The Experimentalist Turn in the European Convention of Human Rights: The Case of Roma School Segregation

Abstract Since the 1990s, the European Court of Human Rights (ECtHR) has increasingly reviewed state violations of a structural nature that emanate from the functioning of entire areas of state administration and policy. This article explores how the judicial and supervisory bodies under the European Convention on Human Rights (ECHR) tackle violations stemming from deficiencies in administrative structures or from deep-seated discriminatory attitudes and the implications for the functioning of this regional human rights regime. It focuses on the implementation of ECtHR judgments that have condemned Roma school segregation as a form of ethnic discrimination. The article argues that repeat and strategic litigation, shifting methods of ECHR supervision and, above all, the growing engagement of civil society actors both reflect and reinforce a fundamental transformation of the ECHR into a system of human rights experimentalism. In such a system, the ECtHR judgments are foremost a source of ‘destabilization rights’. Their implementation involves recurrent interactions of state authorities with ECHR bodies and critically depends on the active participation of non-governmental actors in monitoring state action and in advocacy and follow-on litigation.