Wednesday, 21 October 2020
Thursday, 15 October 2020
The conference is part of the Seventh Regional Rule of Law Forum for South-East Europe and is hosted by Civil Rights Defenders and The Advice on Individual Rights in Europe (AIRE).
Below is the description of the conference by the organisers:
‘The Covid-19 pandemic is one of the greatest global crises since World War II. Governments all over the world have taken unprecedented measures to deal with the challenges posed by the pandemic and to limit the dangers posed to life and health. It is also the first time in the history of the Convention that many Member States have been affected concurrently by the same exceptional crisis situation, and by one which affects so many Convention rights.
The pandemic has engaged States’ positive obligations to protect life and health, whilst the measures such as lockdowns which were implemented to try to contain the pandemic and protect health have interfered with numerous other Convention rights. For example, the closure of courts, schools, places of worship and hospitality venues has raised issues under the right to a fair trial, education, freedom of religion and peaceful enjoyment of property, whilst restrictions on movement and gatherings interfered with the rights to freedom of movement, expression, association and free elections.
Clearly, the Covid-19 pandemic raises novel legal questions and new challenges regarding how to balance the multiple rights at stake. There is, therefore, no doubt that a range of Convention rights cases related to the pandemic will soon land on the desks of national and international judges. As the nature and impact of the pandemic continues to evolve, it is also likely that judicial responses to these questions will help to shape States’ responses to the pandemic going forward. It is therefore essential that those dealing with questions relating to the pandemic understand what the ECHR requires of Member States in such a context. Not only will this help to ensure a human rights compliant response to the Covid-19 pandemic, it will also impact on the development of longer-lasting human rights norms in the field of public health and help to condition the effectiveness of human rights law in emergency situations for the foreseeable future. An understanding of existing, relevant ECtHR case law can help provide the keys to overcome new challenges and provide a useful framework within which to address new legal questions.
The Forum will provide an opportunity to reflect on how existing ECtHR case law may be applied to the novel legal questions and factual situations which have arisen in the context of the pandemic. It will bring together experts in the field to discuss the extent of the positive obligations which Member States might be under, and when exactly such obligations might arise. The Forum will also facilitate conversation regarding the main threats to human rights which have arisen in the context of the pandemic and provide an opportunity for participants to share their insights into best practice solutions to these challenges based on their experience dealing with the pandemic so far. As always, the Forum will encourage collaboration between participants to develop solutions on how to manage the challenges which they continue to face and/or which may arise in the future.'
Wednesday, 14 October 2020
Guest Post: Negotiations on EU Accession to the ECHR Restart after Five Years: Between Unlikely and Doable
‘[ECHR] represents everything that the Council of Europe and the European Union stand for. In these difficult times, the resumption of these crucial negotiations sends a strong signal about the commitment of our two organisations, and our member states, to the fundamental values that we cherish. We very much hope that the negotiations can be brought to a speedy and successful conclusion for the benefit of Europe as a whole.’
decision to reconvene followed the request by the EC and the Committee of
Ministers of the Council of Europe to set
new terms of reference for the new negotiation
process in 2020. The first meeting of the WG was held between 29 September and
2 October 2020, where numerous technical issues were discussed. A major point
of consideration was the ‘Paper
to structure the discussion at the 6th negotiation meeting’,
which set a framework for the new negotiating process. The document was not
released to the public, yet transcripts
of the meeting reveal the main points
it raised: namely, the four categories of issues noted in the paragraph below.
The Paper, however, does not offer anything substantial in regards to solutions
that would resolve the existing controversy surrounding the reasonableness of
the accession project and the far-reaching requirements following from Opinion
2/13. It merely underlines what Opinion 2/13 had concluded, indicating aspects
for which a new negotiation and/or design would have to be engineered.
Four additional major issues were discussed in the first meeting of the WG. First, general issues of EU-specific mechanisms for the procedure before the European Court of Human Rights (ECtHR); second, the inter-party mechanism and the possibility for domestic judges to ask for an advisory opinion under Protocol 16 ECHR; third, the principle of mutual trust between EU member states in the view of Art. 53 Charter of Fundamental Rights of the EU and Art. 53 ECHR; and, fourth, the jurisdictional immunity of the area of Common Foreign and Security Policy in procedures before the ECtHR. The European Commission reiterated that it does not require a privileged status for the EU in proceedings before the ECtHR. However, it maintained that some accents would have to be enhanced in the draft agreement for it to comply with Opinion 2/13. It further ‘recalled its determination to accede to the ECHR. It recalled that accession did not require to negotiate a new Accession Agreement, but rather to make some specific amendments to the already existing agreement whilst preserving its underlying balance.’ There is no specific information on the elements that would manifest these new requirements. One can assume that baseline documents will not be provided unless there is a new final draft agreement approved by the WG.
Commenting the future of this endeavour, Mr. Giakoumopoulos, the Director General of Human Rights and Rule of Law at the Council of Europe, stated that:
A follow-up meeting of the WG is set for 24-27 November 2020, and there is no draft agenda available as of now.
One can observe that the first meeting of the WG was followed with a positive attitude towards the utilitarian necessity for a new draft agreement. Parties were generally open for a new negotiation process and maintained the need for further consensus to make the project of accession possible. However, little to no discussion that substantively engaged with the core questions of Opinion 2/13 and their plausibility in the light of a new draft agreement took place. It is difficult to estimate whether a proper new negotiation process will succeed. Chances are really slim that the far-reaching requirements of Opinion 2/13 would ever be consented by the 47+1 members of the WG. It is even more unlikely that, even if there is a consensus among negotiators, a draft agreement reflecting that momentum would ever have the support of all national legislatures in the ratification process. However, the November meeting of the WG will inform us more on the substance and will shed more light on the likelihood for success of this restarted negotiating process.
Friday, 9 October 2020
• Mikael Madsen, ‘Two Level Politics and the Backlash against International Courts: Evidence from the Politicisation of the European Court of Human Rights’, iCourts Working Paper Series 2020, no. 209:
'Are international institutions more prone to face backlash politics than domestic ones? Are international institutions easy targets for satisfying domestic political interests? Using the case of the recent criticism of the European Court of Human Rights (ECtHR), the article explores whether international institutions are more susceptible to face backlash politics than domestic ones due to the dual nature of international politics. The empirical study, focusing on the reform of the ECtHR through the 2018 Copenhagen Declaration, suggests that pre-existing commitments to international institutions might be given up rapidly when significant domestic interests collide with international institutions and their practices. The analysis, however, also shows that backlash politics against international institutions is transformed when seeking institutional reform. Entering a collective bargaining process, backlash objectives are changed by the logic of diplomatic negotiation, academic scrutiny and the interests of the other member states and civil society. This suggests that the two-level logic of ordinary international politics has a mediating effect on domestically fuelled backlash campaigns.'
Caption: The photo is of a graffiti bookshelf in the city of Utrecht, where SIM is based, made by visual artist JanIsdeMan.
Wednesday, 7 October 2020
Since 27 September 2020, the long-frozen conflict over Nagorno-Karabakh between Armenia and Azerbaijan flared up again and has taken a high death toll.
Last week, the European Court of Human Rights issued an interim measure against Azerbaijan in a case lodged by Armenia. The Court called both parties to the conflict to secure the Convention rights and refrain from any military actions. Since then, however, the conflict has only escalated. Furthermore, reports suggest of the risk of involvement of other States, including Turkey in support of Azerbaijan. Against this background, on 6 October 2020 the ECtHR has issued another interim measure in relation to Nagorno-Karabakh conflict, this time against Turkey in a case lodged by Armenia. The Court “now calls on all States directly or indirectly involved in the conflict, including Turkey, to refrain from actions that contribute to breaches of the Convention rights of civilians [sic!], and to respect their obligations under the Convention.” The interim measure suggests that Turkey could be either directly or indirectly involved in the conflict.
In the past years, we have seen an increase of requests for interim measures in inter-State and other frozen conflicts in Europe. The Court has issued numerous interim measures in relation to the conflicts in Ukraine and the Caucasus. The practice suggests that in relation to such conflicts, States have a scarce record of complying with interim measures. Although interim measures are provided only in Rules of the Court, the Strasbourg Court has held that failure to comply with them leads to a breach of the Convention.
And as a consequence of that same wide scope (here "actions that contribute to breaches of the Convention rights"), it will be also much more contentious at a later stage to assess whether the interim measure has been complied with. Potentially another context in which the Court is dragged into a variety of 'lawfare' between states, rather than being able to stick to its roles of providing individual justice and constitutional-type interpretation of the Convention.
Kushtrim Istrefi and Antoine Buyse
Tuesday, 29 September 2020
'The first applications made by youth on climate change are currently pending before the European Court of Human Rights. The Youth, Climate Change, and ECtHR conference will bring together environmental and human rights scholars, practitioners, and young people to reflect and debate on the current topics in the field of environmental human rights and youth climate litigation. The goal is to contribute to the dialogue between academic community and civil society, especially the youth of environmental activists who want to hold States responsible for their failure in protecting the environment, an omission that has been threatening human rights.
The Conference’s format is devised to facilitate reflections and provoke the debate among panelists with the contribution of the audience. The panels will be organized by themes, and the experts will address questions sent by the active youth who are seeking significant change and urgent actions needed to stop the climate crisis. The audience online will also be able to contribute to the conversation by sending questions and comments directed to the panelists.
PANEL I - Environmental Rights as Human Rights
14:00 – 14:15
Sirpa Rautio, Director of the Human Rights Centre
Jukka Viljanen, Professor of Public Law, Tampere University
Young people’s message
14:15 – 14:30
Keynote: David R. Boyd, UN Special Rapporteur on Human Rights and Environment
“Climate change & human rights and the role of youth”
14:30 – 15:30
Cinnamon Piñon Carlarne, Associate Dean for Faculty and Intellectual Life, Professor of Law, Ohio State University, Moritz College of Law
Kari Kuusiniemi, President of the Supreme Administrative Court of Finland
Bradlie Luisa Ana Martz-Sigala, Research Assistant (CCEEL), University of Eastern Finland
Nicole Onnela, Chair of UN Youth of Finland
Questions by students from Tampereen lyseon lukio high school “Eurooppalinja”
15:30 – 15:45
PANEL II - International Trends in Climate Change, Courts and Youth participation
15:45 – 16:00
Keynote: Dr. Daphina Misiedjan, Assistant Professor, International Institute of Social Studies (ISS), Erasmus University Rotterdam
“The Dutch experience (Urgenda case) and the potentials of the ECtHR in environmental cases”
16:00 – 16:50
Gerry Liston, Legal Officer at Global Legal Action Network
Heta Heiskanen, Secretary-General of the Climate Panel, Ministry of the Environment of Finland
Päivi Hirvelä, Former Judge of the ECtHR, Judge in the Finnish Supreme Court
Milka Sormunen, PhD student, University of Helsinki
Ellen Ojala, Climate activist, Climate youth delegate
Questions by students from Tampereen lyseon lukio high school “Eurooppalinja”
16:50 – 17:00
Closing of the conference: conclusions and final statements'
You can register for the conference here.
Monday, 28 September 2020
'Cet ouvrage a pour ambition de présenter la création et le fonctionnement des 3 Cours régionales des droits de l’homme qui se trouvent à Strasbourg, San José et Arusha. Incontestablement éloignées par un ensemble d’éléments d’ordre politique, juridique et sociologique, ces trois juridictions sont pourtant reliées par des éléments matériels et des questionnements communs indiscutables.
Matériellement, leurs textes de références sont arrimés à la Déclaration universelle des droits de l’homme du 10 décembre 1948. Les préambules respectifs de la Convention de sauvegarde, de la Convention américaine et de la Charte africaine insèrent, en effet, le Régionalisme dans le cadre plus général de l’Universalisme. Quant aux questionnements qui les traversent, ils sont marqués de façon irréductible par des dynamiques convergentes. Les 3 Cours doivent s’assurer, en permanence, de l’acceptation par les Etats, tant de leur existence que des lignes majeures de leur jurisprudence ; doivent inciter aux transformations de leurs systèmes respectifs afin qu’ils puissent s’adapter à différents types de contraintes ou à l’inverse freiner toute tentative d’affaiblissement de leur office ; trouver l’équilibre entre la simple « sauvegarde » des droits et libertés d’un côté et leur « développement » de l’autre, en ayant en ligne de mire les principes fondateurs de leur office et la réparation des préjudices subis par les victimes.
Comparer de façon dynamique les mécanismes de la garantie régionale des droits de l’homme, en utilisant les outils de la science juridique, mais également en mobilisant les ressources de l’histoire, la science politique et la sociologie, permet de rappeler que la Justice des droits de l’homme ne va pas de soi. En dépit de l’extraordinaire développement du droit international des droits de l’homme après le « moment 45 », la garantie régionale n’a jamais été une option politique naturelle pour les Etats. Les 3 Cours sont nées dans la douleur, ont évolué en ordre dispersé, et n’ont de cesse de remplir leur mission de protection dans des contextes politiques souvent complexes où les souveraines puissances ne se laissent jamais aisément brider.'
Thursday, 24 September 2020
Antoine Buyse and Kushtrim Istrefi
Guidelines for contributions to the ECHR Blog
The ECHR Blog is an academic blog and thus aims to publish academic contributions of both theoretical and practice-oriented importance. We welcome unsolicited submissions (guest posts) of high-quality pertaining to the ECHR system from academics (and, by exception, practitioners). We particularly welcome submissions addressing:
• The case-law of the ECtHR, particularly if they concern new developments.
• New developments related to ECHR rights, procedures, principles and concepts.
• New developments within the Council of Europe institutions as well as other international organizations that directly relate to the ECHR system.
• The case-law of the Court of Justice of the European Union when it relates directly to the application of the ECHR, or is directly relevant for ECtHR case-law.
• By exception, national judicial, legislative or political developments that have a significance for the Convention system and can be of interest to an international audience.
• Any other original contribution related to the ECHR developments.
We also welcome book symposiums related to recent publications on the ECHR.
The review process: the editors aim to reply within two working days. However, at times this may take longer. Following a review by the editors, authors may be asked to revise their submission. The initial or revised submission may be accepted or rejected for publication at the editors’ discretion. A submission may be rejected if, inter alia, i) it does not fit the scope of the blog substantively, ii) it does not meet the required quality and focus of analysis, iii) the author does not present balanced arguments, uses defamatory language, and/or is directly involved on the matter discussed in the submission (e.g. a lawyer representing a case before the ECtHR), and/or iv) an issue has already been extensively published upon on this blog or other outlets and/or does not add much in terms of substance or analysis or is no longer topical.
Length: 1200-1800 words. Longer posts may be accepted but authors may be asked to divide it in two parts.
Style: Use Times New Roman size 12, single spaced and single line between paragraphs. Headings may be used at the author’s discretion.
Language: Submissions must be written in British English. They must be of good quality in terms of grammar and spelling.
Hyperlinks instead of footnotes: Use hyperlinks instead of footnotes when referring to any sources and other materials.
Image for the blog post: You are free to recommend an open-source image to be used for the guest blog.
Author’s biography: Please indicate your title, name, surname and institutional affiliation (and insert a hyperlink to your institutional profile page, where applicable).
Submissions must contain the subject line ‘ECHR Blog: Submission’ and must be sent to: a.c.buyse at uu.nl and/or k.istrefi at uu.nl .
Wednesday, 23 September 2020
On 5 October 2020, the European Court of Human Rights is hosting on its premises a conference on Human Rights and Environmental Protection. The conference will also be streamed online. The registration is open until 25 September. The full programme can be accessed here. Below is the description of the conference:
'How to address human rights class-actions stemming from large-scale environmental pollution? Where to draw the line between a policy decision within the State’s margin of appreciation and a State’s failure to strike the right balance between conflicting interests? Whether to allow legal standing to applicants who vindicate collective and intergenerational rights? Ought the Court rely on the precautionary principle and adopt a new causation test in applications concerning global warming? Or should it rather refrain from taking up the role of Europe’s climate change tribunal? In the event violations are found, what measures of redress and prevention should be imposed on Member States? How to ensure better State compliance?
Meaningful answers to these questions call for a general and conceptual reflection on the role of international human rights tribunals in reviewing Member States’ efforts to comply with their obligations under the environmental law to mitigate and adapt to the effects of the climate crisis and to stop nature’s degradation.
The conference … aims at facilitating a debate between renowned practitioners and academic experts in the field of international environmental law and human rights.'
Monday, 21 September 2020
Wolfgang Benedek and Matthias C. Kettemann have just published the second edition of the book Freedom of Expression and the Internet (Council of Europe). The second edition comes at a time when most of us express, receive, engage with, and create ideas and opinions in and through internet platforms. The book is available in print and pdf. Here is the publisher’s summary of the book: