CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ

THE FIGHT AGAINST STEREOTYPES AS AN INSTRUMENT OF EUROPEAN …

2. The relevant legal framework A number of studies suggest that discrimination can be the result of prejudices and negative stereotypes. Stereotypes are sometimes seen as the origin of structural discrimination 2 or as “the mechanisms that underlie discrimination”. 3 Some experts regard measures against stereotypes as a necessary element of the fight against hidden discrimination, which, very often, not even the perpetrator of discrimination is fully aware of. 4 The elimination of stereotypes has thus become the goal of a new generation of anti-discrimination law and minority protection. As international conventions for the protection of human rights and the protection of minorities, national constitutional norms and EU anti-discrimination directives usually do not contain the term stereotype, it is necessary to clarify whether the progressive interpretation of existing anti-discrimination standards may support the fight against stereotypes. The legal concept of stereotypes is therefore based primarily on the relevant case law of European and national courts on the issue of non-discrimination. The case law deals with the question which measures shall be taken against which discriminatory stereotypes in the light of human rights and legal principles. A legal approach towards discriminatory stereotypes may be based on standards requiring positive action in favor of minorities. Article 6 of the Framework Convention for the Protection of National Minorities can serve as a starting point, as according to this norm the Contracting Parties shall encourage a spirit of tolerance and intercultural dialogue and take effective measures to promote mutual respect and understanding and co-operation between all persons living in their territory, irrespective of those persons’ ethnic, cultural, linguistic, or religious identity. Education, culture, and media are listed as relevant areas. When the Advisory Committee, established under the Framework Convention for the Protection of National Minorities, criticized in 2002 that members of national minorities, in particular Roma, asylum seekers and migrant workers, were subjected to negative media stereotypes in a number of European states, it made reference to the common practice of international human rights bodies. 5 In 2005, Rainer Hofmann, the former chairman of the Advisory Committee, concluded that general norms of international law imply the obligation of states to promote intercultural dialogue and inter-ethnic tolerance. Hofmann stressed the importance of such measures particularly in times of growing xenophobia, racism, and anti- Semitism. 6 Also, the European Commission against Racism and Intolerance (ECRI), which was set up in 1993 by the Council of Europe as an advisory and independent body, has been focusing on the link between stereotypes and discrimination. Although the mandate of ECRI does not explicitly mention stereotypes and prejudices, 7 it is clear that the fight against racism, 2 See e.g. GERARDS, Janneke. The Discrimination Grounds of Article 14 of the European Convention on Human Rights. Human Rights Law Review . 2013, 13(1), pp. 99-124. 3 As for the context of gender discrimination, see TIMMER, Alexandra. Toward an Anti-Stereotyping Approach for the European Court of Human Rights. Human Rights Law Review . 2011, 11(4), pp. 707-738. 4 For a review of relevant academic literature and more criticism, see MITCHELL, Gregory. Antidiscrimination Law and the Perils of Mindreading. Ohio State Law Journal . 2006, 67, pp. 1023-1121. 5 See, for example, Article 30 of the Copenhagen Document of the Conference on Security and Cooperation in Europe. 6 HOFMANN, R. Menschenrechte und der Schutz nationaler Minderheiten. ZaöRV 65 (2005), pp. 587-613, 604. 7 Committee of Ministers Resolution Res(2002)8 (13 June 2002).

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