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.

Strasbourg Court issues interim measures against Turkey regarding the Nagorno-Karabakh conflict

Since 27 September 2020, the long-frozen conflict over Nagorno-Karabakh between Armenia and Azerbaijan flared up again and has taken a high death toll.

Last week, the European Court of Human Rights issued an interim measure against Azerbaijan in a case lodged by Armenia. The Court called both parties to the conflict to secure the Convention rights and refrain from any military actions. Since then, however, the conflict has only escalated. Furthermore, reports suggest of the risk of involvement of other States, including Turkey in support of Azerbaijan. Against this background, on 6 October 2020 the ECtHR has issued another interim measure in relation to Nagorno-Karabakh conflict, this time against Turkey in a case lodged by Armenia. The Court “now calls on all States directly or indirectly involved in the conflict, including Turkey, to refrain from actions that contribute to breaches of the Convention rights of civilians [sic!], and to respect their obligations under the Convention.” The interim measure suggests that Turkey could be either directly or indirectly involved in the conflict.

In the past years, we have seen an increase of requests for interim measures in inter-State and other frozen conflicts in Europe. The Court has issued numerous interim measures in relation to the conflicts in Ukraine and the Caucasus. The practice suggests that in relation to such conflicts, States have a scarce record of complying with interim measures. Although interim measures are provided only in Rules of the Court, the Strasbourg Court has held that failure to comply with them leads to a breach of the Convention. 

The wider the scope of an interim measure, it seems, and the higher the stakes for states, the less likely that the measures will be complied with. And as a consequence of that same wide scope (here "actions that contribute to breaches of the Convention rights"), it will be also much more contentious at a later stage to assess whether the interim measure has been complied with. Potentially another context in which the Court is dragged into a variety of 'lawfare' between states, rather than being able to stick to its roles of providing individual justice and constitutional-type interpretation of the Convention.

Kushtrim Istrefi and Antoine Buyse

International Online Conference on Youth, Climate Change and the European Court of Human Rights

The University of Tampere in Finland, together with the Finnish Human Rights Centre, is organising an international conference on Youth, Climate Change and the European Court of Human Rights on Friday 27 November from 14:00 to 17:00 (EET = UTC +2 time zone). Fitting to the theme and these current times, the conference will be an online event and thus with a lower carbon footprint. This is what the conference will be about:

'The first applications made by youth on climate change are currently pending before the European Court of Human Rights. The Youth, Climate Change, and ECtHR conference will bring together environmental and human rights scholars, practitioners, and young people to reflect and debate on the current topics in the field of environmental human rights and youth climate litigation. The goal is to contribute to the dialogue between academic community and civil society, especially the youth of environmental activists who want to hold States responsible for their failure in protecting the environment, an omission that has been threatening human rights.

The Conference’s format is devised to facilitate reflections and provoke the debate among panelists with the contribution of the audience. The panels will be organized by themes, and the experts will address questions sent by the active youth who are seeking significant change and urgent actions needed to stop the climate crisis. The audience online will also be able to contribute to the conversation by sending questions and comments directed to the panelists.

PANEL I - Environmental Rights as Human Rights

14:00 – 14:15

Opening statements

Sirpa Rautio, Director of the Human Rights Centre

Jukka Viljanen, Professor of Public Law, Tampere University

Young people’s message

14:15 – 14:30

Keynote: David R. Boyd, UN Special Rapporteur on Human Rights and Environment

“Climate change & human rights and the role of youth”

14:30 – 15:30

Cinnamon Piñon Carlarne, Associate Dean for Faculty and Intellectual Life, Professor of Law, Ohio State University, Moritz College of Law

Kari Kuusiniemi, President of the Supreme Administrative Court of Finland

Bradlie Luisa Ana Martz-Sigala, Research Assistant (CCEEL), University of Eastern Finland

Nicole Onnela, Chair of UN Youth of Finland

Questions by students from Tampereen lyseon lukio high school “Eurooppalinja”

15:30 – 15:45

Break

PANEL II - International Trends in Climate Change, Courts and Youth participation

15:45 – 16:00

Keynote: Dr. Daphina Misiedjan, Assistant Professor, International Institute of Social Studies (ISS), Erasmus University Rotterdam

“The Dutch experience (Urgenda case) and the potentials of the ECtHR in environmental cases”

16:00 – 16:50

Gerry Liston, Legal Officer at Global Legal Action Network

Heta Heiskanen, Secretary-General of the Climate Panel, Ministry of the Environment of Finland

Päivi Hirvelä, Former Judge of the ECtHR, Judge in the Finnish Supreme Court

Milka Sormunen, PhD student, University of Helsinki

Ellen Ojala, Climate activist, Climate youth delegate

Questions by students from Tampereen lyseon lukio high school “Eurooppalinja”

16:50 – 17:00

Closing of the conference: conclusions and final statements'

You can register for the conference here.

New Book on the European, Inter-American and African Human Rights Courts

A new book by professor Laurence Burgorgue-Larsen (Université Paris 1 Panthéon Sorbonne) traces and evaluates the histories and common threads running through the work of the world's three regional human rights courts. This comparative volume, written in French, and published by A. Pedone Publishers, is entitled Les 3 Cours régionales des droits de l’homme in context. La justice qui n'allait pas de soi [freely translated: The three regional human rights courts in context. Justice that was not self-evident]. One of the first monographs, written by one of France's key ECHR experts, extensively delves into the bigger picture of how the three regional courts came about, which challenges they faced and how in spite of very different regional socio-political contexts and historical trajectories, they are confronted with similar issues and dilemmas. This is the abstract: 

'Cet ouvrage a pour ambition de présenter la création et le fonctionnement des 3 Cours régionales des droits de l’homme qui se trouvent à Strasbourg, San José et Arusha. Incontestablement éloignées par un ensemble d’éléments d’ordre politique, juridique et sociologique, ces trois juridictions sont pourtant reliées par des éléments matériels et des questionnements communs indiscutables.

Matériellement, leurs textes de références sont arrimés à la Déclaration universelle des droits de l’homme du 10 décembre 1948. Les préambules respectifs de la Convention de sauvegarde, de la Convention américaine et de la Charte africaine insèrent, en effet, le Régionalisme dans le cadre plus général de l’Universalisme. Quant aux questionnements qui les traversent, ils sont marqués de façon irréductible par des dynamiques convergentes. Les 3 Cours doivent s’assurer, en permanence, de l’acceptation par les Etats, tant de leur existence que des lignes majeures de leur jurisprudence ; doivent inciter aux transformations de leurs systèmes respectifs afin qu’ils puissent s’adapter à différents types de contraintes ou à l’inverse freiner toute tentative d’affaiblissement de leur office ; trouver l’équilibre entre la simple « sauvegarde » des droits et libertés d’un côté et leur « développement » de l’autre, en ayant en ligne de mire les principes fondateurs de leur office et la réparation des préjudices subis par les victimes.

Comparer de façon dynamique les mécanismes de la garantie régionale des droits de l’homme, en utilisant les outils de la science juridique, mais également en mobilisant les ressources de l’histoire, la science politique et la sociologie, permet de rappeler que la Justice des droits de l’homme ne va pas de soi. En dépit de l’extraordinaire développement du droit international des droits de l’homme après le « moment 45 », la garantie régionale n’a jamais été une option politique naturelle pour les Etats. Les 3 Cours sont nées dans la douleur, ont évolué en ordre dispersé, et n’ont de cesse de remplir leur mission de protection dans des contextes politiques souvent complexes où les souveraines puissances ne se laissent jamais aisément brider.'

Submitting Guest Posts to the ECHR Blog

Dear ECHR Blog readers, as part of our announced renewal and expansion, we have now added a new item to the blog. For many years, this blog has received guest posts of eminent academic colleagues. We are now more explicitly inviting fellow academics to submit ECHR-related guest posts to this blog, to represent the multitude of voices in the research community focusing on the ECHR. To help and guide you if you are interested to submit a guest blog post, we have now formulated guidelines, to be found below in this post and as a permanent page in the menu of this blog. We are looking forward to your contributions!

Antoine Buyse and Kushtrim Istrefi

Guidelines for contributions to the ECHR Blog

The ECHR Blog is an academic blog and thus aims to publish academic contributions of both theoretical and practice-oriented importance. We welcome unsolicited submissions (guest posts) of high-quality pertaining to the ECHR system from academics (and, by exception, practitioners). We particularly welcome submissions addressing:

• The case-law of the ECtHR, particularly if they concern new developments. 

• New developments related to ECHR rights, procedures, principles and concepts.

• New developments within the Council of Europe institutions as well as other international organizations that directly relate to the ECHR system.

• The case-law of the Court of Justice of the European Union when it relates directly to the application of the ECHR, or is directly relevant for ECtHR case-law.

• By exception, national judicial, legislative or political developments that have a significance for the Convention system and can be of interest to an international audience.

• Any other original contribution related to the ECHR developments.

We also welcome book symposiums related to recent publications on the ECHR.

The review process: the editors aim to reply within two working days. However, at times this may take longer. Following a review by the editors, authors may be asked to revise their submission. The initial or revised submission may be accepted or rejected for publication at the editors’ discretion. A submission may be rejected if, inter alia, i) it does not fit the scope of the blog substantively, ii) it does not meet the required quality and focus of analysis, iii) the author does not present balanced arguments, uses defamatory language, and/or is directly involved on the matter discussed in the submission (e.g. a lawyer representing a case before the ECtHR), and/or iv) an issue has already been extensively published upon on this blog or other outlets and/or does not add much in terms of substance or analysis or is no longer topical.

Length: 1200-1800 words. Longer posts may be accepted but authors may be asked to divide it in two parts. 

Style: Use Times New Roman size 12, single spaced and single line between paragraphs. Headings may be used at the author’s discretion.

Language: Submissions must be written in British spelling. They must be of good quality in terms of grammar and spelling.

Hyperlinks instead of footnotes: Use hyperlinks instead of footnotes when referring to any sources and other materials.

Image for the blog post: You are free to recommend an open-source image to be used for the guest blog.

Author’s biography: Please indicate your title, name, surname and institutional affiliation (and insert a hyperlink to your institutional profile page, where applicable).

Submissions must contain the subject line ‘ECHR Blog: Submission’ and must be sent to: a.c.buyse at uu.nl and/or k.istrefi at uu.nl .

Online (and in-Person) Conference on Human Rights and Environmental Protection and the ECHR

On 5 October 2020, the European Court of Human Rights is hosting on its premises a conference on Human Rights and Environmental Protection. The conference will also be streamed online. The registration is open until 25 September. The full programme can be accessed here. Below is the description of the conference: 

'How to address human rights class-actions stemming from large-scale environmental pollution? Where to draw the line between a policy decision within the State’s margin of appreciation and a State’s failure to strike the right balance between conflicting interests? Whether to allow legal standing to applicants who vindicate collective and intergenerational rights? Ought the Court rely on the precautionary principle and adopt a new causation test in applications concerning global warming? Or should it rather refrain from taking up the role of Europe’s climate change tribunal? In the event violations are found, what measures of redress and prevention should be imposed on Member States? How to ensure better State compliance? 

Meaningful answers to these questions call for a general and conceptual reflection on the role of international human rights tribunals in reviewing Member States’ efforts to comply with their obligations under the environmental law to mitigate and adapt to the effects of the climate crisis and to stop nature’s degradation. 

The conference … aims at facilitating a debate between renowned practitioners and academic experts in the field of international environmental law and human rights.'

New Edition of the Book Freedom of Expression and the Internet by Benedek and Kettemann

Wolfgang Benedek and Matthias C. Kettemann have just published the second edition of the book Freedom of Expression and the Internet (Council of Europe). The second edition comes at a time when most of us express, receive, engage with, and create ideas and opinions in and through internet platforms. The book is available in print and pdf. Here is the publisher’s summary of the book: 

'Human rights matter on the internet. Without freedom of expression, people cannot participate in everything that the information society has to offer. Yet online free speech is in danger. Between state laws, private rules and algorithms, full participation in the online communicative space faces many challenges. This publication explores the profound impact of the internet on free expression and how it can be effectively secured online. 

The second, updated edition of this introduction into the protection of freedom of expression online answers essential questions regarding the extent and limits of freedom of expression online and the role of social networks, courts, states and organisations in online communication spaces. In clear language, with vivid examples spanning two decades of internet law, the authors answer questions on freedom of expression in cyberspace. Addressing issues from the protection of bloggers to the right to access online information, the publication also shows the importance of the standard-setting, monitoring and promotion activities of international and non-governmental organisations and includes a chapter on relevant national practice. It pays special attention to the role of European human rights law and the Council of Europe as this region’s most important human rights organisation.'

Registration for the European Human Rights Moot Court Competition is Now Open

The European Human Rights Moot Court Competition (EHRMCC) is a Europe-wide moot court competition dedicated to the European Convention on Human Rights. It was founded in 2012 by the European Law Student Association and the Council of Europe. 

 

The Competition simulates the proceedings before the European Court of Human Rights based on a fictional case. This year, the fictional case very much resembles the reality in which we live in, raising issues of state of emergency during an epidemic, protests against such measures, and State’s use of facial recognition technologies to identify those allegedly violating emergency measures. 

 

The registration of teams for the Competition is now open until 1 November 2020. As of last year, all teams must first compete at the regional level. The best 18 teams from the regional rounds compete in the final round in Strasbourg, in the Palace of Europe and the European Court of Human Rights. In addition to the experience that students gain from the Competition, all members of the winning team are invited for a traineeship at the Strasbourg Court. 

 

Good luck to all those participating in this year’s Competition!

 

As this is my first post as a co-editor, I avail myself of this opportunity to express how honored I am to join the ECHR Blog, and grateful to Antoine Buyse, as a founder and editor of this Blog, for his trust in me. 

 

I always considered this Blog as an important platform to keep those interested in the ECHR abreast of the ever-increasing developments related to the Convention system and engage in discussion of those developments. I join the ECHR Blog with the aim to further serve that goal.

 

Best wishes, Kushtrim Istrefi

 

Expanding the ECHR Blog - A New Face

 

Dear readers of the ECHR Blog, this blog is about to expand and renew! As some of you will know, keeping up a blog can be quite a daunting - yet very enjoyable - task. After more than 12.5 years and more than a 1000 posts of keeping up this blog all by myself since I founded it in May 2008, I am very happy that as of this week, this blog has an additional editor, my SIM colleague dr Kushtrim Istrefi. 

Kushtrim Istrefi is an assistant Professor with the Netherlands Institute of Human Rights (SIM) at Utrecht University. He holds a PhD from the University of Graz. His research focuses on the intersections of fundamental rights law and international security, with an emphasis on the ECHR. He has published on, among others, states of emergency, targeted sanctions, counter-terrorism, judicial activism and secession. Next to his academic work, Kushtrim has litigated complex cases on the right to life, prohibition of torture and the right to fair trial before the European Court of Human Rights and the EULEX Human Rights Review Panel. He also provided legal opinions to the Kosovo Constitutional Court and Kosovo Parliament on Kosovo-Serbia agreements. He was also a visiting researcher at the European Court of Human Rights itself. He is in the editorial board of the European Convention on Human Rights Law Review and coaches Utrecht University Law School's European Human Rights Moot Court Competition team. 

I am very happy to add such a committed expert on the ECHR to this blog's editorial team. Together we will run the blog, add new items and can be approached for any ECHR-related conference announcements, publications, etc. Kushtrim, welcome on board! 

Dear readers, in the coming time we will incrementally implement more changes - so please keep an eye out for new things!

Kind wishes, Antoine Buyse

Online Conference on 70 Years ECHR

Next week, on Thursday 17 September 2020, the Institute of International and European Union Law of the Law School of Mykolas Romeris University in Lithuania is organizing an international e-Conference on '70 years of the European Convention on Human Rights and Fundamental Freedoms: challenges and prospects'. You can register for it here. This is what the conference is about:

'The Conference is intending to mark the 70th anniversary of the European Convention of Human Rights, highlighting its crucial role as one of the key international and European judicial instruments.

The Convention is a living instrument, to be interpreted by the European Court of Human Rights in the present-day conditions (see, among other authorities, Vallianatos and Others v. Greece [GC], nos. 29381/09, 32684/09, § 84); an evolutive interpretation of the rights and freedoms enshrined in the text of the Convention enables necessarily the Court to take into account new technological and societal developments and changes that were unforeseeable 70 years ago. One of such nowadays challenges is the COVID-19 pandemic. Therefore, the effectiveness of the Convention rights protection at national and international level during the COVID-19 pandemic is a significant challenge for majority of European States, including Lithuania. 

The conference aims to create a platform for international scholars and practitioners, human rights activists and governmental bodies to participate in a discussion on the effective protection of human rights and a special role of the ECHR.'