Wednesday, 11 March 2020

New ECHR Readings

With traveling, conferences and even work in Europe and globally increasingly coming to a halt due to the current health crisis (my thoughts are with those affected), sometimes the best one can do is just to sit back and read. Please find below a new selection of ECHR-related academic publications of the last few month:

* Rosana Garciandia, ‘State responsibility and positive obligations in the European Court of Human Rights: The contribution of the ICJ in advancing towards more judicial integration’, Leiden Journal of International Law, Vol. 33, No. 1, (2020).

'The European Court of Human Rights (ECtHR) follows its own rules regarding the responsibility of states, although the international law of state responsibility enshrined in the International Law Commission (ILC) Articles on State Responsibility for Internationally Wrongful Acts (ARSIWA) remains, as general international law, relevant to its decisions. However, case law of the ECtHR shows that the Court is departing from certain ARSIWA principles as it adopts a broad interpretation of rights contained in the European Convention on Human Rights (ECHR) giving rise to positive obligations.

Exploring those trends in the state responsibility regime of the ECHR, this article argues that, by clarifying certain ARSIWA provisions, the International Court of Justice (ICJ) can play an important role by contributing to a higher degree of judicial integration on the law of state responsibility. It is desirable that the ICJ takes any upcoming opportunity to provide greater clarity on the challenges and nuances of the applicability of the law of state responsibility, in particular as it relates to positive obligations. That would contribute to a more systematic use of those rules by regional courts such as the ECtHR, and ultimately to guaranteeing a greater protection of human rights.'

* Eirik Bjorge, ‘Rudolf Bernhardt Lecture 2018: The Contribution of the European Court of Human Rights to General International Law’, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, Vol. 79, No. 4 (2019).

* Galina A. Nelaeva, Elena A. Khabarova & Natalia V. Sidorova, ‘Russia’s Relations with the European Court of Human Rights in the Aftermath of the Markin Decision: Debating the “Backlash”’, Human Rights Review, Vol. 21, No. 1 (2020):

'Russia’s relations with the European Court of Human Rights (ECtHR) since the time of Russia’s accession to the Council of Europe (CoE) have received a lot of attention on the part of academic scholars, practitioners, and media. Research on the ECtHR became especially important in the context of the twentieth anniversary of Russia’s acceptance of ECtHR jurisdiction that coincided with the unprecedented worsening of relations between Russia and the European countries due to the 2014 Crimea annexation. With voices that consistently advocate Russia’s exit from the CoE (and, consequently, withdrawal from the ECtHR jurisdiction), we believe it necessary to examine Russia-ECtHR relations as they are (re)presented in the academic narrative. Drawing mostly on Russian-language sources, we want to highlight the variety of overarching themes and arguments relating to the crisis caused by the 2015 Constitutional Court Decision. We would like to examine various dimensions of this “crisis,” in order to be able to conclude whether Russia’s reaction to the Markin case and cases of non-compliance that followed was indeed part of a broader strategy of “backlash against international courts” we are currently witnessing worldwide. In the conditions when Russia’s exit from the Council of Europe is as likely as ever, the possibility of the “snowball effect” on the part of other member states threatens undermine the very raison d’être of the European human rights protection system.'

* James Gallen, ‘The European Court of Human Rights, Transitional Justice and Historical Abuse in Consolidated Democracies’, Human Rights Law Review, Vol. 19, No. 4 (2019):

'In recent years, both transitional justice and the role of the European Court of Human Rights in dealing with historical abuses have evolved. Transitional justice has begun to address widespread or systemic human rights abuses outside of the contexts of armed conflict and authoritarian regimes. In three key recent judgments, El-Masri v Macedonia, Janowiec v Russia and O’Keeffe v Ireland, the Court has clarified and expanded its approach to addressing historical human rights violations relevant to transitional justice in significant, if inconsistent, ways. To date, there is no exploration of the relationship between transitional justice, historical abuse outside the contexts of armed conflict or authoritarian rule and the European Convention of Human Rights. This article seeks to address that gap by considering the potential opportunities and obstacles for the use of the Convention to address historical abuse in consolidated democracies as a part of transitional justice.'

* Sébastien Van Drooghenbroeck and Cecilia Rizcallah, 'ECHR and the Essence of Fundamental Rights: Searching for Sugar in Hot Milk?', German Law Journal, vol. 20, no. 6 (2019) pp. 904-923: 

'The concept of the “essence”—as well as the related concepts of “substance” or “core”—of fundamental rights is absent from the text of the European Convention on Human Rights (ECHR), but regularly appears in the case law of the European Court of Human Rights (ECtHR) since the Belgian Linguistic case of 1968. Yet, fifty years after its explicit emergence in the Convention’s legal order, it must be observed that a clear understanding of this concept and of its practical utility is still lacking. Indeed, the idea of the essence of fundamental rights has never been clearly defined in its case law, which remains essentially pragmatic and unprincipled in this field. This Article will therefore attempt to remedy this shortcoming by sketching out the different functions assigned to the concepts of the essence, substance, and core of rights in the ECtHR’s case law. It is postulated that the concepts of the essence, substance, and core of fundamental rights are invoked for three different types of purposes. First, the concepts of the essence, substance, and core are—apparently at least—used by the ECtHR to fix the “limit on the limits,” for example, the inalienable part of fundamental rights safeguarded from any possible restriction. Second, this concept has been a vehicle for expanding the Convention’s sphere of protection for the purposes of guaranteeing its effectiveness. Third, the concepts of the essence, substance, and core of fundamental rights also constitute a “reviewing tool” used by the Court to determine the intensity of the States’ obligations on the basis of a prioritization among a series of values at stake. Although these three different functions can be identified on paper, the practical usefulness, workability, and desirability of the concepts of the essence, substance, and core will be questioned.' 

* Alice Margaria, 'Parenthood and Cross-Border Surrogacy: What Is ‘New’? The ECtHR’s First Advisory Opinion', Medical Law Review (2020).

* Lize Glas, 'The Execution Process of Pilot Judgments before the Committee of Ministers', International Journal on Human Rights & International Legal Discourse, Vol. 13, No. 2 (2019)  (vol. 13, no. 2, 2019) pp. 73-98. 

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