Friday, 8 March 2019

New ECHR Readings

Please find below a new batch of recent academic publications on the European Convention on Human Rights and its Court: 

* Floris Tan (Leiden University), 'The Dawn of Article 18 ECHR: A Safeguard Against European Rule of Law Backsliding?', Goettingen Journal of International Law, vol. 9, issue 1 (2018):

'This article examines an underexplored avenue for the protection of the rule of law in Europe: Article 18 of the European Convention on Human Rights. This provision prohibits States from restricting the rights enshrined in the European Convention for any other purpose than provided for in the Convention. In this contribution, the author argues, based on a combination of textual, systematic and purposive interpretations of Article 18, that the provision is meant to safeguard against rule of law backsliding, in particular because governmental restrictions of human rights under false pretenses present a clear danger to the principles of legality and the supremacy of law. Such limitations of rights under the guise of legitimate purposes go against the assumption of good faith underlying the Convention, which presupposes that all States share a common goal of reinforcing human rights and the rule of law. Article 18 could therefore function as an early warning that European States are at risk of becoming an illiberal democracy or even of reverting to totalitarianism and the destruction of the rule of law. The article then goes on to assess the extent to which the European Court’s case-law reflects and realizes this aim of rule of law protection, and finds that whereas the Court’s earlier case-law left very little room for an effective application of Article 18, the November 2017 Grand Chamber judgment in Merabishvili v. Georgia has made large strides in effectuating the provision’s raison d’être. As the article shows, however, even under this new interpretation, challenges remain.' 

* Veronika Fikfak (Cambridge University), ‘Changing State Behaviour: Damages before the European Court of Human Rights’, European Journal of International Law, vol. 29, issue 3 (2018) pp. 1091-1125:

'Regardless of the efforts undertaken through the many reforms of the European Convention on Human Rights system, non-compliance with the judgments of the European Court of Human Rights (ECtHR) remains a major problem for the Council of Europe. This article asks how we can change state behaviour and what role, if any, could damages play in this context. First, the article focuses on how the choice of remedy affects compliance and why aggravated or punitive damages look like an ideal option to nudge states into compliance. I explore recent arguments by scholars and judges who argue that the ECtHR should actively shift its approach (or perhaps already has) to nudge state behaviour towards compliance and prevention of future violations. Based on my empirical research, I show that the current case law presents several obstacles to the introduction of such damages. Building on the economic analysis of the law and insights from behavioural sciences, I reveal how the Court’s approach fails to comply with any of the elements needed to incentivize states to change their behaviour. I finally question to what extent aggravated or punitive damages can be efficient within a system that relies on voluntary compliance.' 

* Maria Fanou (European University Institute) and Vassilis Tzevelekos (University of Liverpool), ‘The Shared Territory of the ECHR and International Investment Law’, in: Y. Radi (eds.), Research Handbook on Human Rights and Investment (Edward Elgar: 2018) pp. 93-136:

'The chapter compares international investment law (ILL) with the ECHR system of human rights protection. First, analysis identifies key differences in the systemic features of the two regimes. Although they overlap to some extent in the protection they offer to property, they differ significantly. The ECHR system is unitary; unlike IIL, it operates on the basis of one single set of instruments. Mutatis mutandis, unlike IIL arbitration, the ECtHR is a last resort court that cannot be reached unless domestic remedies have been exhausted. IIL is available to foreign investors only; in the ECHR system the applicant’s nationality is irrelevant. The ECHR system is designed to cover a wide range of human rights -not only property/investment rights. Finally, the two systems differ significantly in terms of enforcement. The second step in the analysis focuses on property protection. To draw a parallel between the ECHR and IIL, the chapter discusses first the general framework of property protection under the ECHR and gives examples from the ECtHR practice with respect to foreign direct investment (FDI). Analogies are then drawn between the ECHR and key IIL standards. The chapter identifies similarities and differences regarding expropriation (focusing on indirect expropriation, the sole effects and police powers doctrines, and the function of proportionality), FET (focusing on equity and legitimate expectations the way these are protected by both regimes) and full protection and security, which is associated with due diligence and human rights positive effect. The third step in the analysis concerns limitations to investment/property rights. Occasionally, remedying or preventing human rights violations and the protection of general interest might make it necessary that states interfere with investment rights. Proportionality is crucial in this context as a tool allowing to establish priorities and assess the lawfulness of limitations. In comparison to IIL, the ECHR regime appears to better accommodate the idea of a fair balance between individual rights and general interest. Because the ECHR covers FDI from the perspective of human rights, it does not merely treat it as rights that need to be safeguarded, but also as a goal that can be limited when activities related to its promotion lead to the breach or endangerment of other human rights. Ultimately, even when the two regimes converge or overlap, the “tone”, i.e. the way they safeguard and promote FDI differs. This is the natural consequence of their differing orientation and teleology.'  


'This book analyses the allocation of responsibility for human rights violations that occur in the context of border control or return operations coordinated by Frontex. The analysis is conducted in three parts. The first part examines the detailed roles and powers of Frontex and the states involved during joint operations, focussing on the decision-making processes and chains of command. The second and third parts develop general rules that govern the allocation of responsibility under public international law, ECHR law, and EU non-contractual liability law in order to apply them to Frontex operations. To illustrate the practical implications of the findings, the study uses four hypothetical scenarios that are based on situations that have in the past given rise to human rights concerns.

The book concludes that whilst responsibility for most human rights violations lies with the host state of an operation, it often shares this responsibility with participating states who contribute large assets as well as Frontex. However, the book also exposes how difficult it is for individuals to find a place for bringing complaints against violations of their human rights suffered at the EU's external borders. This casts doubts on whether the current legal framework offers them an effective remedy.'

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