Integration reasoning at the ECtHR: Challenging the boundaries of minorities’ citizenship
| Published date | 01 March 2020 |
| Date | 01 March 2020 |
| DOI | http://doi.org/10.1177/0924051920901371 |
| Subject Matter | Articles |
Article
Integration reasoning at
the ECtHR: Challenging
the boundaries of
minorities’ citizenship
Kristin Henrard*
Erasmus School of Law, the Netherlands
Abstract
This contribution zooms in on a particularly disconcerting development in the jurisprudence of the
European Court of Human Rights, that is visible in several recent cases brought by religious
minorities with a migrant background, in which the Court accepts – in the name of (requirements
for) integration – far-reaching restrictions on the rights of these religiousminorities with a migrant
background to be respected in their own religiously inspired way of life. The Court furthermore
glosses over a context of Islamophobia and related stereotypes, thus failing to identify and counter
instancesof discriminationon grounds of religion.The article argues that theECtHR in these cases not
only drifts awayfrom the counter-majoritariancore of human rights protection, turning several of its
steady linesof jurisprudence favourableto (the effective protectionof) minorities’ fundamentalrights
on their head, but also allows States to basicallypush religious minorities with a migrantbackground
out of the public space/public schools, in the name of social integration – an integrated society.Ulti-
mately, States are contesting the substantive citizenship of religious minorities with a migrant back-
ground and the Court, unfortunately, enables them to exclude and marginalise these religious
minoritieswith a migrant background.The Court thus disregardsthe foundational value of theright to
equal treatment for the human rights paradigm, and moves away from an equal and inclusive citi-
zenship. Put differently, the Court enables governments to dress up Islamophobic, exclusionary
agenda’s witha human face, thus challengingthe boundaries of citizenshipin the name of ‘integration’.
Keywords
ECtHR, minorities, integration, citizenship, majoritarianism
Corresponding author:
Kristin Henrard, Professor of Fundamental Rights and Minorities, Erasmus School of Law, Rotterdam, the Netherlands.
E-mail: henrard@law.eur.nl
*Professor of Fundamental Rights, with a particular focus on fundamental rights of persons belonging to vulnerable groups,
including minorities, Erasmus School of Law, Rotterdam.
Netherlands Quarterly of Human Rights
2020, Vol. 38(1) 55–74
ªThe Author(s) 2020
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DOI: 10.1177/0924051920901371
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1. INTRODUCTION
The jurisprudence of the European Court of Human Rights (‘ECtHR’ or ‘Court’) is often a source
of inspiration for other courts, both national and international.
1
Notwithstanding the ECtHR’s
status as one of the most widely respected international human rights courts, the Court’s jurispru-
dence has also been the object of (serious) criticisms.
2
For example, in relation to claims put
forward by ethnic, religious and/or linguistic minorities, traditionally, the lack of a minority
specific provision in the European Convention on Human Rights (‘ECHR’ or ‘Convention’)
translated into a restrictive interpretation of the Convention rights.
3
In the meantime, the Court
embraces, at least at the level of principles, real and substantive equality (going beyond mere
formal equality)
4
and recognises that the Convention also encompasses the right to be respected in
a separate, minority way of life.
5
Nevertheless, as is more fully analysed elsewhere, these promis-
ing principles do not necessarily translate into an optimal protection of the fundamental rights
concerned. This is due to the broad margin of appreciation the Court tends to grant States in
complex questions about the accommodation of religious and ethnic population diversity.
6
This contribution zooms in on a disconcerting development in the Court’s jurisprudence that is
visible in several recent cases brought by religious minorities with a migrant background,
7
and
more particularly Muslim minorities. In these cases the Court accepts – in the name of (require-
ments for) integration
8
– far-reaching restrictions on the rights of these minorities to be respected
1. References to the jurisprudence of the European Court of Human Rights can inter alia be found in judgments of the
Inter-American Court of Human Rights, and the Canadian Supreme Court, see Ricardo Canese v Paraguay, Merits,
Reparations and Costs, Judgment, Inter-Am. Ct. H. R. (ser. C) No. 111, 89-90 (31 August 2004) and Alberta v Hutterian
Brethren of Wilson Colony [2009] S.C.R. 567 (Can.), paras 90, 128-131, respectively.
2. Inter alia Patricia Populier, Sarah Lambrecht and Koen Lemmens (eds), Criticism of the European Court of Human
Rights: Shifting the Convention System: Counter-Dynamics at the National and EU Level (Intersentia 2016).
3. See inter alia the identification of the ‘missed synergies’ in Kristin Henrard, ‘A Patchwork of ‘successful’ and ‘missed
synergies’ in the Jurisprudence of the ECtHR’ in Kristin Henrard and Robert Dunbar (eds), Synergies in Minority
Protection (CUP 2008) 314 ff.
4. In its seminal Thlimmenos judgment (2000), the ECtHR recognised for the first time that the prohibition of discrimi-
nation is also violated when States, without objective and reasonable justification, fail to treat differently persons whose
situations are significantly different: Thlimmenos v Greece App no 34369/97 (ECtHR, 6 April 2000) para 44.
5. In Chapman (2001), the Court acknowledged for the first time that Article 8’s right to privacy, family life and home also
encompasses a right to a traditional way of life, following which States need to take into account Roma’s special needs
and characteristics when making and applying laws: Chapman v UK App no 27238/95 (ECtHR, 18 January 2001) para
96.
6. See for a more extensive reasoning in relation to religious minorities: Kristin Henrard, ‘How the European Court of
Human Rights’ concern regarding European consensus tempers the effective protection of freedom of religion’ (2015)
4(3) Oxford Journal of Law and Religion 1, and in relation to Roma, the parts pertaining to the ECtHR in Kristin
Henrard, ‘The Council of Europe at the rescue of a paradigmatic case of failed integration. About Roma, the multi-
dimensional nature of integration, and how promising general principles can meet flawed applications in practice’
(2010-2011) 10(1) European Yearbook on Minority Issues 271.
7. Given the fact that two more recent cases against Belgium on similar facts as S.A.S. have been argued along similar lines
by the government and the ECtHR respectively, one can indeed denote a new line of jurisprudence. See also Marcella
Ferri, ‘Belkacemi and Oussar v Belgium and Dakir v Belgium: the Court again addresses the full-face veil, but it does not
move away from its restrictive approach’ (Strasbourg Observers, 25 July 2017)
07/25/belkacemi-and-oussar-v-b elgium-and-dakir-v-belgium-the-cou rt-again-addresses-the-full-face -veil-but-it-does-
not-move-away-from-its-restrictive-approach/> accessed 8 December 2018.
8. As will be more fully discussed, the Court uses virtually interchangeably ‘respect for the minimum requirements of life
in society’, ‘living together’ and ‘social integration’ (as legitimate aims).
56 Netherlands Quarterly of Human Rights 38(1)
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