core function of constitutional review. It also figures as an important reason for international human rights protection. Yet fulfilling that promise has proved a difficult and ambivalent enterprise. While minority protection is theoretically important, it is also where courts often encounter most pushback. The recent letter of nine European governments to the European Court of Human Rights asking the Court to grant them more leeway to deport criminal foreign nationals attests to that fact:Footnote 1
We believe that the development in the Court’s interpretation has, in some cases, limited our ability to make political decisions in our own democracies (…) In our opinion, safety and security for the victims and the vast majority of law-abiding citizens is a crucial and decisive right.
The follow-up letter of now 27 member states of December 2025 argues along similar lines, emphasizing the commitment to ‘democratic security’ and invoking no less than the idea of ‘democracy capable of defending itself’ as a justification for pressuring for more national leeway where states face hostile actors, e.g. in the context of “instrumentalisation of migration”.Footnote 2 This language is retained in the Chișinău Declaration on the ECtHR’s, albeit with other points expressed in more moderate tones.Footnote 3
None of this is, of course, entirely new and not all criticism directed at the ECtHR concerns minorities, as the conflict over the ECtHR’s Klimaseniorinnen judgment attest. Nevertheless, the ECtHR’s pro-minorities decisions have time and again been subject to sustained critiques from the conflicts over Hirst and prisoner voting to the Copenhagen declaration’s first draft and its criticism of the Court’s jurisprudence in asylum and immigration casesFootnote 4 to the current attempts. In those critiques, democracy has often figured as a buzzword and justification for demands for more judicial restraint or, in other words, for recognizing the subsidiarity of Strasbourg. The Court, the two recent letters argue, needs to strike a better balance between the peaceful majority’s democratic choice to protect its citizens and the rights of migrants, in particular, foreign criminals. Migrants are – like prisoners – in many ways a paradigmatic minority group; they are often religious minorities as well as linguistic ones, but perhaps more importantly, they are not citizens and often subject to hostile prejudice.
To be clear, such an understanding of minorities diverges from that outlined in the European Framework Convention for the Protection of National Minorities, and it does not correspond to a numerical concept of minorities either; rather, it corresponds to the idea we encounter in the comparative literature on judicial review and constitutional theory, namely of minorities as non-dominant groups that are subject to hostile prejudice and therefore in need of judicial protection from ‘majoritarian tyranny’. Migrants are one such typical example, as are others, for example, members of the LGBTQ+ community, of certain racialized and cultural groups or indeed women, in spite of making up the majority of the population. I propose a more specific theory for understanding minority status in terms of political vulnerability in the Section ‘Vulnerability and responsiveness’ below.
In this paper, I want to push back against the trend of viewing minority rights – and migrants’ rights in particular – and democracy in antagonistic terms, as a ‘balance’ to be struck. While majorities and minorities may not always share the same interests and conflicts may arise, they are both in theory and in practice deeply intertwined. As a matter of theory, democracy and rights have a common basis in the idea of equal autonomy. As a matter of reality, minorities have never been able to rely on courts (or rights) alone to safeguard their interests – and many democracies have long cared deeply about rights for all groups. We should therefore not let a semi-authoritarian far-right harness the voice of ‘we the people’ against an imaginary threat of ‘the others’. Instead, we should think about ways to strengthen the relationship between democracy and minority rights in practice – and about how the ECtHR might speak to that in its jurisprudence.
The comparative constitutional law literature – which is my academic home – has been thinking for a while about ways of integrating law and democratic politics in constitutional courts, focusing on both what courts might do and how they might be doing this. Under the label of ‘comparative political process theory’ or ‘representation-reinforcement’, a range of scholars have called on domestic courts to safeguard democratic processes and respond to malfunctions.Footnote 5 That said, minority protection is not a core theme in this strand of the comparative law literature. Thus, Stephen Gardbaum argued recently that in the current political climate the protection of democracy represents ‘a more pressing priority that the conventional focus on protecting individual rights’.Footnote 6 While I share the concern with structural issues, this framing invites misunderstandings. The protection of minorities and democracy should very much be thought of as two sides of the same coin, not least because the recent wave of democratic backsliding has come with significant assaults on minority rights. Migrants, the LGBTQ+-community as well as women have often borne the brunt of far-right governments” aggression where they come into power.
This paper draws on the comparative law literature and the work of Ely and Dixon in particularFootnote 7 to bring democracy and minority rights closer together in the jurisprudence of the European Court of Human Rights in a way that goes beyond the much-discussed ‘procedural turn’. I have previously argued with a co-author that we should view the role of the ECtHR in terms of representation-reinforcement and thus of protecting democracyFootnote 8 – and this symposium speaks to the fact that this is an increasingly prevalent idea in ECtHR scholarship as well. However, my focus here is mainly on how this connects to the protection of what I term ‘minority rights’, which Lisa Kujus and I have only briefly touched on before.
I start in this paper from a general argument about the connection between democracy and minority rights in the history and theory of human rights institutions, with a particular focus on the ECtHR and suggest that we should recognize this connection more clearly. In the next part of this paper, I argue that a responsive approach to the European Convention would be ideally suited to realize this connection. Following that, I discuss some examples of what such a responsive approach would look like in the Court’s jurisprudence, focusing on concepts that are already closely connected to themes of democracy and minority rights, that is, the Court’s procedural approach, proportionality and consensus arguments and the concept of vulnerability. I also briefly discuss the possibilities of a responsive approach with respect to communication strategies and propose some ideas on how the Court’s approach to its role and its public appearance might reflect the connection between minority rights and democracy, in the sense of better embedding such rights within our societies.
Protecting democracy and minority rights as core functions of the European Court of Human Rights
Historical arguments
Neither the protection of democracy nor that of minorities specifically seem to be the animating spirit of the European Convention if we start from its text. To begin with, human rights conventions protect individual rights, not democracy, even while they often include some rights that are core to democracy such as free speech. The argument against involving international institutions in protecting democracy is often framed in terms of the contested and indeterminate character of democracy and the need to allow for different institutional frameworks in different states. This, at least, was part of the reason for not including more political rights in the text of the original European Convention and for including the right to vote only in Protocol 1, but not in the original Convention itself.Footnote 9 This consideration also plays a role in the jurisprudence of the ECtHR which routinely affirms that state authorities have a wide margin of appreciation in fulfilling the right.Footnote 10 And when it comes to minority rights, the post-1945 system of international human rights protection famously adopted a universalist approach to human rights instead of the group-focused protection regime devised under the Versailles treaty, which focused on national minoritiesFootnote 11 and (certain kinds of) migrantsFootnote 12 – and thus explicitly moves away from the earlier international concern with minorities in particular.
All this is true. And yet, if we go back to the founders’ original intention, it bears emphasizing that the European Convention was conceived as an ‘alarm bell’ against totalitarianism and fascism, the core evils of the 20th century.Footnote 13 If we take that function seriously, the protection of democracy and human rights must surely go hand in hand: In our history, the worst human rights abuses have always been reserved for totalitarian and fascist systems, and thus authoritarian, not democratic ones and they typically targeted people considered ‘outsiders’. This, I believe, is the most important reason why protecting both rights of minorities and democracy should be at the forefront of human rights courts” mission and role.Footnote 14 And while the European Convention stipulated rights for all human beings, the fact that some people needed protection more than others was not lost on its founders either. The discovery of German extermination camps and the associated crimes against Jewish people, but also other groups subject to National Socialists’ hostile prejudices, featured heavily as a reason for several important postwar supporters of the Universal Declaration of Human Rights and the European Convention, albeit that it may only later have assumed the centrality it holds today as a foundation myth of the postwar human rights system.Footnote 15 But as a (partial) foundation myth, it also expresses a widely shared understanding of the role and function of these human rights texts today and of the courts created to protect them.
Beyond the binaries/overcoming the opposition of law and democracy
Not just politicians, but scholars too often cast democracy as an argument against judicial intervention, and correspondingly against the rights and interests of minorities. This is a natural move in many ways: Democracy seems to be about majorities getting their way, and those who are most likely to lose out in that process, or so we think, are minorities. It is also partly entrenched in the language of the Convention itself which allows states to limit certain rights to the extent ‘necessary in a democratic society’. As Mikael Madsen demonstrates in his contribution to this symposium, the literature and jurisprudence invoking subsidiarity in the Convention system often argue with the need to both respect and improve democratic processes in the member states.Footnote 16 Where issues have been thoroughly discussed in public, all sides, including those affected been heard and their arguments considered by decision-makers, the idea is that the court will exercise deference (this is the core of the ‘procedural turn’).Footnote 17 In contrast, those who argue that the Convention should focus on protecting minorities have stressed that a morally principled reading of the Convention must be autonomous of majority views.Footnote 18 From such a perspective, the trend towards proceduralization often appears as a threat to minority rights.Footnote 19 As a result, the relationship between democracy and minority rights appears antagonistic: either we protect minorities or democracy, but not both.
This is, at least partly, a misunderstanding. Another way of looking at the emphasis on local procedures is as a chance for strengthening both democracy and the protection of rights at the same time, through democratic channels. Ideally, it would lead to a more inclusive and democratic political process where judicial scrutiny can be lax because political actors themselves deeply care about the rights of all. This is one part of my argument but not the whole of it.
a) Representation-reinforcement in comparative law
To understand the whole, we need to return for a moment to the work of John Hart Ely and his theory of judicial review in Democracy and Distrust, written as a response to critics of the Warren Court in the United States.Footnote 20 OthersFootnote 21 and I myself have previously argued (with Lisa Kujus) that this theory provides a useful account in thinking about the ECtHR’s role as wellFootnote 22 so I try to be brief here. In a well-functioning democracy, Ely argued, courts should stick to the constitutional text wherever possible. If the latter, however, was not sufficiently clear, they should exercise restraint towards democratic actors and get involved only in two particular cases: (1) when insiders were ‘choking off the channels of political change to ensure that they will stay in and the outs will stay out’, or in situations where (2) ‘though no one is actually denied a voice or a vote, representatives beholden to an effective majority are systematically disadvantaging some minority out of simple hostility or a prejudiced refusal to recognize commonalities of interest, and thereby denying the minority the protection afforded other groups by a representative government’.Footnote 23 In other words, for Ely the idea of minority protection and the need for correcting malfunctions in democratic processes (and thus protecting democracy) stem from similar basic concerns: the question of which institutions and actors can and cannot typically be trusted to deal with these issues.
Importantly, while Ely put forward an argument for his theory’s fit with US constitutionalism, in its core his argument is grounded not in any specific democratic system but in a relational account of trust versus distrust. This framing leaves room for a plurality of democratic arrangements and procedures and his theory’s popularity in comparative law circles attests to that fact. Another way of understanding his account is in terms of Jeremy Waldron’s (later) argument for having legislatures rather than courts decide where we disagree about what rights mean in practice.Footnote 24 Waldron’s argument hinges on the existence of a democratic society where rights, including those of minorities, are generally taken seriously – pointing to his own background as a New Zealander teaching in the US and the UK. But whereas Waldron operated with a fairly binary conception in his piece, distinguishing between some systems which are sufficiently democratic and respectful of the rights of all and the rest, where his argument no longer applied, Ely’s (earlier) account was more nuanced in many ways. Rather than distinguishing between different democratic systems, it distinguished between different cases and situations, thus making room for more differentiated assessment of the need for judicial intervention: first, by calling on courts to protect the democratic process in a way that we can in fact trust it to safeguard rights generally; second, by recognizing that there are limits to such trust even in democracies, in particular, for certain groups that do not have equal opportunities to make their voices heard and compete in the political process – hence arguing that courts need protect their rights in particular.Footnote 25
Since then, other comparative law scholars have built on Ely and expanded on his theory. In response to Waldron and similar to Ely, Rosalind Dixon has argued that even in well-working democratic societies, things sometimes fall under the table.Footnote 26 Those things often include minority rights. For example, legislatures may have blind spots and not recognize the implications of their policies for certain groups or there may be pressure of holding a political coalition together which will provide for a less than ideal protection for rights in certain cases (legislative inertia) and this, too, can affect minorities (though it does not have to).Footnote 27 More broadly, Dixon, Landau, and others have emphasized that courts should take into account the political context they are operating in and be responsive to it – in other words, exercising more and different forms of scrutiny when democratic systems are working well as opposed to being largely dysfunctional.Footnote 28 This call for responsiveness speaks to the inherent connection of democracy and rights.
b) Connecting rights and democracy – A reminder
While Ely put forward a comparative institutional account, his theory is rooted in certain values and principles, even though values were precisely what Ely himself had tried avoiding with his theory. His concept of democracy, for example, is clearly informed by the principles of openness, equal participation, and inclusion – and these principles speak to the connection between democracy and minority rights. Jürgen Habermas has suggested that a good way of making Ely”s account more specific is by infusing it with a heightened ‘republican’ sense for the deliberative components of the legislative processFootnote 29 and Roberto Gargarella has similarly argued for strengthening the deliberative element of Ely”s account.Footnote 30 Following this suggestion, we might also draw on Philipp Pettit’s work as discussed in this symposium by Cormac Mac Amhlaigh.Footnote 31 Mac Amlaigh argues with Pettit that respect for democratic procedures is based on the idea of equality of citizens and the absence of the kind of domination that makes such equality illusory.Footnote 32 In other words, the need to protect democracy and minority rights both stem from the same concern of building a political system that recognizes autonomy, both individual and collective. And this in turn requires not just the ability of everyone to participate in collective decisions but implies for Mac Amhlaigh that individuals need to be able to challenge the laws made by the majority for their ‘compliance with the value of equal access to influence and the value of equal status’.Footnote 33 This furnishes an argument for particularly close scrutiny with regard to the rights of those groups who routinely do not enjoy equal access in the democratic sphere, thus connecting to Ely’s emphasis on groups that are structurally disadvantaged in the political process.
It also further emphasizes that an Ely-inspired understanding of democracy should ideally not be merely representative in a narrow sense, focusing on formally equal voting rights and regular elections, but must involve more than that. As such, it ties in with Rory O’Connell’s previous workFootnote 34 as well as his contribution to this symposium, where he similarly argues that democracy in such a richer sense is importantly based on equality, and therefore also committed to minority rights.Footnote 35
Of course, sceptics may suggest that such an understanding is going too far – that democracy is a contested concept and working out its meaning should itself be part of the democratic process.Footnote 36 Courts should thus exercise some restraint, and this is particularly true for a supranational court such as the ECtHR which needs to confront the fact that the Convention’s founding fathers were wary to include more specific democratic rights in the Convention to leave room for different, historically evolved local institutional arrangements.
Yet there are ways of striking that balance, as I have argued previously with Lisa KujusFootnote 37 and as it will become clear below. In this context here, it bears emphasizing that the core argument that democracy relies on a conception of political equality which must include minorities who must be able to invoke this value against the majority (albeit not necessarily in a court) is not based on a very thick or ambitious concept of democracy.
Vice versa, for those who are already convinced of the need for minority protection, it is important to remind ourselves that whenever minorities have truly gained recognition of their interests and rights, it is nearly always due to the efforts of multiple actors and institutions working together. In other words, it is not change that courts can bring about on their own. The history of the civil rights movement and the implementation of Brown v. Board of Education speak to this fact, as does a host of other studies on different jurisdictions.Footnote 38 The bigger and more radical the changes envisaged, the more this tends to be true. Courts are not lone warriors defending individual rights. If they are to be successful, they are typically embedded in broader networks of actors that mutually support and to some degree check each other. Civil society organizations, political parties and individual politicians, as well as other international or regional bodies, in Europe, for example, the Venice Commission or the European Union institutions, are all part of such a broader picture.Footnote 39
Responsive review in the ECtHR
Based on such an understanding, how should we conceptualize the ECtHR’s role? It seems to me that a good way of doing so is by borrowing the concept of responsiveness, which builds both on Ely’s original work, in particular when it comes to addressing who might count as a minority, and some of the more recent literature, in particular, Rosalind Dixon’s theory of judicial review which develops the concept of responsiveness for contemporary courts, albeit with some adjustments for the ECtHR.Footnote 40
This involves the ECtHR in protecting democracy not (only) by exercising restraint but by scrutinizing infringements of democratic rights. Concepts like that of a ‘democratic minimum core’Footnote 41 might help delineating between issues where states rightly should enjoy leeway, given the essentially contested nature of the concept of democracy, from others where some red lines must be drawn. This is a job for which supranational courts are in many ways better qualified than national ones because they are further removed from the relevant party politics and thus from supporting one or other political faction within states. That said, this will remain a challenging task, but it is not my focus in this paper.Footnote 42
Second, it involves the ECtHR in protecting both minorities and those institutions that represent and/or typically protect minorities in the existing political system, as Eva Brems has previously argued. That is, it means paying attention to attacks on civil society organizations as well as other watchdog institutions such as courts.Footnote 43 This is all the more urgent as civil society organizations are currently coming under pressure all across Europe, with states withdrawing funding, restricting spaces for protest and sometime even criminalizing their activities.Footnote 44 This requires saying a bit more what we mean by ‘minorities’ in this context.
Third, both should be more closely connected. This is, as we have seen above, in many ways the most challenging part – and this is what I focus on in the following.
To my mind, it would entail at least three things: First, a richer and thicker understanding of democracy that speaks to the importance of participation and inclusion, rather than the somewhat anodyne concept of representative democracy championed by the court.Footnote 45 This is not to say that the ECtHR should necessarily prescribe such an understanding of democracy when evaluating domestic democratic arrangements, but it should take them into account as a matter of being responsive to the concrete political system, for example, with regard to its procedural approach. This ties into existing theories and accounts of the ECtHR, in particular, Helfer’s theory of embeddedness, which draws on local context such as dysfunctional systems or pervasive violence for calibrating the intensity of judicial review as well as remedies.Footnote 46
Second, a democracy-based approach to minority protection, as put forward by Ely, should be about equal political rights and power first and foremost, focusing on identifying and remedying structural deficits when it comes to participating successfully in the democratic process. Ely himself framed this as a question of trust versus distrust, asking when we might trust the democratic process to adequately consider and respect the rights at stake. (I draw on Ely here since the protection of minorities is not much discussed in the more recent comparative political process literature.)
Third, the literature on responsive review suggests we should pay more attention to judicial statecraft, which encompasses inter alia how judges conduct the trial and communicate with the public. It also involves paying attention to remedies – and about how to design them in ways that are both effective but also ideally return some agency to democratic actors in the state in question, where we can trust themFootnote 47 - but given the constraints of the paper, I cannot address this latter aspect here. Importantly, responsiveness entails no one-size-fits-all framework, as Dixon emphasizes,Footnote 48 but rather opens up avenues for experimentation – and for an inclusion of democratic principles. This is also why it is an appropriate approach for a supranational court which is further removed from the particular cases and controversies it has to adjudicate and whose judges will need to overcome information deficits.
Protecting whom and how
With the theoretical foundations laid, it is now time to discuss some more concrete implications of such a responsive account for the ECtHR. As discussed, I want to focus here on how we might strengthen the connection between minority rights and democracy in a way that goes beyond the idea of those two things being poles between whom a balance must struck and is responsive to democratic realities.
There are a range of different concepts, doctrines and strategies one might consider in this context – and many more cases still – but given the scope of this paper, I want to focus on three core themes and suggest how these might speak to both concerns rather than primarily one of these, as they currently often do. These are, first, the Court’s turn to procedure and consensus arguments as tools for assessing the margin of appreciation, both of which are primarily geared towards protecting democratic space for manoeuvre; second, the concept of vulnerability which is the foremost tool for protecting non-dominant groups in need of protection, i.e. minorities. Third and finally, I briefly look at communication strategy and the trial which are among the most visible parts of the Court’s activity, its ‘public face’, and put forward some ideas of what a responsive account might look like in this context.
Protecting democratic choices and the commitment to the rights of all
The ECtHR has long been very careful to preserve states’ ability to make their own democratic choices. The margin of appreciation, proportionality analysis with its acknowledgment of rights limitations ‘necessary in a democratic society’ and consensus arguments all speak to this respect for democratic processes. Yet, as I have argued above, such respect hinges both on the actual functioning of democratic systems and on their and their members’ recognition of the equal autonomy of all humans, which requires that most members in a given society will be committed to the rights of all, including members of minority groups.Footnote 49 Both of these are things courts should police as a matter of a politically responsive account.
This means first and foremost paying attention to the existing democratic institutions and processes and their functionality and inclusiveness in concrete cases – and to ask to what degree they provide an argument for trust in those processes and accordingly restraint. It also involves paying more attention to how procedural arguments, proportionality and consensus arguments can help both uncover and address hostile prejudice against non-dominant groups.
a) The margin of appreciation: Proceduralism 2.0
The margin of appreciation was designed to allow the Court to adjust the degree of scrutiny it will exercise in concrete cases. To determine the margin of appreciation left to state authorities, the Court draws on a range of factors, from the nature of the right and right’s violation to the status of the victim, the existence of an internal or external consensus as well as whether national authorities have addressed the issue in a transparent and dialogic manner, engaging with all relevant stakeholders.
Many of these criteria are things we would and should consider from a responsive representation-reinforcing approach as well. Thus, the Court’s procedural approach as well as arguments about an internal consensus can and often are understood to protect democracy in the sense of leaving room for and reinforcing democratic decision-making.Footnote 50 However, the Court has not developed a coherent approach to the margin of appreciation in the sense of consistently applying all potential criteria relevant to the margin or indeed developing a way of ranking or balancing them.Footnote 51
A responsive account means first that the ECtHR needs to take into account broader background conditions prevailing in the respective countries, potentially by relying on existing indexes of democracy or freedom. This suggestion is already reflected to an extent in the existing case law of the Court, including its use of Art. 18 in cases of bad faith violations.Footnote 52 While this obviously comes with a risk of privileging some countries over others and reinforcing existing (pro-Western) biases in Europe, such background conditions should inform but not replace the more concrete procedural analysis the Court will undertake itself.
Second, insofar as the rights of politically vulnerable groups (see below) are concerned, the Court should consider adopting a more ambitious procedural approach, paying specific attention to the inclusion and participation of groups that are structurally disadvantaged, as opposed to focusing mainly on whether domestic institutions have discussed the rights at stake at all.Footnote 53 Such an approach would include not just hearing from affected groups but also showing engagement with their viewsFootnote 54 and may indeed – at least in some cases – involve giving them a role in the decision-making process itself.Footnote 55 It should thus matter whether a government is involved in restraining critical NGOs and whether it is offering meaningful options for such groups’ participation in law-making processes or not – as is currently the case in Denmark, Italy and a host of states involving in calling for respect for democracy.Footnote 56 Or to be more specific, in cases involving the accommodation of asylum seekers, we might consider whether the government in question has been in contact with refugee representatives and/or NGOs beforehand and given them a chance to provide comments on planned arrangements and taken those into account.
While the ECtHR would not ‘prescribe’ such an approach as a matter of Convention law, it could tailor its degree of scrutiny to the domestic processes in place, that is, the more involvement and participation by the respective groups, the more restrained the Court’s scrutiny. This is largely as things stand, with the exception that I have in mind a more demanding standard. Thus, responsive review implies paying at least some attention to how the issues have been framed in public debates and the media, given that lawmakers or administrators will be less likely to consider all interests fairly if they are under significant external pressure, for example, by far-right actors casting the issue in certain ways. In contrast, an absence of deliberation and serious engagement with minority issues should signal the need for more intensive judicial scrutiny, heightening our suspicion that there may be little in the way of a defensible reason for treating certain groups in a certain way. Doing so would make more clear that the more real and open democracies are, the more we can trust them to protect rights.
However, such a procedural approach raises questions, too, in particular, whether it opens the door too widely on the one hand and not widely enough on the other. We might worry that such an approach involves a shift away from a majoritarian to a deliberative model of democracy where a decision by the majority is not all that counts, but the process to reach that decision becomes central. Given that the Court does not require participation in the strict sense but merely takes it to be indicative of domestic actors’ willingness to seriously engage with minorities and minority rights, I am not persuaded by that argument though.
b) Beyond the margin of appreciation: Proportionality
While we may reasonably assume that the more an issue has been discussed, including with representatives of the groups concerned, the less we will encounter negative stereotyping and hostile bias, some substantive scrutiny will typically still remain necessary as a means for addressing racism or sexism and so forth. The early stages of proportionality analysis open a door for such queries, in particular the question if there exists a legitimate aim and whether the means chosen are rationally connected to that aim. That said, the analysis here will often be difficult. Thus, it is not easy to determine the legitimate aim of prohibitions of same-sex marriage or indeed the prohibition of the full-face veil in France. In the ECtHR’s decision on the French burqa ban, the majority accepted the French interest in protecting social interactions where people can see each others’ faces (‘living together’) as a legitimate reason for limiting women’s freedom of religion, while the minority did not.Footnote 57 What constitutes, for example, racism and what is a reasonable collective choice based on shared social expectations will often be hard to say – but it is a decision the Court needs to make. The requirement of necessity, too, can help screen out illegitimate motives, by demonstrating the non-suspect reason put forward for a rights infringement is not necessary which may point to the existence of other hidden motivations and bias.Footnote 58
c) Consensus arguments
Democratic responsiveness also suggests a more nuanced approach to arguments about a European or indeed internal consensus. Currently, the Court considers the existence of a European consensus on certain understandings of Convention rights as an argument for reducing states’ margin of appreciation, whereas the existence of considerable divergences on certain issues between member states is taken as an argument for more restraint by the Court.
The Court has also sometimes argued in terms of an existing internal consensus deserving respect, in the context of broader arguments for not interfering too much with domestic cultural and moral practices.Footnote 59 Such arguments speak to the origin of the margin of appreciation, developed in the well-known Handyside case, where the Court refrained from holding the prohibition of the dissemination of the ‘Little Red Schoolbook’ by British authorities a violation of the publishers’ rights.Footnote 60 While there is an intuitive appeal to such arguments and the protection of morals also features as part of the limitations clause for a range of Convention rights, at a second glace they are often problematic. As the ECtHR has acknowledged, too, in its recent jurisprudence with respect to an internal consensus, such arguments can assume a problematic quality, in the sense of legitimizing existing social stereotypes.Footnote 61 Thus, for example, in a series of cases on the rights of sexual minorities, the Court has emphasized that hostile majoritarian prejudice against certain minorities constitutes no reason for judicial deference.Footnote 62 Rather than the existence of an internal consensus per se, the Court thus more recently seems to turn to a more procedural approach in this regard, too – focusing on the existence of a ‘reasoned and thoughtful internal consensus’ instead.Footnote 63 This is clearly the right direction from a perspective of responsive review.
Problems also arise with respect to European consensus arguments, however. While the inclusion of a comparative perspective into the ECtHR’s jurisprudence does indeed reflect the responsiveness to emerging trends and developments in the member states and is welcome as such, the absence of an inquiry into the reasons why certain states adopt certain rules or frameworks remains problematic as Jens Theilen has pointed out.Footnote 64 There is, of course, a pragmatic reason for such an absence of a broader, more contextualized analysis, namely the associated workload for the Court. That said, the more Europe and the members of the Council are governed by far-right and sometimes semi-authoritarian governments, the more problematic the mere reliance on numbers becomes, and the more there is a need for a more qualitative approach that considers how and why the respective rules have been adopted.Footnote 65 Respect for democratic decision-making means that such standards are adopted in procedures that deserve such labels, which is not true for all member states at this point, some of which are today considered ‘flawed democracies’ or even ‘hybrid democracies’Footnote 66 or for that matter only ‘partly free’Footnote 67. To the extent that the Court already takes this implicitly into account, my argument should be understood as further encouragement.
Vulnerability and responsiveness
While everyone can address a complaint to the ECtHR and the European Convention does not specifically protect minorities, its guarantees have nevertheless often benefitted members of minority groups, in one way or another. In the Court’s jurisprudence – and indeed in human rights law – the concept of vulnerability has become a prominent interpretive tool. Some scholars such as Corina Heri have therefore understood vulnerability as part of what responsive approach in a human rights context would entail.Footnote 68
That said, vulnerability comes in many forms in the Court’s case law, such as vulnerability based on the dependency of certain groups such as children or mentally disabled people on external assistance, vulnerability based on state control (e.g. prisoners) or previous victimization (e.g. sexual abuse) and vulnerability as a result of previous discrimination or marginalization (e.g. LGBTQ+ communities, asylum seekers, etc.).Footnote 69 There is, perhaps unsurprisingly, no entirely precise definition of vulnerability in the Court’s jurisprudence. This parallels the situation in the academic literature where vulnerability for some has come to be understood as part of the conditio humana as well as part of broader efforts to reconceptualize human rights in the context of climate change and the resulting challenges for all living beings.Footnote 70 If it is used in this context to underline the fragility of all human existence and their dependency on the state of the earth and environment, in other contexts it serves to distinguish some groups from others, underlining inequality and is thus increasingly considered as an ambivalent concept in the literature.Footnote 71
But not just the definition, the function of vulnerability varies, too. Vulnerability arguments may serve to accord cases higher priority (though vulnerability is here understood in relationship to particular grave risks mainly), and they may provide reasons to overcome other barriers to admission. They may also serve to both expand (or decrease) the scope of the rights granted under the Convention (e.g. with respect to assessing the harm inflicted in the context of Art. 3 and 8 ECHR analyses) and provide arguments for calibrating the Court”s standard of review, in particular, in the context of Art. 14 cases.Footnote 72 In other cases, vulnerability arguments may provide argumentative fodder for arguing that states’ obligations should be understood in a certain way, for example, by providing arguments why certain vulnerable groups (migrants who are minors) deserve special protection, or not. Such arguments can blur into arguments about a margin of appreciation, for example, when the fact that vulnerable groups are involved is understood to limit states’ margin on certain issues. Such blurring occurs particularly when the case involves rights such as Art. 3 ECtHR where there usually is no margin of appreciation.
This blurring is understandable since the fact that people are vulnerable and state authorities have not acted to protect them begs for courts to step in to protect such groups. At the same time, we should nevertheless distinguish between the different uses of vulnerability. In particular, the question of how intensively a supranational human rights courts should exercise its scrutiny in particular cases is different from the question of what states’ obligations are in those cases. Consider as an example the 2019 Grand Chamber judgment on Ilias and Ahmed v. Hungary where the Court inter alia argued that the confinement of two asylum seekers in a transit zone did not violate their rights under Art. 3 ECHR.Footnote 73 While both applicants due to their personal histories suffered from mental health challenges mainly in the form of PTSD, the Court was not sufficiently convinced by the psychiatrist’s statement that this required treating them as particularly vulnerable to a degree that they could not be housed under such conditions, given in particular the relatively short duration of their stay (23 days) within the transit zone.Footnote 74 This example shows how vulnerability can serve as an argumentative tool for a more contextualized legal analysis that is responsive to particular people and situations. We may disagree with the Court’s assessment here or not, but the question whether the detention conditions constituted inhuman or degrading treatment under Art. 3 ECHR is distinct from the question how intensively the ECtHR should scrutinize the issue and whether states have or do not have – as in Art. 3 cases – a margin of appreciation.
Accordingly, the conception of responsiveness inbuilt in this kind of vulnerability analysis is a different one than the one put forward in this article so far. In Martha Fineman’s seminal and much cited account, vulnerability is seen as a way of moving away from a perspective on formal equality towards an understanding of human beings that stresses their embeddedness in various social contexts and their accordingly different exposure to risks of harm and misfortune.Footnote 75 Others such as Corina Heri have also sought to connect vulnerability to Martha Nussbaum’s work and Amartya Sen’s capabilities approach, arguing that its attention to different needs and situations of persons as well as the move towards a somewhat more empowering conception of capabilities strengthens our understanding of vulnerability.Footnote 76
Whatever the precise details, this literature makes clear that vulnerability is rooted in theories of justice. I want to push back against this concept of vulnerability insofar as it serves to determine the Court’s degree of judicial scrutiny, that is, insofar as it feeds into a theory of judicial review as opposed to a theory of justice. As we have seen, responsiveness plays a role in both theories. Yet, if theories of justice focus on substantive questions of what should be done, the focus of theories of review is on the institutional question of who should decide. Both constitutional and human rights lawyers frequently confuse these two questions – and this shows, too, in the writing on vulnerability. The second question is a question involving institutional responsibilities – it asks, in other words, if this is the kind of case where we want close scrutiny by a supranational court or if this is the kind of case where local authorities in principle can be trusted. In contrast, the first question is about what constitutes a treatment in line with Convention rights. (Of course, the answer to the second question has consequences for the first, as I discuss below at c.)
A responsive democracy-reinforcing approach to judicial review should in my view entail two things: First, political vulnerability (nothing hinges on the term) should be a standard and routinely applied criterion in assessing states’ margin of appreciation. Second, in this (and only this) context, we should conceptualize vulnerability differently than is currently the case, namely with respect to political vulnerability, in other words, focusing on non-dominant groups that are structurally disadvantaged in the political process. This is based on the assumption that individuals should normally be able to raise their concerns within the existing democratic and rule of law institutions and processes. Perhaps using another term than vulnerability such as minority status would help clarify that. This, however, means that when it comes to determining states’ margin of appreciation, we would need to rethink who counts as (politically) vulnerable.Footnote 77 In other words, the question of who needs what kind of care is not the right question to determine political vulnerability in this context, as a matter of determining the standard of judicial review, as opposed to determining the substantive content of rights and obligations under the European Convention.
This raises two further questions. The first is what the criteria in this regard must be – and I will get to this now. However, there is also a second question – and challenge – which I address below, namely the question of what will be left of a broader approach to vulnerability in substance if the result of the first question is that the Court should leave a wider margin of appreciation for states.
When it comes to defining what groups are in particular need of judicial protection, the recent representation reinforcement literature is largely silent. For Ely himself, two criteria were paramount: first, entrenched hostile prejudice, and second, that the respective group was sufficiently ‘discrete and insular’ to make it difficult to organize effectively as a political force.Footnote 78 Unfortunately, his approach is often hard to apply in practice and not always convincing. In particular, Ely’s criteria of discreteness and insularity have been subject to convincing criticism given that not infrequently groups that are neither discrete nor isolated face obstacles with regard to political mobilization and indeed prejudice too.Footnote 79 If we abandon those criteria accordingly, we face the difficulty of determining which (minority-)groups suffer disadvantages in the political process such that they cannot organize effectively and build political coalitions. And to the extent that the ECtHR is not just dealing with problematic laws, but administrative practices or judicial decisions, we need to pay attention to those contexts too, and the question of what kind of groups are structurally disadvantaged in the respective processes and institutions.
One response then might be to focus on formal criteria first and foremost, which implies special protection for those who do not hold voting rights, such as migrants without citizenship, children or indeed perhaps future generations. Another approach would have us focus instead on groups that have traditionally been subject to hostile prejudice, and this probably comes closest to Ely’s initial argument.
a) Voting rights
The problem with a formal approach is that on its own it will apply only to a relatively limited group of people. Consider, for example, a group like aliens whom Ely considered as a paradigmatic group in need of judicial protection.Footnote 80 This sounds intuitive, but at a second glance, we may wonder if the fact that aliens have no voting rights is a sufficient reason to consider them a minority in need of protection. In a society where many citizens have a migrant background, for example, we may think that the rights and interests of aliens might be adequately (virtually) represented, at least to some degree, by others who have since become citizens.Footnote 81 In addition, there may be civil society organizations and certain political groups or even parties who have a strong commitment to migrants’ rights. A similar argument could be put forward with respect to younger generations which are similarly sometimes seen in need of particular judicial protection in the context of climate change litigation, given that they are not represented in the political process. We may also wonder in both cases if the fact that there are reasons why the groups in question do not have voting rightsFootnote 82 should affect our approach to the judicial role in such cases. Vice versa, the fact that a group holds voting rights not always means that its members have a real chance to effectively mobilize politically or otherwise adequately represented in state institutions and processes. Ely recognized this in his discussion of homosexuals where, he argued, the nature of the prejudice often leads them not to disclose their identity and this complicates political representation.Footnote 83 All things considered, therefore, it seems to me that while the lack of voting rights may indicate that those concerned have no effective political voice, it should not be treated as comprehensive evidence for that fact. At the same time, the reasons for the exclusion from voting rights should not matter, since our concern here is not with exclusion as such, but with the question of how much trust the Court may place in democratic processes. To determine that, we need a more contextualized responsive approach that will depend on other factors besides voting rights.
b) Entrenched hostile prejudice
Such an additional factor might be the existence of entrenched hostile prejudice against certain groups. Here, the consideration is a somewhat different one. While such groups may in principle be able to organize politically, they will not be able to do so effectively because others will be likely to dismiss their claims out of prejudice and a sense that the people in question are sufficiently different such that one should not ally oneself with them or their cause. Typical examples for Ely were people of colour such as African Americans in the United States, but we might also think of prison inmates who often lose not only their voting rights but also elicit little sympathy in the wider population. But aliens qualified too to Ely. Not only did they not have voting rights but, as he argued, ‘(h)ostility toward “foreigners” is a time-honored American tradition. Moreover, our legislatures are composed almost entirely of citizens who have always been such. Neither, finally, is the exaggerated stereotyping to which that situation lends itself ameliorated by any substantial degree of social intercourse between recent immigrants and those who make the laws’.Footnote 84 All of this remains true in most European countries today.
Focusing on hostile prejudice would also tie in most directly with existing proposals in the literature emphasizing the importance of taking stereotyping into accountFootnote 85 as well as the Court’s standard vulnerability analysis under Art. 14, which is perhaps not accidentally geared at determining states’ margin of appreciation – and thus structurally related to US equal protection analysis under the Fourteenth Amendment.
Yet this too begs some questions. In some cases we may wonder if it is justified to speak of ‘prejudice’, given that there may be a reason for widespread antipathy for the group in question. Prison inmates are an example. We might also ask with Ely if the existence of entrenched prejudice on its own constitutes sufficient reason for special judicial protection. Ely answered that question in the negative as he rejected the need for special protection for women, who, he argued, should not be treated as a minority in the sense of his theory, because they were not in fact a numerical minority.Footnote 86 While they often faced entrenched prejudice, their numbers meant that they could be relied on to take their own interests into their hand. Insofar as this did not happen because women themselves shared certain sexist beliefs, correcting such a ‘false consciousness’ was not the role of courts, he argued.Footnote 87 As I have argued previously, this is a problematic argument if we think in terms of real political power as opposed to formal voting rights and numbers because women do suffer structural disadvantages in many political systems.Footnote 88
Nevertheless, where we are dealing with a numerical majority (e.g. women) or where there are prima facie reasons for distrust (e.g. convicted criminals), we may therefore have to supplement our analysis with a broader procedural approach, building on the discussion above. In other words, we would ask if those whose rights are affected have had the chance to present their own view of matters and whether political and/or legal actors have shown signs of sincerely engaging with their views. As I have argued above, we might even expect that they need to be represented in the decision-making process, though this clearly transcends Ely’s understanding.
c) Consequences
Ultimately then, both procedure and political vulnerability should matter to the Court’s assessment of states’ margin of appreciation. The more politically vulnerable the groups in question are, the less they have been heard and participated in the respective processes and the less open and democratic the system is more generally, the tighter the ECtHR’s scrutiny should be. Much depends on the language and style of existing discourses, in addition to existing formal avenues for participation and feedback. It matters whether we are discussing migrants’ rights in a context where migrants are routinely cast as criminals, for example, or not. It also matters whether governments are qualifying environmental groups as ‘eco-terrorists’ when evaluating whether states should have a large margin of discretion, for example, when it comes to limiting rights of assembly. For a less obvious example, consider the line of cases where the ECtHR has been dealing with the Russian minorities in Latvia and their unequal treatment, for example, when it comes to pension entitlements on the basis of work done outside of Latvia which are granted to Latvian citizens but not non-citizen residents.Footnote 89 The legal assessment of such measures would benefit from looking more closely at the status of such citizens in Latvian political and social life, their portrayal in the media and so forth to determine if their unequal treatment by Latvia was justified or not. In other words, the more racially coded, the more misogynistic or russophobic and so forth the respective discourses are, the less there is a reason for the ECtHR to defer to states. Moreover, such broader background conditions should also play a role in assessing not just legislative and administrative measures but domestic courts’ judgments: While the ECtHR is right to focus on whether domestic bodies including courts have considered their obligations under the Convention and taken the rights and interests of the applicants into account, such bodies do not operate in a political vacuum and this, too, should matter. Finally, it also means that issues that do not receive much attention at all in the public – say rights of people in certain institutions, such as children in orphanages – might warrant closer scrutiny.
This takes us to the second question, that is, the implications of such an approach for the broader vulnerability analysis. This is relevant insofar as we might conclude, for example, that some groups are not in fact politically disadvantaged, even while they may qualify as vulnerable in other respects. For example, while elderly people are certainly often vulnerable to mistreatment, it is less clear whether they should count as a group that is structurally disadvantaged in the political process. For while some elderly people may of course be hampered by age to participate effectively in political parties and organizations, this is not true for all group members, and in many, though not all political systems, the elderly seem to hold considerable political power. If so, our analysis would imply a greater margin of appreciation for states in this regard, regardless of whether in the concrete case elderly applicants were in a vulnerable situation or not. This in turn might then mean that it would be harder for the ECtHR to engage in detail with the situation at hand. In other words, its trust in domestic institutions would forestall an engagement with the details of the cases and applicants who may otherwise be considered vulnerable.
Such a conclusion sits uneasily with the more recent literature on vulnerability which often emphasizes the need for focusing on the specific case and the plaintiffs involved.Footnote 90 Yet, to my mind this consequence follows from the broader politically responsive account of the ECtHR discussed above. If we want the Court to exercise deference if domestic processes are overall working well, this means that some cases will fall through the cracks. I think that this is a necessary consequence, but whether one agrees will likely depend on one’s broader view of the role of the Court as an institution designed to provide individual justice foremost, or in more structural terms, for example, as constitutional court of EuropeFootnote 91 or indeed in terms of protecting democracy.
That said, for most groups not much would change under a more politically responsive approach. In the toxic political climate prevailing in many member states currently, asylum seekers, for example, would clearly qualify for increased judicial scrutiny, and in most contexts, migrants (with and without citizenship) would, too, whether or not these persons are otherwise particularly vulnerable to mistreatment (as minors or similar). Some of the more recent case law of the ECtHR is gesturing in this direction. Thus, in its 2024 judgment in Wa Baile v. Switzerland, the Court found a violation of Art. 14 in case where Swiss police officers had sought to check the identity of a dark-skinned Swiss citizen at Zürich railway station. In light of existing racist bias in the Swiss police forms and the absence of countervailing training programs, the Court reversed the burden of proof in the case at hand and found the check to constitute racial profiling.Footnote 92 While vulnerability did not play a major role in the Court’s reasoning as such, it framed the analysis on the merits, with the Court emphasizing that ‘States have an obligation to secure the effective enjoyment of the rights and freedoms under the Convention and that this obligation is of particular importance for persons belonging to minorities, because they are more vulnerable to victimization’.Footnote 93 This kind of broader structural analysis is precisely what we would want in order to determine the role of the Court in such cases, as well as its degree of scrutiny which in turn may affect the distribution of the burden of evidence in such cases.
Communication and trial procedures
The protection of minorities will by necessity often conflict with deeply held majority views or interests; such decisions may generate internal opposition and sometimes resistance and pushback. Both the European and the Inter-American Court of Human Rights have in the past faced pushback, leading some states even to withdraw from the respective systems. In Europe, such threats are hanging over the recent efforts at reform, and as some argue, have already prompted a retreat from some of its more progressive lines of jurisprudence.
However, from an empirical perspective, recent scholarship suggests that the worries about pushback or indeed backlash may be overblown,Footnote 94 suggesting that the argument is often instrumentalized in order to push the Court in a more conservative direction and that we should be wary to assume that international courts engaging in minority protection will inevitably encounter backlash.Footnote 95 Studies have shown that international courts are often able to weather pushback quite well institutionally and while there are some examples of international courts being destroyed by negative reactions – such as the SADC tribunal – this remains a very rare occurrence.Footnote 96 While courts should take risks of backlash seriously, the latter comes in different forms, suggesting the need for different responses.Footnote 97 Broadly speaking, the literature suggests that courts should neither adopt a policy of comprehensive deference nor a business-as-usual approach but rather tailor their responses smartly and seek civil society support and adopt a range of further strategies depending on context.Footnote 98
A responsive approach can make room for such considerations for example as regards the Court’s communication, as well as highlight that the protection of minorities is not only a task for courts, or indeed the ECtHR, but should be a shared enterprise of multiple actors – and seek to attract support for such an understanding in the public. While courts such as the ECtHR may be able to withstand pressure and negative consequences when they decide mega-political issues – which will often include the protection of minority rights – they are not necessarily the best institution to grapple with such issues.Footnote 99 This has implications for their communication strategy and the trial procedures inter alia.
Rosalind Dixon highlights the importance of judicial statecraft in her comparative work, emphasizing inter alia the need for engagement with civil society actors as aides in implementing the decision.Footnote 100 Dixon emphasizes five elements in this regard: (1) sensitive timing, (2) and (3) speaking directly with the losing party in the decision and showing respect for its position, (4) a narrative combining local and global elements and (5) engagement with civil society actors as aides in implementing the decision.Footnote 101
Both the conversation with the losing party and engagement with civil society would benefit from developing a better communications strategy, in an effort to strengthen media coverage and thus contribute to furthering a public discussion on it. Silvia Steininger points in this regard to the success of the Inter-American Court with its victim-centred approach, whereby individual plaintiffs and their stories are shared with the public, often accompanied by visual content, as opposed to the somewhat more restrained approach to the European Court, which only refers to applicants.Footnote 102 The ECtHR, too, has started to innovate in this regard, publishing inter alia stories of a range of different cases, their resolution and implementation.Footnote 103 Nevertheless, generally speaking the Inter-American Court is more active when it comes to outreach, seeking to engage not merely with experts, state delegations and human rights lawyers but also with other human rights institutions and the broader public.Footnote 104 Nevertheless, more could be done, albeit that it is not always easy for the Court to do it. Nevertheless, it is startling to see how often, for example, German news will report about hearings held by the German Constitutional Court, whereas this is much less true for the European Court of Human Rights, especially if Germany is not itself a party, in which case there is barely any reporting by standard news outlets.Footnote 105 Yet, if we are to realize a European human rights system in practice and seek to ‘embed’ the Convention in domestic systems,Footnote 106 reporting on important cases in the ECtHR seems core if we want people to see justice done, rather than hear about a decision limiting states’ ability to decide freely afterwards.Footnote 107
To encourage this, another strategy, employed more typically in the Inter-American system, might help, that is, to hold hearings in different places, thus directly engage with local stakeholders. The European Commission of Human Rights used to conduct such hearings for purposes of fact-finding and occasionally the Court has done so too, but this tends to be rare and is not necessarily always conducive if the purpose is to establish the facts.Footnote 108 However, the importance of hearings might not be as a vehicle for fact-finding but rather as a way of engaging national publics and national media more directly, in particular, in cases dealing with the protection of minority rights against strong public opinion. A public hearing in the respective country could highlight the importance of the issue and likely attract more press coverage in the national media, thus providing for a more open debate than if the case is dealt with by some foreign judges in Strasbourg, far away from local actors. All of this would require considerable resources and could not be a strategy employed in many cases. Yet, where the Court confronts entrenched opinions and/or entrenched structural deficits affecting many people, it might still be worth experimenting with.
Conclusion
Current developments suggest that we are moving towards a world where public law and international law do not command the kind of legitimacy they enjoyed in the past decades.Footnote 109 Human rights and their protection appear increasingly fragile, often ignored and at other times hijacked by right-wing forces to fit their own agendas. The role of courts when it comes to protecting minorities is therefore an ambivalent one. As a matter of legal theory, this is often where the justification for judicial intervention is strongest – because minorities may not be able to rely on democratic processes to the same extent as majorities to protect their interests. On the other, it is also where courts often encounter pushback in practice. Commitment to principle and judicial strategies at self-preservation thus seem to pull in opposite directions.
How should we respond to that? One response is to hold firm to the belief that human rights are individual and universal and must mean the same for everyone everywhere in the world, as Roosevelt once said.Footnote 110 Yet it is also true that human rights and courts – constitutional and international – have expanded significantly over the past year, with few political issues remaining that today cannot be clothed in the language of rights. This, I believe, raises legitimate questions about democratic agency that far-right actors often harness to push against courts. Not only do these actors have little credibility to speak as democrats, but they also ignore that there can be no serious commitment to democracy without some commitment to equal rights. Courts and lawyers should seek to insert themselves in that discourse and think of ways to combine those more closely. This paper has put forward some suggestions and examples of what this might mean for the practice of the European Court of Human Rights and what a politically responsive account of the Court that speaks to its commitment to democracy and minority rights might look like.
Funding statement
Prof. of German and International Public Law and Comparative Law, University of Münster. This research is part of a broader research project on comparative human rights law, funded by the German Research Foundation (DFG), project n. 458456362. I am grateful to a number of commentators, in particular Cormac Mac Amlaigh, Janneke Gerards, Rory O’Connell, Esra Demir-Gürsel, Mikael Madsen, Nora Markard, Itamar Mann, Sofia Reca Milanta and Veronika Fikfak and to Paula Küppers for editorial help.
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