European Court of Human Rights: an analysis from perspectives of inclusion and the recognition of differences in identity

Author(s)

Vanessa Capistrano Ferreira

• Document type: Doctoral Thesis
• Press: Marília. 2019-04-18.
• Institution: Universidade Estadual Paulista (Unesp). Faculdade de Filosofia e Ciências. Marília
• Defense date: 2019-03-26
• Advisor: Tullo Vigevani; José Geraldo Alberto Bertoncini Poker

Abstract

Based on a factual analysis of cases of racism and intolerance (Article 14 of the European Convention on Human Rights) tried by the European Court of Human Rights, this study seeks to identify the current limits to the promotion of social inclusion and the recognition of differences in Europe. Within the perspective of Jürgen Habermas's Reconstructive Theory of Law and Axel Honneth's Theory of Recognition, we are able to dispute the supposedly exclusivist application of human rights in Europe through the exposure of jurisprudential failings, which have substantially compromised their effectiveness and democratic legitimacy within the social sphere. We will also argue for the consequences of a system of rights put into effect and legitimized by the particularistic means of a majority-Western culture that hides the arbitrariness and oppression to which continually inferiorized groups not included in modern law are subjected. Finally, we also hope to question the very judicial order of the democratic Rechtsstaat in an attempt to see beyond its vicissitudes in the international context in light of the possible emancipatory consequences today. This investigation will use the rational reconstruction method as a methodological procedure in order to interpret the current jurisprudence of the European Court. The focus will include the most representative cases intended to combat identity-based discrimination in Europe (violations of Article 14 of the ECHR), such as those that are outlined in the official documents known as the Country Fact Sheets (1959- 2010) and the Factsheet – Racial Discrimination (2013). The cases of 35 East African Asians v. the United Kingdom, Abdulaziz, Cabales and Balkandali v. the United Kingdom, Sander v. the United Kingdom, Velikova v. Bulgaria, Anguelova v. Bulgaria, Nachova v. Bulgaria, and D.H and others v. Czech Republic were selected as examples of jurisprudence to be considered in this study. In terms of analyses, this study seeks to outline the most current criticisms of the interactions between European social subjects and Western political-legal institutions of protection while still exposing its failings in terms of recognizing differences in identity and hurdles to social inclusion. In order to improve the theoretical landscape proposed, authors such as Hemme Battjes, Marie-Bénédicte Dembour, Betty Hart, Anuscheh Farahat, and Yasemin Soysal will be considered. Thus, the development of this study shall be centered around a predominantly bibliographical and document-based investigation which focuses on a methodological and theoretical pluralism in order to integrate and articulate a variety of pragmatic attitudes and perspectives on research. The expected result is to show the problems of continued omissions by the European Court involving the recognition of other ways of life, thus testing the hypothesis that traditional frameworks are still present in the Court's deliberations. This presence affects not only the existing egalitarian premisses within the political and philosophical conceptualization of the Rechtsstaat, but primarily the resolidarization of the social ties brought about in the recognition of the specificities of each person and of all people, without inferiorization or discrimination. Thus, this study focuses on the urgent need for the expansion of the rights of equality and respect by considering the principle of difference as a broad form of social inclusion. (AU)

• FAPESP's process: 15/04252-0 - European Court of Human Rights: an analysis from the perspective of inclusion and recognition of identity differences
• Grantee: Vanessa Capistrano Ferreira
• Support Opportunities: Scholarships in Brazil - Doctorate