When tracing convergence and divergence in international human rights law, matters of proof and, more particularly, the burden of proof, can arguably not be absent from the discussion. Indeed, there is a growing acknowledgement that the standard of proof and the allocation of the burden of proof over the parties also influence the substance of the norms concerned.Furthermore, given the nature of human rights as rights inherent in being human, their actual enjoyment is essential. In the words of the European Court of Human Rights (ECtHR), rights should not merely be theoretical and illusory, but also practical and effective. While there are many factors that impact this effective enjoyment of rights, judicial review and judicial protection is of crucial importance. When one's rights are not respected and one seeks redress through a court of law, questions of proof are essential. If one cannot furnish proof to the extent required by the law, one will not obtain redress and, ultimately, one cannot enjoy one's fundamental rights. Hence, it is not far-fetched to claim that the effective protection of fundamental rights hinges on the determination of the standard of proof and the allocation thereof between the parties. Furthermore, as the allocation of the burden of proof is closely intertwined with other central doctrines, such as the margin of appreciation, a better understanding of the former will also impact the latter.

The general rule regarding the allocation of the burden of proof is that each party has to prove its alleged claim and the facts upon which it relies, as captured in the Latin phrase ‘onus probandi incumbit actori’.The problem for victims of human rights violations generally, and victims of discrimination in particular, is that they most often do not have access to the necessary evidence to support their case. These evidential difficulties in turn carry the risk of undermining the effective protection against discrimination.

A welcome means to counter this risk is the development of the special allocation of the burden of proof, or the shared burden of proof. Following the special allocation, the applicant merely has to establish a prima facie case of discrimination, after which the defendant has to prove that no discrimination has occurred. In this way, the burden of proof is divided over both parties and no longer rests predominantly on the claimant.

Introduction

In line with the theme of a book concerning synergies in minority protection, this chapter sets out to analyse the strands of the European Court of Human Rights jurisprudence which might enable the identification of synergies with developments under other instruments. In the first part of the chapter, the jurisprudential developments in relation to the synergy topics identified elsewhere will be evaluated, more specifically an increasing attention to the principle of substantive equality (in relation to minorities), to the participatory rights of members of minorities, as well as to the need for minority language rights and educational rights, while exhibiting extra attention to the particularly vulnerable position of the Roma (Gypsies).

The second part of the chapter will then go on to discuss case law relevant to the broad underlying theme of the above-mentioned synergies, namely special attention for the minority phenomenon and the specific (protection) needs of persons belonging to minorities, including in terms of general (not minority-specific) human rights.

In the pre-1995 case law of the supervisory organs of the ECHR, little or no attention was paid to the special needs of minorities. While the Court seems increasingly aware of the especially vulnerable position of minorities, and adopts important theoretical approaches with considerable potential for minority protection, the actual protection flowing from the case law is far from consistently positive.

Introduction

‘Synergy’ is a word which conveys a range of meanings, and the particular ways in which it is understood for the purposes of this collection will be explored in this introduction. In our view, the notion of ‘synergy’ is particularly relevant to the protection of minorities in international law, owing to the diversity of relevant instruments and international institutions, and we shall therefore precede our discussion of the notion of ‘synergy’ with a broad summary of the most important developments in relation to minority protection, both at a global and at a regional level. We shall conclude with a consideration of the limits of the synergies explored in this collection, and with a speculation, informed by the contributions to this collection, on the future prospects for synergies in minority protection.

Broad developments in relation to minority protection at global and regional level

The broad history of the development of protection for minorities in international law is generally well known. So, too, are the limitations of the various mechanisms for minority protection which have existed at each stage in this development. Prior to the First World War, such protection as existed in international law was generally ad hoc, based primarily on bilateral treaties in response to particular conflicts or potential conflicts involving kin-groups or co-religionists. It was also usually limited in scope, and included only limitations on discrimination, a right to respect for freedom of religion, and, in some cases, a limited right to freedom of expression – or at least a freedom to use a minority language without restriction in private life.