New Issue HRLR

The newest issue of the Human Rights Law Review (vol. 13, issue 3, September 2013) has been published. Its contents include the following ECHR-related articles (one of which I have mentioned before):

* Stijn Smet, 'Conflicts between Absolute Rights: A Reply to Steven Greer'

Can absolute rights conflict? Is it permissible to torture a person to save others from torture? And what can judges learn from trolleys? In this article, presented as a reply to an article by Steven Greer, I investigate the above questions in the context of the case law of the European Court of Human Rights. Drawing on Gäfgen v Germany, I construct a hypothetical case of conflicting absolute rights, which cannot be resolved by the existing strands of legal reasoning in the case law of the Court. Instead, I argue, recourse must be had to moral reasoning. In discussing one of moral philosophy’s deepest conundrums—the Trolley Problem—I rely on the distinction between negative and positive obligations and between direct and indirect agency to unravel the dilemma. Translating the moral argument into legal reasoning, I conclude that in cases of conflicts between absolute rights, negative obligations principally trump positive obligations. 

* Virginia Mantouvalou, 'Labour Rights in the European Convention on Human Rights: An Intellectual Justification for an Integrated Approach to Interpretation' 

Labour rights have been neglected in human rights law. Classified usually as social rights, they have been excluded from key human rights conventions. Recently, the European Court of Human Rights has developed a technique, known as an ‘integrated approach to interpretation’, because it integrates social and labour rights in the European Convention on Human Rights. The first part of this article presents case law and debates on the adoption of this technique, and also discusses the example of Canada, where similar developments are taking place. It finds controversy in literature, and uncertainty in judicial decision-making. The second part, therefore, develops a normative justification for the integrated approach in interpreting labour rights. This is based on freedom, a key value underlying civil and political rights. Negative accounts of freedom are inadequate, though, for reasons that the article explains. Instead, it analyses positive freedom in light of the theory of capabilities, which leads to the collapse of sharp divisions between groups of rights. A positive account of freedom as capability requires the protection of labour rights under the European Convention on Human Rights, and leads to the development of important principles on human rights at work.

 * Megan Pearson, 'Article 9 at a Crossroads: Interference Before and After Eweida' 

Freedom of conscience and religion is probably unique in its potential to challenge almost every area of law. Since society contains a multitude of religious and moral beliefs, many religious people will constantly be faced with practices with which they disagree and will in a myriad of ways be constrained from living an ideally religious life. Not all of this can constitute an interference with the right under Article 9 of the European Convention on Human Rights (ECHR) to manifest belief ‘in teaching, practice and observance’. However, the European Court of Human Rights’ (‘the Court’) approach has historically been unnecessarily restrictive in considering whether an interference under Article 9(1) exists, thus shutting out cases at an early stage of reasoning and before justification is considered under Article 9(2). This approach has been narrowed even further by the British courts.

New ECHR Academic Articles

Having returned from an inspiring conference on the effects and implementation of Strasbourg judgments at the University of Göttingen in Germany, here follows a new round of recent ECHR publications in academic journals. The first one is from the latest edition of our own Netherlands Quarterly of Human Rights:

* L. Van Den Eynde, 'An Empirical Look at the Amicus Curiae Practice of Human Rights NGOs before the European Court of Human Rights', NQHR, vol. 31, no. 3 (2013).

Secondly, then newest issue of the Cyprus Human Rights Law Review (vol. 2, issue 1, 2013), includes a number of contributions, both case notes and articles, related to the ECHR:

* Dean Spielmann, 'Article 6 ECHR in Criminal Proceedings: Recent Developments'.

* Daniel Rietiker, 'The European Court of Human Rights from a Comparative Law Viewpoint: A Logical Example of a ‘Mixed Jurisdiction’ Court'.

* Nasia Hadjigeorgiou,Kazali and Others v. Cyprus (no. 49247/08),6 March 2012.

* Noora Arajärvi, De Souza Ribeiro v. France (no. 22689/07) – Grand Chamber Judgement of 13 December 2012.

Thirdly, the most recent issue of Global Constitutionalism includes:

* Daniel Augenstein, 'Normative fault-lines of trans-national human rights jurisprudence: National pride and religious prejudice in the European legal space'.

Article on EU-ECHR Integration

Professor Piet Eeckhout of University College London has published an interesting article on what the European Union's accession to the ECHR will mean for the EU. Specifically it reconsiders legal pluralism theories in this respects and argues for an integration of laws paradigm. The article, entitled 'Human Rights and the Autonomy of EU Law: Pluralism or Integration?'has been published in the journal Current Legal Problems, vol. 66 (2013) pp. 169-202. This is the abstract: 

The accession of the European Union to the European Convention on Human Rights raises questions about the autonomy of EU law, and about the future relationship between the EU Court of Justice and the European Court of Human Rights. The concept of autonomy appears to confirm prevailing theories about the relationships between legal systems in Europe, i.e. legal and constitutional pluralism. This study challenges those theories, and proposes an alternative paradigm: the integration of laws. Its central argument is that the EU system of human rights protection is increasingly characterized by its integration with the national constitutional laws of the Member States and with the ECHR. It argues that in integrated legal systems, conflicts between supreme adjudicators can be resolved from within the law. Each of the supreme/constitutional courts needs to recognize the limits of its jurisdiction, but is also sharing jurisdiction with the others. This principle of limited and shared jurisdiction is a tool for resolving conflicts, leading away from a conception of a deep conflict of supreme judicial authority. Integrated legal systems are governed by a law of integration, which is there for all to see. The article touches upon some of the elements of that law of integration. It goes on to investigate the scope for EU law autonomy—which is in essence concerned with safeguarding the jurisdiction of the Court of Justice—in connection with accession to the ECHR. It argues that the principle of limited and shared jurisdiction should govern the relationship between the two European courts, and that it is capable of ensuring that the European Court of Human Rights does not decide matters of EU competence, or EU law generally. But the principle also means that the Court of Justice will be bound by judgments of the European Court of Human Rights.

New ECHR Readings

The newest edition of SIM Current Contents with articles on human rights (August 2013) is available now. It includes a large number of ECHR-related publications, some very recent, some a bit older. In as far as I have not notified them on this blog yet, I am listing them here for your overview:

Shawn Alexander, Leah Graf and Eric Janus, ‘M. v. Germany: the European Court of Human Rights takes a critical look at preventive detention’, Arizona journal of international and comparative law, vol. 29, no. 3 (2012) pp. 605-622. 

Frederick Cowel, ‘Sovereignty and the question of derogation: an analysis of article 15 of the ECHR and the absence of a derogation clause in the ACHPR’, Birkbeck law review, vol. 1, no. 1 (2013) pp. 135-162. 

Anatole Boute, ‘The protection of property rights under the European Convention on Human Rights and the promotion of low-carbon investments’, Climate law, vol. 1 (2010) pp. 93-132. 

Jonas Gulde, ‘An assessment of the European Court of Human Rights’ balancing of the rights to privacy and freedom of expression – is it satisfactory?’, Edinburgh student law review, vol. 2, no. 1 (2013) pp. 29-41.

Judith Smyth, ‘Explaining equality: the concept of dignity in article 14 of the European Convention on Human Rights’, Edinburgh student law review, vol. 2, no. 1 (2013) pp. 67-73. 

Ross K. Holberg, ‘Italy’s policy of pushing back African migrants on the high seas rejected by the European Court of Human Rights in the case of Hirsi Jamaa & Others v. Italy’, Georgetown immigration law journal, vol. 26, no. 1 (2011/12) pp. 467-474. 

Helene Lambert, ‘The next frontier: expanding protection in Europe for victims of armed conflict and indiscriminate violence’, International journal of refugee law, vol. 25, no. 2 (2013), pp. 207-234. 

Maarten den Heijer, ‘Reflections on refoulement and collective expulsion in the Hirsi case’, International journal of refugee law, vol. 25, no. 2 (2013), pp. 265-290. 

Nicholas Blake, ‘Luxembourg, Strasbourg and the national court: the emergence of a country guidance system for refugee and human rights protection’, International journal of refugee law, vol. 25, no. 2 (2013), pp. 349-372. 

Christina Eckes and Stephan Hollenberg, ‘Reconciling different legal spheres in theory and practice: pluralism and constitutionalism in the cases of Al-Jedda, Ahmed and Nada’, Maastricht journal of European and comparative law, vol. 20, no. 2 (2013) pp. 220-242.

Francesca Ippolito, ‘The contribution of the European Court to the common European asylum system and its ongoing recast process’, Maastricht journal of European andcomparative law, vol. 20, no. 2 (2013) pp. 261-281.

Liz Campbell, ‘Criminal labels, the European Convention on Human Rights and the presumption of innocence’, Modern law review, vol. 76, no. 4 (2013) pp. 681-707.

Alexandru Boroi, ‘Examination of the provisions governing the interceptions of conversations and communications according to the European Court of Human Rights jurisprudence’, Acta Universitatis Danubius: juridica, vol. 9, no. 1 (2013) pp. 58-70.

Francesca Ippolito, ‘Detention of irregular migrants: dialogue and divergence between the Inter-American and European human rights courts’, Revue Hellenique de droit international, vol. 65, no. 2 (2012) pp. 583-596.

New Book on EU Accession to ECHR

The conference proceedings of the 8th congress of the Societas Iuris Publici Europaei (SIPE), held in Lisbon in 2011, have now been published in the book "The Accession of the European Union to the ECHR". The book, with contributions in English, German and French, was edited by Julia Iliopoulos-Strangas, Vasco Pereira da Silva, and Michael Potacs and published with Nomos Verlag. This is the abstract:

As is well known, the issue of the EU Accession to the European Convention on Human Rights is not a new one. It has been the subject of debate many times among scholars and politicians. While the Commission endorsed the accession in many instances, the ECJ argued in its opinion of 28 March 1996 that accession could be brought only by way of Treaty amendment. The next steps of the accession issue are well known: initially the EU accession to the ECHR was optional according to the Draft Treaty establishing a Constitution for Europe. Then, it became a legal obligation under the Treaty of Lisbon – as it had also been under the failed Constitutional Treaty. The multi-layered and complicated issues of the EU accession to the ECHR and its importance for the human rights protection in Europe were discussed intensively by experts from both a theoretical and practical background for two days in Lisbon.

The present volume puts the revised editions of the presentations together with the contributions presented in the „Workshop of Junior Scholars“, a forum, in which qualified young academics present and discuss their own papers within the theme of the Congress. The contributions are published in the respective language used for each presentation, which may be one of the three „official“ languages of the SIPE, namely English, French and German.

Conference on the Future Role of the European Court of Human Rights

The iCourts and Freedom Rights Project at the University of Copenhagen is organizing and hosting a conference entitled 'The Future Role of the European Court of Human Rights' on 15 November 2013. Invited speakers include Marc Bossuyt, Eva Brems, Jonas Christoffersen, Børge Dahl, Francoise Hampson, Laurence Helfer, Renate Jaeger, Pauliine Koskelo, Mikael Rask Madsen, and Paul Mahoney. This is the conference abstract:

Recent years have seen a growing number of discussions about the role of the European Court of Human Rights (ECtHR). Some critics have accused the ECtHR of engaging in judicial activism, using its own notion of evolutionary interpretation to gradually expand the scope of the Convention. Others have argued that by doing so the ECtHR only fulfils its task of providing an up-to-date human rights protection in an increasingly integrated Europe. These debates are in part fuelled by normative differences in the perceived role of the ECtHR in the protection of human rights in Europe. Whether the ECtHR should play a limited constitutional role or not is therefore hardly only a legal matter. It is also a political one, which will have significant implications for European citizens and national democracy, as well as for the very idea of European integration by law.

This conference addresses the question of what the role of the ECtHR should – and could – be in the contemporary and future protection of human rights in Europe.  It brings together a distinct group distinguished European judges and renowned scholars from the field of human rights to debate these questions and suggest ways forward for the ECtHR.

 Registration can be done here.

European Convention 60 years in Force Today

Today marks the 60th anniversary of the entry into force of the European Convention on Human Rights on 3 September 1953. This was within three years of the formal signature on 4 November 1950 in Rome - the date usually referred to mark Convention milestones. In September 1953, Luxembourg, the home of the Court's current president, Dean Spielmann, ratified the Convention as the tenth state, which triggered the entry into force. It would take many more years before the majority and eventually all state parties would recognize the right of individual application and the jurisdiction of the Court. The start was thus relatively slow, but the Convention's and Court's effectiveness quickly gained pace from the 1970s onwards, growing into what it is now: an almost continent-wide instrument of human rights protection. 

As president Spielmann remarked in the Court's press release on the anniversary:

“Those who deposited the instrument of ratification believed that the Convention would form the bedrock of democratic Europe, an enterprise for peace and freedom. They considered it a great honour for Luxembourg to make possible the entry into force of what they described as ‘the finest European undertaking to date’. Sixty years on, we strive every day to continue on the course they charted for us.”

In a slightly ironic twist of history, the Arab League decided this very week to set up an Arab Court of Human Rights in Bahrein, a state that two years ago violently crushed protests. The Arab Court idea is said to have been inspired by the Court in Strasbourg, but the new idea has immediately been as a PR stunt by human rights institutes in the region itself, who do not believe that this will be a serious effort at human rights protection. Of course, that remains to be seen and the European Court also took years to fully function and become the protector that it is today. In any event,one may hope that the new Arab Court will not be a fig leaf but will be developed as something serious, maybe with practical help from its European peer.

Winter School on the ECHR and Non-Discrimination in Italy

The University of Bologna is organising a so-called Winter School on the topic "The European Convention on Human Rights (ECHR): The Principle of Non-Discrimination" from 13 to 17 January 2014. It will be held at the University's School of Political Science in Forlì. Speakers include the Court's former President J. P. Costa, judge G. Raimondi, and professors E. Dubout (Paris) and E. Brems (Ghent). It is co-organised with the Institut des droits de l'homme (Strasbourg) and the High School of Economics - Moscow.Applying is possible until 18 November, 2013.

Call for Papers on ECHR and Economic Crisis

The Cyprus Human Rights Law Review has issued a call for papers on the theme Recourse to the European Human Rights Law framework in response to the economic crisis which will result in a special issue of the journal. The deadline is 30 November 2013. Here is the full call:

The economic crisis has tested much more than the financial balances of banks, governments and individuals either in their capacity as savers, share-holders, pensioners, employers or employees. It brought about a series of social and political changes posing a real test for human rights, solidarity and democracy. It has exposed the most vulnerable to additional hardship and has given ample opportunity for various forms of extremism to flourish often resulting in the victimization of scapegoats. It undermines not only the guarantees of economic, social and cultural rights, but also those of civil and political rights. As history has taught us, noted Francoise Tulkens in her speech marking the opening of the current judicial year for the European Court of Human Rights, these trends pose a real threat to the twin pillars on which the Convention is based: democracy and the rule of law.

The impact of the crisis on obligations arising from the European Convention of Human Rights (‘ECHR’) and the European Social Charter is multi-faceted and extends to much more than the effects of the austerity measures experienced in a number of Council of Europe (‘CoE’) Member States such as unprecedented cuts on salaries and pensions and the decreasing availability of social benefits. Member States -particularly those most struck by the crisis like Greece, Cyprus, and Italy- face serious challenges in complying with the ECHR and European Social Charter, for instance in ensuring that no one depending on a social assistance scheme is left in conditions of extreme poverty; providing where required adequate housing and ensuring that any evictions,including of home owners defaulting on their mortgages, remain lawful; respecting the rights of migrants and asylum-seekers in an increasingly hostile environment as a result of the rise of political extremism; ensuring that any dismissals remain fair and that all necessary procedural safeguards remain effective; guaranteeing an effective right of access to justice in the face of new challenges varying from cuts on legal aid budgets and extending to jurisdictional issues arising in claims against the implementation of agreements with the “Troika”. The crisis has also intensified tensions arising from decision-making in what is nowadays often perceived as the Ivory Tower of Brussels and amplified a certain lack of understanding experienced by northern Europeans towards southern Europeans and vice versa. In this climate, it seems that support for European integration can no longer be taken for granted. In this context, the Editorial board of the Cyprus Human Right Law Review decided to resort to the framework of European Human Rights Law for assistance and devote the Review’s forthcoming issue to the economic crisis.

The present Call for Papers seeks to
(a) Solicit expert opinions on the impact of the economic crisis on the human rights obligations of CoE Member States, particularly addressing the issues highlighted above;
(b) Explore specific applications of the European human rights law framework in litigation arising as a result of the economic crisis;
(c) Explore means of managing the increase of political extremism challenging respect to human rights.

Interested authors are invited to submit an abstract of their proposed paper by 11 October 2013 to info@ehrli.org. The abstracts should be no more than three pages long and be in English. Earlier submissions are welcome. The abstracts will be reviewed by members of the Cyprus Human Rights Law Review’s Editorial and Scientific board and a number of authors will be invited to submit their final papers of no more than 15,000 words by 30 November 2013. Please note that already published papers will not be eligible for consideration.

New ECHR Publications and New Publisher for Court's Report Series

Returned from summer break, I am starting off with a short overview of a number of recent publications on the ECHR.  The new publications on the ECHR are:

* Andrew Drzemczewski, 'L'élection  du juge de l'Union européenne à law Cour européenne des droits de l'homme', Revue trimestrielle des droits de l'homme, no. 195 (2013) pp. 551-563.

 * Monika Ambrus, 'The European Court of Human Rights and standards of proof in religion cases', Religion and Human Rights, vol. 8, no. 2 (2013) pp. 107-137.

* Virginia Mantouvalou, 'Labour Rights in the European Convention on Human Rights: An Intellectual Justification for an Integrated Approach to Interpretation', Human Rights Law Review, vol. 13, no. 3 (2013).

* From last year, but I had not noticed it earlier: C. Stubberfield, 'Lifting the organisational veil: positive obligations of the European Union following accession to the European Convention on Human Rights', Australian International Law Journal, vol. 19 (2012) pp. 117-142.

* And on the online resource Open Democracy, Marco Duranti of the University of Sydney has published 'Strasbourg Court is Anti-Democratic Just As Its Founders Intended'.

Secondly, there is a new publisher for the Court's official series of leading cases (which were previously published by Carl Heymanns Verlag), the Reports of Judgments and Decisions: the Dutch publisher Wolf Legal Publishers. This is the new publisher's own information on the series:

This series is an official publication of the Court’s leading judgments and decisions identified by the Court’s Jurisconsult and formally selected by the Bureau, composed of the Court’s most senior judges. The composition of the Reports for the years 2008 to 2013 is available on www.echr.coe.int (under Case-
Law).

The Reports are designed primarily for legal professionals, libraries and academics and are edited by the Court’s Registry. Each volume contains a series of cases or extracts of cases, preceded by a summary prepared by the Registry. Each summary contains a case description, keywords and key notions in addition
to the facts of the case and the Court’s main findings.

Cases are presented in five to six volumes every year, accompanied by an index listing them both alphabetically (by applicant and by respondent State) and analytically (by Article(s) of the European Convention on Human Rights)

The current backlist of the series starts with 2008, for which the full set will be available from September 2013. The set for 2009 will be made available later in 2013, with the 2010 and 2011 sets to follow thereafter. This print series complements the case-law information available on the Court’s website.