Thursday, 22 December 2016

End of Year ECHR Readings

As the year wraps up, please find a final selection of ECHR-related readings of 2016. I wish all the readers of this blog a good 2017!

* Stijn Smet, Resolving Conflicts between Human Rights. The Judge's Dilemma (Routledge Publishers 2016):

Under the influence of the global spread of human rights, legal disputes are increasingly framed in human rights terms. Parties to a legal dispute can often invoke human rights norms in support of their competing claims. Yet, when confronted with cases in which human rights conflict, judges face a dilemma. They have to make difficult choices between superior norms that deserve equal respect. In this high-level book, the author sets out how judges the world over could resolve conflicts between human rights. He presents an innovative legal theoretical account of such conflicts, questioning the relevance of the influential proportionality test to their resolution. Instead, the author develops a novel resolution framework, specifically designed to tackle human rights conflicts. The book combines concerted normative theory with profound practical analysis, firmly rooting its theoretical arguments in human rights practice. Although the analysis draws primarily on the case law of the European Court of Human Rights, the book’s core arguments are applicable to judicial practice in general. As such, the book should be of great interest to academics, postgraduate students and legal practitioners in Europe and beyond. The book is particularly suited for use in advanced courses on legal theory, human rights law and jurisprudence.

* Michael O’Boyle, 'Emergency Government and Derogation under the ECHR', European Human Rights Law Review, Issue 4 (2016) pp. 331-341.

This Opinion takes the recent French derogation from the ECHR as the starting point for a general reflection on the notions of derogation and emergency government and the need for legal safeguards against human rights abuses that are (and always have been) associated with states of emergency. It also looks at the differing views that have been expressed by judges on the meaning of the notion in art.15 “threatening the life of the nation”, the role played by the margin of appreciation in the interpretation of this provision and the concept of proportionality, arguing that the art.15 language “strictly required by the exigencies of the situation” denotes the need for greater Strasbourg review in keeping with practice in certain judgments. Finally, it highlights the vital role of the judiciary in times of emergency as a check against excesses and ultimately as a guardian of the democratic system as a whole—a role considerably undermined by the measures against the judiciary taken by Turkey following the recent abortive coup.

* Lize Glas and Jasper Krommendijk, 'From Opinion 2/13 to Avotiņš: Recent Developments in the Relationship between the Luxembourg and Strasbourg Court', Human Rights Law Review, Vol. 17(2) 2017, forthcoming, but available on SSRN

With its recent judgment in Avotiņš v Latvia of May 2016, the ECtHR arrived at its long-awaited answer to Opinion 2/13 of the CJEU. Many commentators hinted at the possibility that the ECtHR would drop its Bosphorus presumption following Opinion 2/13 because of the critical approach of the CJEU towards the ECtHR in Opinion 2/13. The ECtHR, however, chose to uphold the Bosphorus doctrine in Avotiņš, a case dealing with the Brussels I Regulation on the mutual recognition of civil law judgments. At first sight, the response of the ECtHR in Avotiņš does not seem antagonistic and it seems that the ECtHR avoided entering into an arms race with the CJEU. Closer scrutiny of the judgment reveals, however, that this is not entirely true.

* Graham Butler, 'The Ultimate Stumbling Block? The Common Foreign and Security Policy, and Accession of the European Union to the European Convention on Human Rights', Dublin University Law Journal, Vol, 39(1) (2016), pp. 229-244.

* Nasia Hadjigeorgiou, 'Remedying Displacement in Frozen Conflicts: Lessons From the Case of Cyprus', Cambridge Yearbook of European Legal Studies, Vol. 18 (2016) pp. 152-175:

This article examines the jurisprudence of the European Court of Human Rights, in order to assess the effectiveness of the remedies provided and procedures followed by the Immovable Property Commission (IPC), a mechanism that was established by Turkey in order to remedy displaced Greek Cypriots. It recommends changes for the improvement of the IPC and argues that with their adoption, the Commission could act as a blueprint for the establishment of similar remedying bodies in other frozen conflicts as well. Such institutions are not only important in terms of states’ compliance with their human rights obligations, but can also contribute to the resolution of the underlying conflict itself.

* Kristin Henrard, 'The European Court of Human Rights, Ethnic and Religious Minorities and the Two Dimensions of the Right to Equal Treatment: Jurisprudence at Different Speeds?', Nordic Journal of Human Rights, Vol. 34, No. 3 (2016).

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