The relationship between women’s right to equality and justifications for restricting that right has been, as Meghan Campbell observes, ‘overlooked, understudied and undertheorised’ (p.2). Hanging in the Balance: The Function of Justification in Achieving Women’s Equality serves as a corrective by meticulously analysing how apex courts adjudicate this relationship in Canada, India, South Africa, the UK and US.
The core normative argument of the book is compelling. The equality-stage (which assesses why a law interferes with the normative concept of equality and non-discrimination) and the justification-stage (which assesses the defence of the law) ought to be in an asymmetric relationship. While the equality-stage ought to be protected against dilution by justification reasoning, the justification-stage should be guided and enriched by a relational and contextual approach that centres women’s substantive equality. In this, substantive equality – holding different meanings across jurisdictions – matters for both stages of equality and justification.
Campbell’s book stands alongside her longstanding research on women’s equality (e.g. here, here, and here). But the significance of her argument extends far beyond the grounds of sex and gender. The author herself leaves open the possibility that her claims ‘may still have salience for other grounds of discrimination’ (p.7). Taking cue, I offer preliminary reflections on how Campbell’s key analytical arguments lend themselves to racial inequality claims, with a focus on the jurisprudence of the European Court of Human Rights.
Justificatory avoidance
To start with, in chapter 2, Campbell persuasively suggests that ‘the equality assessment is conducted in the shadow of the justification-stage’ (p.68). In contrast to women’s constitutional equality claims, in a substantial body of racial inequality claims before the ECtHR, the equality assessment is often conducted in the shadow of avoiding the justification-stage altogether. To be clear, this avoidance-tendency does not yield a robust equality-stage that engages with racialised harms. Instead, to avoid shifting the shifting the burden onto respondent states to justify racial discrimination, the Court tends to raise the evidentiary threshold for racialised minorities at the equality-stage, often requiring them to establish racist intent ‘beyond reasonable doubt’. While much scholarship, as a result, focuses on the equality-stage of racial inequality claims, Campbell’s analysis broadens the conversation and shine a spotlight on the distinctive role of justifications in (racial) inequality claims.
Justificatory dilution and de-racing
Article 14 of the European Convention on Human Rights (ECHR) secures the enjoyment of ECHR rights and freedoms without discrimination on any ground such as, inter alia, sex, race, colour or ‘other status’. Campbell identifies how constitutional courts reach for justification concepts when adjudicating the equality-stage and, as a result, distort or minimise the harms of women’s inequality (ch 2). The equality-stage under Article 14 is also prone to such distortion. For one, justification occupies a central place in the Court’s definition of discrimination. Even though the wording of Article 14 makes no mention of a justification stage, the Court has built-in the justification test into what constitutes ‘discrimination’: ‘there is discrimination if the distinction at issue does not pursue a legitimate aim or the means employed to achieve it do not bear a reasonable relationship of proportionality to it’ (Ponomaryovi v Bulgaria at [51]). Discrimination, so defined, is stripped of any engagement with the substantive wrongfulness of discrimination and instead reduced to the absence of justification. In addition, the Court frequently commits itself to an Aristotelian formula of treating likes alike and unlikes unalike. Campbell argues that this kind of commitment to sameness and difference makes courts more liable to borrowing justification concepts to fill the vacuum of formal equality. This pattern plays out in racial inequality claims too.
An early example is that of Abdulaziz, Cabales and Balkandali v UK, when the ECtHR adjudicated the Convention-compatibility of immigration restrictions on family reunification. The applicants argued that the immigration rules at the time, although facially neutral, discriminated based on race because they disproportionately impacted immigrants from the New Commonwealth and Pakistan. At the equality-stage, however, the Court reached for the ‘main and essential purpose’ of the rules which was to ‘curtail “primary immigration”’. This, per the Court, meant that the relevant immigration restriction ‘was grounded not on objections regarding the origin of the non-nationals wanting to enter the country but on the need to stem the flow of immigrants’ (at [85]). The apparent legitimacy of the aim bleeds into and clouds the Court’s assessment of the racialised harms of the immigration rules at the equality-stage.
At the justification-stage, courts are required to calibrate the intensity of the standard of review to determine how closely they will scrutinise justifications. A non-weighted approach, Campbell argues, fails to take women’s equality seriously (ch 4). A similar non-weighted approach can be seen in ECHR case-law. On the one hand, the Court requires ‘very weighty reasons’ for nationality-based discrimination to be compatible with the Convention. On the other hand, a wide margin of appreciation is usually afforded to states when it comes to ‘general measures of economic or social strategy’ (e.g. Bah v UK at [37]). Nationality hangs in the balance but as one among many factors and is treated equivalent to socio-economic considerations. These factors appear to be pulling in opposite directions, and to resolve this tension the Court typically de-races the calibration exercise. At times, it removes racial grounds from the equation by electing another ground of discrimination as relevant. In Bah, for example, it disentangled ‘immigration status’ from racial grounds and widened the margin of appreciation because immigration status apparently entails an ‘element of choice’.
Alternatively, the socio-economic context of the measure dominates the calibration exercise despite nationality-based differentiation. When analysing the justifiability of nationality-based differentiation in Savickis and others v Latvia, the Court held that ‘in a field where a wide margin is, and must be, granted to the State in formulating general measures, even the assessment of what may constitute “very weighty reasons” for the purposes of the application of Article 14 may have to vary in degree depending on the context and circumstances’ (at [206]). Drawing on Campbell’s diagnostic analysis in chapter 4, decisions related to race (particularly racialised migrants) may be considered too ‘political’ and racial equality too destabilising for a court, let alone a supranational court. These factors might explain some of the de-racing at play in the calibration exercise.
Hollowing justifications
In chapter 5, Campbell identifies how courts hollow out the justification-stage by isolating, decontextualising, or misdirecting the assessment or by misunderstanding women’s equality. Racial inequality claims before the ECtHR are similarly faced with such hollowing, especially in migration control, where race discrimination is normalised by states and legitimised by courts. Following Abdulaziz, ‘[m]ost immigration policies – restricting, as they do, free entry – differentiated on the basis of people’s nationality, and indirectly their race, ethnic origin and possibly their colour’ (at [84]). This acknowledgment of how immigration policies operate is used to justify, not find, discrimination. The racial discrimination entangled within immigration policies is implicitly considered rational, even necessary (note ‘the need to stem the flow of immigrants’ at [85]). The limitation is assessed in isolation from the racial inequality in a way that forecloses the recognition of any racial inequality.
However, in addition to the justification-hollowing techniques covered by Campbell, ECHR case-law presents a distinctive technique of swallowing (which may be linked to the conjunctive nature of Article 14). Chapman v UK is a textbook example of such swallowing. An English Gypsy woman was refused planning permission on a plot of land purchased by her. The Court first assessed her claim under the right to respect for private and family life (Article 8 ECHR) and found no violation. Next, it considered whether the refusal amounted to discrimination on grounds of her status as a Gypsy. In the words of the Court: ‘Having regard to its findings above under Article 8 of the Convention that any interference with the applicant’s rights was proportionate to the legitimate aim of preservation of the environment, the Court concludes that there has been no discrimination contrary to Article 14 of the Convention.’ (at [129]). The justification reasoning for racial inequality is subsumed or swallowed under the justification reasoning for other individual rights and accordingly emptied of any content.
In sum, the ECtHR’s treatment of racial inequality reveals patterns of justificatory avoidance, dilution, de-racing, and hollowing. Given that the justification assessment is, as Moritz Baumgärtel and Sarah Ganty note, ‘central to the evaluation of Article 14 ECHR claims’, taking Article 14 and equality seriously requires reckoning with the different roles and functions that justification performs. Meghan Campbell’s remarkable book offers a clear path forward for doing so.
Vandita Khanna is a Humboldt Research Fellow at the Academy for European Human Rights Protection, University of Cologne
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