Table of contents

Dimitry Kochenov, Timofey Agarin

Expecting Too Much: European Union’s Minority Protection Hide-and-Seek

EU’s deference to the Member State approaches in minority protection can intensify the oppression of vulnerable groups, and its insistence on non-discrimination on the basis of nationality in the minority regions with special rights in place can also produce injustice. Its inability to protect EU-wide minorities, like the Roma, is equally problematic. Although a ‘value’, minority protection functions incoherently, if at all. It is time to approach the EU as a highly specific minority protection arena not to be confused with its component parts – the Member States. The reform of the Member State-centred thinking should start at the level of approaching the core issues. It should include the assessment of such questions as what is a minority in the EU’s context of a missing majority, what is the appropriate depth of EU’s intervention in the area of minority protection, ie how much room for manœuvre should reasonably be left with the Member States without disrupting the effectiveness of EU’s regulation, as well as the approach to defining what a success in minority protection should be, in the EU context. The latter should be done, in particular, with due regard to the division of competences between the EU and the Member States in this and other relevant fields. This paper briefly explores a series of diverse case studies – from migrant EU citizens, Baltic Russians, and sexual minorities to, most importantly, Roma rights – to make the first attempt to test the proposed synergetic approach.


Wojciech Sadurski, Aleksandra Gliszczyńska-Grabias

A Recent Decision of the US Supreme Court on Legal Discrimination in the Access to Voting Rights: Five Readings of Shelby County

It is a commonplace that the abolition of all formal forms of racial discrimination in the United States has not led to the eradication of various vestiges of discrimination, usually indirect, in the law. An important sphere of traditional discrimination concerns voting rights – arguably the key aspect of civic self-determination in a democracy. The Voting Rights Act (VRA) of 1965 was aimed at making it illegal to enact any indirect measures of discrimination against African-Americans, in particular through various tests, such as literacy or property tests, which in effect adversely impact on racial minorities, traditionally disadvantaged in access to the goods and benefits which figured as criteria in such tests. Nevertheless it was not the end of the problem as local authorities at the state and sub-state level, especially in the Southern states, have been quite ingenious in designing various patterns which, while facially race neutral, led to the exclusion of black Americans from equal access to voting. Hence, the Act established some special procedures for vetting and scrutinizing, by federal authorities, any modifications of election rules in states and sub-state entities viewed as particularly prone to enacting such designs, for discriminatory reasons or with discriminatory effects. But things have changed – or are said to have changed – over the half a century which has passed since the enactment of the VRA, and an increasing number of political actors and legal practitioners and scholars have come to a view that those extraordinary designs (which will be described, in some detail, below) have long passed their ‘use by’ date. The law cannot be static, it has been said, and must respond to changed social and political realities, rather than remain set in stone. This is, in a nutshell, the basis for bringing a challenge to some sections of the VRA by a county in Alabama which felt victimized by special requirements of having to have their electoral arrangements approved by federal authorities, in contrast to the majority of US territorial entities which are free of such a burden. Shelby County v Holder, a decision of the United States Supreme Court of 25 June 2013, resolved this issue to the satisfaction of Shelby County. But a very strong dissent and the fact that, like in so many of the Court’s most controversial decisions, the Court was sharply divided 5:4 indicates that the problem at the root of the litigation is far from closed.In this article we will begin by summarizing the facts and describing the judgment of the Court, as delivered by Chief Justice Roberts (Part 1), then we will discuss the lengthy and weighty dissenting opinion by Justice Ginsburg (Part 2), after which we will provide an overview of the main and most representative responses by legal scholars to the Shelby County decision (Part 3). In the concluding remarks we will offer some suggestions about the more general, rather than purely US-related, significance of the Shelby County decision.

Peter Reading

Advancing the Right to Equality for All in Hong Kong

Hong Kong provides a unique perspective on protections from discrimination in Asia. On the one hand it has well developed human rights legislation in the form of a Bill of Rights and four pieces of anti-discrimination legislation in relation to sex, disability, race and family status. On the other hand the current anti-discrimination legislation is increasingly outdated and there is no protection from discrimination in relation to key areas such as LGBTI people, age and religion. This article examines the work being done by the Equal Opportunities Commission to modernise the existing legislation in a number of areas with its Discrimination Law Review and research projects. Leadership is required by the Hong Kong government to take the EOC recommendations forward in order to better protect everyone from discrimination.

Chintan Chandrachud

Proportionality, Judicial Reasoning and the Indian Supreme Court

Through the prism of the Indian Supreme Court’s judgment in Koushal v Naz Foundation, this article considers whether it is reasonable to apply the ‘reasonableness’ standard of review in an age of proportionality review. It makes two broad claims. First, the Indian Supreme Court does not currently apply proportionality review, but only takes proportionality-type considerations into account while applying reasonableness review. Second, unlike reasonableness review, proportionality review mitigates the possibility of errors that represent a failure of the duty to give reasons for judgment.

Justyna Maliszewska–Nienartowicz

Multiple Discrimination and the European Union – what Lessons Can Be Learnt from Canada and the US?

Discrimination is a social phenomenon and as such has been evolving, with new forms emerging and gaining importance. An interesting example in this respect is multiple discrimination, based on more than one ground. This contribution presents the definition and types of multiple discrimination as well as the ways of dealing with it in practice. The author first presents those jurisdictions which try to apply an intersectional approach to this form of discrimination, that is Canadian and US cases. Then the regulations of the EU as well as the case law of the Court of Justice are described. The conclusion contains a comparison between the EU approach on the one hand and those two national jurisdictions on the other. The author also tries to formulate some suggestions as to what the EU could do in future in order to strengthen protection against multiple discrimination.

Juan Carlos Benito Sánchez

Gender Quotas in Corporate Governance: A Comparative Perspective

Economic decision-making in the European Union suffers at the highest corporate echelons from a lack of diversity, especially in terms of gender representativeness. This article seeks to contribute to the corporate gender quota debate, reinvigorated by the European Commission’s recent proposal aiming to introduce quotas in boardrooms, by taking some national experiences as a starting point. It will reveal the existence of a plethora of perspectives and introduce a reference to industrial relations, borrowing from corporate governance theory. The article focuses on three selected countries, representing different models of addressing corporate gender imbalance: the United Kingdom, Spain and France.

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