Positive Obligations in a Democracy

Rory O'Connell of Queen's University Belfast has written an article for the Northern Ireland Legal Quarterly (Vol. 61-3, 2010, pp. 263-279) on positive obligations under the right to free elections (article 3 of the first Protocol to the ECHR). The article, entitled 'Realising Political Equality: The European Court of Human Rights and Positive Obligations in a Democracy' has also been posted on SSRN. This is the abstract:

The European Convention on Human Rights (ECHR) speaks of the importance of an “effective political democracy” in its Preamble, though it is only in Article 3 of Protocol 1 (P1-3) that we find a right to free elections. This paper discusses the role of “positive obligations” under P1-3.

This paper outlines the positive obligations in P1-3 focusing on obligations where the state is required to do more than just change the law. This may mean providing resources or facilities, adopting regulatory frameworks or creating new institutions. The paper highlights specific positive obligations that need to be further developed in the jurisprudence of the European Court of Human Rights (ECtHR). Sometimes these can be developed by analogy with positive obligations recognised in other areas of ECtHR jurisprudence. However, beyond these cases, states should ensure that members of vulnerable and disadvantaged minorities are able to participate in the electoral process and should ensure that dominant political groups cannot abuse their political power to exclude other parties unfairly. This is necessary to realise equal political rights.

The second section of this paper sketches some preliminary points about the Strasbourg institutions’ approach to P1-3. After that, the third section identifies circumstances where the ECtHR should apply a more intense scrutiny in P1-3 cases. The fourth, fifth and sixth sections look at positive obligations relating to the right to vote, the right to run for election and the regulation of political parties.

Just Satisfaction Practice

The awarding of just satisfaction and the supervision of the execution of the Court's judgments in these matters is not always very clear to outside observers. A memorandum prepared by the Department for the Execution of Judgments of the European Court of Human Rights (DG-HL) of the Committee of Ministers sheds some light on this. It dates of January last year and is entitled 'Monitoring of the payment of sums awarded by way of just satisfaction: an overview of the Committee of Ministers’ present practice'. This is the Department's own introduction to the document:

In many cases, the relevant information for the payment of just satisfaction already appears in the Court's judgment.

This information, however, is not always sufficient to resolve a number of - recurrent or one-off - questions as to arrangements for the payment of just satisfaction. This led to the wish that the Secretariat draw up a document recalling the practice followed in the framework of the monitoring of the payment of just satisfaction.

This document is therefore intended to present the practice followed to date on certain points by states and the Ministers' Deputies - in the light of the solutions adopted by the Court - and to highlight the points deserving further clarification.

A helpful document, not only for the Council of Europe itself, but also for applicants and their lawyers. It helps to answer questions such as what happens if the applicant to whom satisfaction has been awarded is detained or has disappeared or is a legal entity that has been dissolved.

Case Note on Sejdic and Finci

Marko Milanovic (University of Nottingham) has written a case note on the case of Sejdic and Finci v. Bosnia and Herzegovina for the American Journal of International Law (vol. 104, 2010), which he has also published on SSRN. The case, on which I reported here, concerns discriminatory provisions in the Bosnian Constitution, which is part of the Dayton peace agreement. This is the abstract of the case note:

This case note analyzes the Sejdic and Finci v. Bosnia and Herzegovina case decided by the Grand Chamber of the European Court of Human Rights on 22 December 2009. This was the first case in which the Court applied the far-reaching general prohibition of discrimination in Protocol No. 12 to the European Convention, and did so with regard to a politically volatile situation of electoral discrimination based on ethnicity in a post-conflict society - discrimination that was in fact institutionalized in order to end a war. Likewise, as the implementation of the Court's judgment requires an amendment to the Bosnian Constitution, the case poses significant compliance challenges, which are also likely to arise in a number of other cases currently pending before the Court. All of these issues make this a case deserving of continuing attention.

Article on Interim Measures

The newest issue of our own Utrecht-based Netherlands Quarterly of Human Rights has just been published (vol. 28, nr. 3, 2010). It includes an article on interim measures, comparing the experiences of the European and Inter-American human rights systems, authored by my friends Yves Haeck (SIM -Utrecht and Ghent Univ.) and Clara Burbano Herrera (Ghent Univ.): "Letting States off the Hook? The Paradox of the Legal Consequences following State Non-Compliance with Provisional Measures in the Inter-American and European Human Rights Systems". This is the abstract:

Anyone who proves that he or she is in a situation of danger and who is a potential victim of a violation of a right set forth in the American or the European Convention on Human Rights may be protected by interim measures. Interim measures in the human rights systems may be defined as an instrument, the purpose of which is to prevent irreparable harm to persons who are in a situation of extreme gravity and urgency, which a favourable final judgment would therefore not be able to undo. They result in protection offered by the State in compliance with the legally binding order of the Inter-American or European Court on Human Rights. While this legal figure is nowadays applied more and more frequently and in most cases the American and European countries have complied with the order of their respective Court of Human Rights, the question that this contribution would like to answer is what the legal consequences of incompliance are and whether the difference as to the legal basis of the interim measures in both human rights systems has influenced the legal effect that the respective Courts have given to non-compliance with the measures. After an overview of the case-law, it the incompliance with its interim measures, but paradoxically, the effects are not directly related to the type of legal instrument in which the interim measures are contemplated. The issue is relevant because on the one hand interim measures are mostly adopted in dramatic contexts where the life and personal integrity of human beings are endangered and because a survey of the case-law shows that under the European system the cases of incompliance seem to be on the rise, and on the other hand, because it appears that under the Inter-American system there are many cases in which provisional measures have been issued which will be decided soon on the merits, and therefore during the examination of which it will be decided whether the member States have complied or not with the Inter-American Court's interim measures and what consequences incompliance entails.

Friendly Settlements at the Court

A new book on the issue of friendly settlements in Strasbourg has just been published at OUP: Helen Keller, Magdalena Forowicz, and Lorenz Engi have written 'Friendly Settlements before the European Court of Human Rights. Theory and Practice'. It goes into both the phislophical and doctrinal underpinnings of friendly settlements as well as into selected areas of case law. This is the abstract:

The friendly settlement procedure is an important tool for the reduction of the European Court of Human Rights' (ECtHR) case load. Recent practice demonstrates that this procedure is increasingly resorted to by applicants and Contracting States. This book evaluates this largely unexplored instrument from doctrinal as well as practical perspectives, making recommendations to render the negotiations before the ECtHR more efficient and professional.

The book examines questions relating to the admissibility as well as to the practical manageability of friendly settlements. In contrast to ordinary civil proceedings, the friendly settlements procedure has a mixed legal character: while settlements are an inter-partes procedure, they are also binding under international law, as the ECtHR often hands them down in the form of a judgment. In this context, the question arises as to how far the proceedings can be 'privatised' and where the limits to the monetisation of human rights violation lie. This book evaluates possible abuses and identifies the precautions that need to be taken in the framework of friendly settlements. This issue is linked to the question of whether the legal framework which governs the conclusion of a friendly settlement should be formulated in a more concrete manner, given that the position of the parties is unequal and that the role of the Court is hardly defined in this context. Furthermore, the book empirically examines whether the friendly settlement procedure is as advantageous in comparison to ordinary proceedings as others have argued. It also questions whether the friendly settlements procedure can provide the applicant with 'more money faster'.

Islam and the ECHR

Peter Danchin of the University of Maryland School of Law has posted a paper on SSRN entitled 'Islam in the Secular Nomos of the European Court of Human Rights' which analyses the Court's Article 9 jurisprudence relating to Islam. This is the abstract:

Since 2001, the European Court of Human Rights has decided a series of cases involving Islam and the claims of Muslim communities (both majorities and minorities) to freedom of religion and belief. This Article suggests that what is most interesting about these cases is how they are unsettling existing normative legal categories under the ECHR and catalyzing new forms of politics and rethinking of both the historical and theoretical premises of modern liberal political order in Europe. These controversies raise anew two critical questions for ECHR jurisprudence: the first regarding the proper scope of the right to religious freedom; and the second regarding the conceptual relationship between religion and the public sphere internal to not only European nation-states but the supranational nomos of the Strasbourg Court itself.

The Article argues that a complex historical and normative relationship between Christianity and secularism can be seen to continue to define the modern contours and shape of the public sphere and the right to religious liberty alike and that assertions of claims of right by Muslims have thus made visible both the historical contingency and cultural particularity of these norms and forms of legal ordering. An argument is advanced which views the Court’s reasoning under Article 9 as entangled with not one but two rival liberal traditions: one dialogic which defines the right to religious liberty in strongly value pluralist terms and the public sphere in terms of social peace; the second rationalist which defines the right more narrowly in terms of autonomy and rational choice and the public sphere in terms of a particular substantive theory of justice. The Article concludes by suggesting that a better understanding of how religious freedom emerged in early modern moral and political thought will show that the second pluralist strand is deeply encoded in the logic and normative structure of Article 9 and how this may open new pathways by which to re-imagine the current limits of the Court’s jurisprudence.

More ECHR Literature

The Court is restarting its public activities this week after a summer break, with a hearing yesterday and the issuing of its first post-summer judgments later today. A good moment to give the reader an overview of a range of new ECHR-related literature:

The latest issue of the Heidelberg Journal of International Law (Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, vol. 70-1, 2010) is out and it includes two articles on the ECHR (in German):

* Mathias Hong, 'Hassrede und extremistische Meinungsäußerungen in der Rechtsprechung des EGMR und nach dem Wunsiedel–Beschluss des BVerfG' (on hate speech and extreme forms of freedom of expression)
* Cornelia Janik, 'Die EMRK und internationale Organisationen – Ausdehnung und Restriktion der equivalent protection–Formel in der neuen Rechtsprechung des EGMR' (on the ECHR and international organisations)

The latest issue of the European Human Rights Law Review (issue 4 of 2010) is out, which includes an article giving an overview of the procedure for electing judges at the Court:

* Andrew Drzemczewski, 'Election of Judges at the Strasbourg Court: An Overview', (pp. 377-383)

A French version of this article will appear in the journal 'L'Europe des Libertés' (of Strasbourg University) this Fall.

Routledge has published a Liber Amicorum for the great scholar and human rights expert Kevin Boyle, entitled 'Strategic Visions for human rights: Essays in Honour of Professor Kevin Boyle' which includes:

* Françoise Hampson, 'The Future of the European Court of Human Rights'

Finally, a new book is out on the challenges facing the application of the ECHR in Russia.

* Anton Burkov, 'Convention for the Protection of Human Rights in Russian Courts' (Moscow: Wolters Kluwer 2010).

The book is in Russian, but an English book chapter with the core arguments will appear later this year as: Anton Burkov, 'The European Convention for Human Rights and Fundamental Freedoms in the Russian Legal System', in: The European Convention for Human Rights and Fundamental Freedoms in Central and Eastern Europe (Eleven International Publishing). Here are parts of the abstract:

Through analysis of hundreds of interviews and judgments on the domestic use of the Convention in Russian courts, the author explores reasons for poor application of international law in Russia.

Despite the fact that the Russian constitution recognizes the domestic status of the Convention, a status that is indeed higher than that of any federal law and which commands that the Convention be applied if there is a conflict between the Convention and a national law, jurists continue to face tremendous barriers. Their efforts to obtain the recognition and the application by national courts of the norms of the Convention as well as the case-law of the ECHR are being undermined by a number of obstacles which are explicitly demonstrated by the author, as well as good examples of the Convention application by the Russian court. This book also clearly explores the specific instruments of the Russian legal system that permit the domestic application of the Convention as well as putting forward practical solutions to those obstacles. Offered as guidelines, those solutions can benefit the work of all judicial professionals and help protect the fundamental rights and freedom of Russian citizens at the national level.

Thanks to all for keeping me (and us all) updated of these and other ECHR-related literature and developments!

Article on Russia and the ECHR

The newest issue (volume 2-2, 2010) of the online journal Göttingen Journal of International Law has been put online. It includes an article entitled 'The Russian Federation, Protocol No. 14 (and 14 bis), and the battle for the soul of the ECHR', by Bill Bowring. This is the abstract:

With a focus on the Russian Federation, this article examines the adoption by the Council of Europe of Protocol No.14 to the European Convention on
Human Rights (ECHR), and its long-delayed coming into force. The author starts with the question of the original object and purpose of the Council, and how they have now changed. This leads to an analysis of the nature of the crisis – a crisis of success – now faced by the ECHR system, and the reform process which started, on the 50th anniversary of the ECHR, in 2000. After describing Protocol No.14 itself, and the discussion which has surrounded it, the article turns to the central issue. This is not the question of procedural reform, or even admissibility criteria, but what lies behind – the “soul” of the ECHR system. Should the Strasbourg Court remain a court which renders “individual justice”, albeit only for a handful of applicants and with long delays; or should it make become a court which renders “constitutional justice”? The article focuses on the specific problems faced by Russia in its relations with the Council of Europe; and an analysis of the lengthy refusal by the Russian State Duma to ratify Protocol No. 14. The author concludes with an attempted prognosis.

Book on International Law at the European Court

To appear this month: a brand new study on how international law features in the jurisprudence of the European Court of Human Rights. The book, published at Oxford University Press, was written by Magdalena Forowicz (University of Zürich) and is entitled 'The Reception of International Law in the European Court of Human Rights'). The publisher boldly (but wrongly) claims that this is the "first book to analyse the interplay between the European human rights law system and international law for 15 years." In fact, less than a year ago, a book on almost the same topic was published; see my earlier post here. Nevertheless, it is of course a very welcome contribution to an important and ongoing debate on the place of the European human rights system within public international law. This is the abstract:

The growing number of international courts and tribunals and their burgeoning case law have fuelled concerns about the fragmentation of international law. This arises as a consequence of both the specialized regimes these courts create and the multiple ways in which they may interpret international law emanating from other sources.

This book considers this issue by examining the busiest and arguably most successful international court, the European Court of Human Rights. More specifically, it focuses on the jurisprudence of the Court and its predecessor, the European Commission of Human Rights, covering a range of special human rights regimes, treaty law, and the case law of the International Court of Justice.

The author assesses whether the Court has been able to adopt a coherent, comprehensive approach to the interpretation and evaluation of international law and thus the extent to which it has been able to contribute to the development and coherence of international law.

Article on Predicaments and Challenges of the European Court

The 2009 volume of the German Yearbook of International Law features a contribution by Michael O'Boyle, deputy registrar at the European Court, & John Darcy, entitled 'The European Court of Human Rights: Accomplishments, Predicaments and Challenges', pp. 139-180. For those interested in comparative approaches, the same volume also includes similar essays on human rights challenges in the other regions of the world. The yearbook is unfortunately not available online, but can be found in most academic libraries. The publisher is Duncker & Humblot in Berlin.

Many thanks to EM for notifying me of this!