Wednesday, 5 December 2012

New Academic Articles on the Convention

The newest 'Current Contents Selection' of my home base SIM has been put online. It includes the following ECHR-related articles (I am only mentioning the ones I did not refer to before on this blog). First off, the Cambridge Law Journal (vol. 71, no. 3, 2012) contains two articles about Strasbourg:

* D. Mead, 'Kettling comes to the boil before the Strasbourg Court: is it deprivation of liberty to contain protesters en masse?', pp. 472-475.
* C. Simmonds, 'Paramountcy and the ECHR: a conflict resolved?' pp. 498-501.
Other articles are:

* K. Henrard, 'Duties of reasonable accommodation in relation to religion and the European Court of Human Rights: a closer look at the prohibition of discrimination, the freedom of religion and related duties of state neutrality', Erasmus Law Review, vol. 5, no. 1 (2012). This is the abstract:

This article aims to answer the question of whether duties of reasonable accommodation on the basis of religion can and should be identified by the European Court of Human Rights. Throughout the article, it is emphasised that duties of reasonable accommodation are ultimately about realising equal opportunities and thus substantive equality by levelling out the playing field and evening out barriers to full participation. Duties of differential treatment under the prohibition of discrimination and the prohibition of indirect discrimination are both general in application and, arguably, provide a solid basis for duties of reasonable accommodation, including those relating to religion. Consequently, it is argued that identifying these duties of reasonable accommodation would seem to be a logical development of the Court’s jurisprudence. It will be argued that the potential tension with the prohibition of discrimination (regarding those that cannot benefit from the accommodation measures) can be solved when an asymmetrical approach to the scrutiny of suspect grounds is adopted. Similarly, the apparent conflict with duties of state neutrality under the freedom of religion disappears when an inclusive vision of state neutrality is followed. When reasonable accommodation measures trigger controversies, this should be countered by awareness raising about the intrinsic connection of reasonable accommodation measures with substantive equality.

* P. Thielbörger, 'Judicial passivism at the European Court of Human Rights', Maastricht Journal of European and Comparative Law, vol. 19, no. 3 (2012) pp. 341-347.
  * C. Guthrie, 'Scottish limitations to testamentary freedom and freedom of religion under Article 9 ECHR',
Aberdeen Student Law Review, vol. 3 (2012) pp. 78-99. This is the abstract:

The writing of a Will may be regarded as an action in life carrying with it the reasonable expectation that its contents will be adhered to. Whilst, in general, anybody with the capacity to do so may leave a Will distributing the entire or part of his estate as a mortis causa trust on his death, testamentary freedom in Scotland is subject to certain limitations. Some manifestations of religious belief require specific observances on death which could be prevented by these limitations. Three such limitations to testamentary freedom, namely restrictions arising from the concept of legal rights, immoral Will conditions and the regulations surrounding the disposal of the corpse, have the capacity to affect directly the freedom to manifest religion which is protected under Art.9(1) of the ECHR. This paper will contend that whilst limits to testamentary freedom may interfere with the freedom to manifest religious belief, such restrictions are justifiable under Art.9(2) of the ECHR. It is, therefore, concluded that while interference may occur, the three limitations to testamentary freedom do not contravene Art.9 of the ECHR.

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