Call for consistent incorporation of super-diversity considerations in the European Court of Human Rights’ (non-discrimination) jurisprudence

Super-diversity may not yet be a term of art in the field of fundamental rights, courts are undoubtedly confronted with cases that de facto concern super-diversity, understood here as referring to various layers of ethnic population diversity and the related differential rights of the distinctive groups. Selected cases of the ECtHR are analysed in light of a theoretical frame of analysis concerning rights, interpretation of and legitimate limitations to rights. The comparison of the reasoning in these cases reveals marked differences in approach. The working paper proceeds with a call for a consistent incorporation by the ECTHR of ‘super-diversity’ considerations in the reasoning of judgments on fundamental rights of the respective groups. This would not only entail a refinement of the Court’s non-discrimination jurisprudence, but also to a rise in coherence and consistency of the Court’s overall jurisprudence, in line with the rule of law. The conclusion consists of some recommendations for the ECtHR on how it could proceed when developing its jurisprudence in this respect.