Friday, 9 October 2020

New ECHR Readings

Please find below a new selection of recent reading on the European Convention on Human Rights and its Court:

* Jonathan Collinson, 'Making the best interests of the child a substantive human right at the centre of national level expulsion decisions', Netherlands Quarterly of Human Rights, vol. 38, no. 3 (2020):

'The best interests of the child has become an central facet of the jurisprudence of the European Court of Human Rights (ECtHR) in expulsion cases. This article argues that the indirect application of the best interests of the child as an interpretive benchmark for Article 8 ECHR is not the end point of State’s responsibilities under Article 3 UN Convention on the Rights of the Child (UNCRC). This article argues that the ECtHR’s case law presents significant limitations in the subject matter scope of the best interests of the child, and limitations to the way in which it incorporates them into the Article 8 ECHR balancing exercise. This article acts as a thought experiment by modelling an alternative mode of decision-making. It asks what the best interests of the child might look like as the substantive human right at the centre of decisions about the expulsion of foreign nationals.'

* Marcelle Reneman, 'Forensic medical reports in asylum cases: The view of the European Court of Human Rights and the Committee against Torture', Netherlands Quarterly of Human Rights, vol. 38, no. 3 (2020):

'National authorities are often reluctant to arrange for a forensic medical examination or to grant important weight to forensic medical reports in asylum cases. They do not (fully) accept that a forensic medical report may change their initial assessment of the credibility of the applicant’s asylum account. They may argue that a physician cannot establish the context (date, location, perpetrator) in which the alleged ill-treatment has taken place or the cause of a specific scar or medical problem of the applicant. Moreover, they may contend that the physician concerned did not have the expertise to write a forensic medical report. 

This article examines how the European Court of Human Rights (ECtHR) and the Committee against Torture (CAT) have included forensic medical reports in their assessment of asylum cases and how they have dealt with the ‘context’, ‘causality’ and ‘expertise’ argument. It shows that these bodies do not accept that national authorities refrain from arranging a forensic medical examination or attach no or limited weight to a forensic medical report submitted by the applicant, just because the applicant has made inconsistent, incoherent or vague statements. They also do not accept general references to the ‘context’, ‘causality’ and ‘expertise’ argument. However, they have accepted these arguments in some individual cases, often without clear reasoning. The article concludes that the ECtHR and CAT could provide more guidance to national authorities concerning the role of forensic medical reports in asylum cases by explicitly weighing the seriousness of the credibility issues against the forensic medical report and by paying attention to the requirements for forensic medical reports laid down in the Istanbul Protocol.'

• 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.

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