Wednesday 12 June 2024

Book Launch: The ECtHR and the Norm Against Torture

On Thursday 20 June (12:00-14:00 CET), the University of Amsterdam is organizing a book launch of the book 'Between Forbearance and Audacity: The European Court of Human Rights and the Norm against Torture', authored by Ezgi Yildiz (California State University, Long Beach). The book was published with Cambridge University Press in November last year. This is the abstract:

'When international courts are given sweeping powers, why would they ever refuse to use them? The book explains how and when courts employ strategies for institutional survival and resilience: forbearance and audacity, which help them adjust their sovereignty costs to pre-empt and mitigate backlash and political pushback. By systematically analysing almost 2,300 judgements from the European Court of Human Rights from 1967–2016, Ezgi Yildiz traces how these strategies shaped the norm against torture and inhumane or degrading treatment. With expert interviews and a nuanced combination of social science and legal methods, Yildiz innovatively demonstrates what the norm entails, and when and how its contents changed over time. Exploring issues central to public international law and international relations, this interdisciplinary study makes a timely intervention in the debate on international courts, international norms, and legal change.'

You can register here for the book launch. 

Monday 10 June 2024

New ECHR Readings

Please find below a new selection of recent writings, articles and other, about the European Convention on Human Rights and its Court:

* Fleur van Leeuwen, ‘Epistemic Blind Spots, Misconceptions and Stereotypes: The Home Birth Jurisprudence of the European Court of Human Rights’, European Journal of International Law (2024):

 

‘This article offers a critical feminist reading of the home birth jurisprudence of the European Court of Human Rights. The aim is to shed light on the gender sensitivity of the Court in its legal reasoning and knowledge production. Since its first decision on the permissibility of a blanket de facto home birth ban in the case of Ternovszky v. Hungary in 2010, the Court has given five judgments on the matter, including a Grand Chamber decision in the case of Dubska and Krejzova v. Czech Republic. The author finds that the Court applies an overtly restrictive obstetric narrative of childbirth without situating its controversial epistemic basis. In doing so, the Court reinforces a rationale that is linked to loss of agency and disempowerment of persons in childbirth and reproduces harmful stereotypes. The article highlights bias in knowledge formation and (re)production at the Court in addressing cases of home birth. The findings in this article add to feminist inquiries of international human rights adjudication, specifically in regard to knowledge formation, knowledge production and stereotyping as well as to literature on the Court’s gender sensitivity.’


* Kumush Suyunova, ‘Human Rights Restrictions Prompted by the COVID-19 Pandemic: Uncertainties and Differences in the Practice of ECHR Parties’, Yearbook of International Disaster Law (2022).

 

The newest edition of the European Yearbook on Human Rights (2023, published in 2024), edited by Philip Czech, Lisa Heschl, Karin Lukas, Manfred Nowak and Gerd Oberleitner, ialso includes number of ECHR-related contributions:

 

* Irene Sacchetti, ‘Planetary Justice, Human Rights and the ECHR: Advancing Alternative Onto-Epistemologies to Face Climate-Related Challenges’ (Intersentia 2024):

 

‘Injustices driven by climate change as a result of human ecological destructive activities have become of a planetary level, impacting on the rights of present and future generations, humans and non-humans. The analysis of human rights law through the lens of planetary justice, a conceptual framework which demands an expanded vision of justice beyond borders, across generations, and for non-humans, reiterates the inability of existing human rights law to deal with the intertemporal and interspecies dimensions of climatic harms. This contribution evaluates developments in the context of the Council of Europe (CoE), including the filing of the first climate cases before the European Court of Human Rights, and the push for the recognition of the right to a healthy environment. In doing so, it argues that, despite these steps forward, human rights law remains inefficient to address intergenerational dimensions of justice in the context of climate change . As an attempt to overcome intrinsic obstacles of human rights law deriving from its Western orientation, the contribution explores the potential of informing the interpretation of human rights norms with alternative onto-epistemologies, to ultimately pollinate human rights with alternative ways of thinking. This may provide a way to navigate the unprecedented challenges posed, by climate change, to the human rights legal framework.’

 

* Tomasz Sroka, ‘The Positive Obligations of States to Protect the Climate or the Environment as Part of the Protection of Human Life and Health under the European Convention on Human Rights’ (Intersentia 2024):

 

‘The purpose of this contribution is to analyse whether and how the protection of a clean environment or the climate can be realised through the positive obligations of states to protect human life and health that can be derived from Articles 2 and 8 of the European Convention on Human Rights (ECHR). The contribution includes an attempt to reconstruct the rights to respect, protect and fulfil human rights in environmental matters, as well as the scope of states’ obligations in the field of adaptation and mitigation of climate and environmental risks, as a precondition for the adequate and sufficient protection of human life and health. The thesis of the contribution is that the concretisation of states’ positive obligations within the above scope requires taking into account both the general principles of interpreting obligations to protect human life and health in the context of environmental hazards, and the specific criteria for determining what specific actions, in specific factual circumstances, the state is obliged to take in order to fulfil its obligations under Articles 2 and 8 ECHR. The contribution also presents a catalogue of the most important interpretation principles and specific criteria of the concretisation of states’ positive obligations.’

 

* Clara Zimmermann, ‘Is the European Convention on Human Rights Equipped to Tackle the Plastic Crisis in the Mediterranean Sea?’ (Intersentia 2024):

 

‘Plastic pollution constitutes a complex and severe problem of global scale. As plastic debris accumulates in nature, it increasingly finds its way back to humans through the food chain, the water and the air, with unknown consequences for human health, as well as for terrestrial and marine ecosystems. Additionally, it contributes significantly to the progressive deterioration of the planetary resources, affecting the enjoyment of human rights. The interdependence of human rights and environmental protection is largely recognised by international, regional and national legislation and case law. However, the relation between the human rights legal regime and the environmental legal regime is not straightforward on a dogmatic level. This contribution explores this connection with regard to the European Convention on Human Rights (ECHR), in relation to marine plastic pollution of the Mediterranean Sea.


To this end, the contribution summarises the state of the current academic debate, and the case law of the European Court of Human Rights, on the environmental dimension of recognised human rights, the procedural environmental human rights, and the human right to a healthy environment , with regard to the ECHR. Drawing on scientific assessments of the impacts of plastic pollution on marine ecosystems and humans, as well as on evolutions in international human rights law, the contribution explores arguments in favour of a state duty to protect against environmental harm caused by plastic pollution , under the ECHR, as well as conceptual challenges for the integration of environmental protection within the existing, intrinsically anthropocentric European human rights framework. Bridging environmental law and human rights law, the contribution further proposes a substantive content of a human right to a healthy environment, in respect of healthy oceans, under the European human rights regime, following the concept of ‘good environmental status’ rooted in the EU Marine Strategy Framework Directive.’

 

* Annick Pijnenburg, ‘Ukraine and the Netherlands v. Russia: Taking Stock of the Latest Developments in the Case Law of the European Court of Human Rights on Extraterritorial Jurisdiction’ (Intersentia 2024):

 

‘On 25 January 2023, the European Court of Human Rights (ECtHR, Court) issued its admissibility decision in Ukraine and the Netherlands v. Russia . This inter-state case concerns events in the Donbass area of eastern Ukraine, which began in the spring of 2014, including the downing of flight MH17. It is a landmark decision for many reasons, including the Court's approach to extraterritorial jurisdiction . Indeed, the Court used this case as an opportunity to clarify its general principles regarding jurisdiction, and it is likely to become the leading case on extraterritorial jurisdiction for years to come. More specifically, when formulating the general principles on jurisdiction, in Ukraine and the Netherlands v. Russia, the Court takes into account recent developments in its case law. Accordingly, this contribution examines to what extent the admissibility decision in Ukraine and the Netherlands v. Russia succeeds in incorporating recent developments in the ECtHR's case law into a coherent framework on jurisdiction. It first briefly recalls the main trends in the ECtHR's case law, across landmark cases such as Banković and Al-Skeini, before examining recent relevant ECtHR case law on extraterritorial jurisdiction. The contribution then discusses in detail the Court's approach to jurisdiction in Ukraine and the Netherlands v Russia . It thus shows that Ukraine and the Netherlands v. Russia can be seen as an ‘update’ of the general principles in Al-Skeini. It also confirms that, overall, the Court's case law continues to move in the direction of a more expansive and granular understanding of jurisdiction.’

 

* Lorenzo Acconciamessa, ‘The Case Law of the ECtHR in 2022: Strasbourg in the ‘Age’ of Protocol No. 15’ (Intersentia 2024):

 

‘This contribution analyses the developments in the case law of the European Court of Human Rights in 2022. This is the first year aft er Protocol No. 15, which, inter alia, introduced an express reference to the principle of subsidiarity and the doctrine of margin of appreciation into the Preamble of the European Convention on Human Rights, entered into force. Therefore, although the increased relevance of subsidiarity and margin of appreciation in the Court's approach to the interpretation and application of the Convention is not a new trend, it seems that it can provide an appropriate lens through which the relevant case law developments should be assessed. In light of the above, the contribution examines (some of) the relevant ‘key cases’ decided by the Court in 2022, and tries to highlight the relevance of the above-mentioned principle and doctrine in the identification of the scope and content of the obligations imposed on the domestic authorities by the Convention, as well as in the determination of the nature and scope of the Court's review over compliance with such obligations.’

Friday 7 June 2024

Call for Papers: Critical Approaches to European Human Rights Law

On 17 January 2025, Esra Demir-Gürsel (Hertie School), Corina Heri (University of Zürich) and Jens Theilen (Helmut Schmidt University) are organizing a workshop on Critical Approaches to European Human Rights Law, and a Call for Papers for the workshop has just been launched. The aim of the workshop is to critically reflect on the ECHR and the ECtHR. The workshop will be held at the Hertie School Centre for Fundamental Rights in Berlin. This is the description of the Call for Papers:

'With this workshop, we aim to provide a forum for critical reflection on the European Convention on Human Rights (ECHR) and the European Court of Human Rights (ECtHR). The practical relevance of human rights language has continued unabated for several decades now. Alongside the rise of human rights, trenchant critiques have been offered. These have foregrounded, for example, the coloniality of human rights, their role in cementing rather than challenging the status quo, and the limitations of who gets to speak in the name of human rights (Venthan Ananthavinayagan & Theilen 2024; see e.g. Mutua 2001; Kapur 2002; Baxi 2008; Marks 2011; D’Souza 2018). 

While critical accounts of human rights often acknowledge their use for emancipatory aims by social movements or community activism, they particularly highlight their limits in institutionalised and judicialised settings (O’Connell 2018; McNeilly 2019). The ECtHR could be considered a paradigmatic example of strongly judicialised human rights. Nonetheless, critical accounts that focus specifically on European human rights law have been scarce. Despite long-standing debates about method and different perspectives (Dembour 2006; Gonzalez Salzberg & Hodson 2020; Gerards, Erken & Loven 2023), most scholarship on the ECHR remains doctrinal or, increasingly, quantitative. Rather than seeing European contributions to human rights as ambivalent (Çalı 2023), large parts of scholarship continue to depart from the unspoken assumption that European human rights law constitutes a fundamentally benign project. 

Meanwhile, historically oriented scholarship on the ECHR and ECtHR has laid bare their foundational entanglements with European conservatism, colonialism, and national sovereignty (Duranti 2017; Reynolds 2017; Demir-Gürsel 2021). Strong critical traditions have also developed with a view to challenging the ECtHR’s approach to particular topics such as gender and sexuality (Theilen 2018; Gonzalez Salzberg 2019; Kapur 2020; O’Hara 2021), migration (Dembour 2015; de Vries & Spijkerboer 2021), secularism and religiosity (Danchin 2011; Demir-Gürsel 2013; Kapur 2020), or carcerality (Lavrysen & Mavronicola 2020; Pinto 2023; Tapia Tapia 2023). However, the implications of these critical accounts for how we approach European human rights law as a whole remain relatively underexplored. With some exceptions, even many critical accounts do not take the step from critique of the ECtHR’s case-law to critique of the ECtHR itself and of European human rights law.

We would like to push this boundary by further developing critical approaches to European human rights law as a whole. Taking the various critical traditions on particular human rights themes as a starting point, we aim to broaden the conversation and consider their implications for how we think about the ECHR and the ECtHR more generally. How might a Marxist critique of courts, a queer critique of rights, or a decolonial critique of the notion of “Europe” shift our understanding of the European project of human rights? 

To this end, we also welcome contributions that deconstruct and challenge dominant framings (Butler 2016) of the ECHR and the ECtHR in order to shake up assumptions about their role for emancipatory politics. How does scholarship frame the ECHR and the ECtHR? How can we challenge the framings of existing scholarship? Framings to critically analyse might include conceiving of the ECtHR as a successful court (particularly in comparison to human rights courts in other regions), as an agent of progress, or as a strategic actor focussed on institutional continuity. They might involve common tropes like legitimacy management or incrementalist change. How are such framings of the ECtHR normalised and naturalised within scholarship, what role does emotional attachment to human rights play in upholding them, and what are their politics? 

Building on these discussions, we are also interested in debating what comes after critique – or indeed “after rights” (Sokhi-Bulley 2024; Odysseos 2024) – specifically in the context of European human rights law with its high measure of institutionalisation and judicialisation. What insights can we gain from an engagement with notions like rights redemptionism (Golder 2014) and cruel optimism (Berlant 2011)? How should we engage with the dangers of both false necessity and false contingency (Marks 2009) in the context of European human rights law? 

In brief, we would like to debate the direction(s) that critical scholarship on the ECHR and the ECtHR could or should take. We hope that the workshop will serve to inaugurate a loose research network for thinking critically about European human rights law.'

The deadline for abstract submissions is 8 July 2024. 

Thursday 6 June 2024

Conference on the Implementation of ECtHR Judgments

On 19 June 2024, the European Implementation Network (EIN) will hold a conference entitled 'Safeguarding the Rule of Law: Implementing ECtHR Judgments for Lasting Impact' as part of its project on 'Promoting the Rule of Law in Europe through the Implementation of Judgments of the ECtHR Concerning Independence and Impartiality of the Judiciary'. The conference will be organized in the Hague in the Netherlands. The aim of the conference is to empower civil society and practitioners across Europe to promote rule of law reforms by sharing knowledge about the implementation of judgments of the ECtHR.

The project aims to promote the independence and impartiality of the judiciary in Europe, through the implementation of judgments of the European Court of Human Rights on this topic. More information about the project can be found here

Wednesday 29 May 2024

Court and Academia Dialogue

The University of Strasbourg's Law Faculty is organising its fourth annual colloquium between academics and judges of the European Court of Human Rights. The French-language hybrid event, entitled 'Dialogue entre la Cour européenne des droits de l’homme et la Doctrine', takes place on Friday 14 June from 13h45 to 18h00. It is organised by  Florence Benoit-Rohmer, Ledi Bianku and Marko Bosnjak. Topics to be discussed include Protocol 16, the right to strike, the rule of law and judicial independence. The full programme can be found here. For registration, please go here.

Tuesday 28 May 2024

Webinar on ECtHR Climate Change Cases

On Friday 31 May (13:00-14:00 CET) the University of Göttingen is organizing a webinar entitled 'Climate Change and Human Rights: Exploring the ECHR’s KlimaSeniorinnen and Duarte Agostinho cases'. In the webinar, Corina Heri (Postdoctoral Researcher at the University of Zurich) and Kata Dosza (Senior Associate Researcher and Adjunct Professor at the Brussels School of Governance) will be discussing the ECtHR's decisions in the cases of Duarte Agostinho and KlimaSeniorinnen.  The webinar is organized for students and academics interested in climate change and human rights, legal professionals, scholars, climate activists and NGO representatives, policymakers and governments officials, and anyone else interested in climate litigation and human rights. 

The webinar will cover the following topics:

- The legal frameworks and arguments in the Duarte Agostinho and KlimaSeniorinnen
cases.
- The ECHR's reasoning behind its decisions and their broader implications.
- Comparative analysis with other significant climate litigation cases.
- The evolving role of international human rights frameworks in addressing global
environmental challenges.

You can register here.

Friday 24 May 2024

New President and Other Changes at the Court

Last week, the European Court of Human Rights announced a number of position changes in its internal organisation. Most pre-eminently, the Court elected its new President: Marko Bošnjak, the Court's judge in respect of Slovenia. Since 2022, he has been a vice-President of the Court and his term as a judge started in 2016, meaning it will end in 2025. His term as a President will thus be relatively short, following a pattern of the Court's Presidents of the last years - showing what a different type of institution the Court has become compared its early decades when Presidents served for many years on end in a parttime Court with much fewer cases. Judge
 Bošnjak succeeds the Court's current President Síofra O’Leary on 2 July 2024.

The election led to other shifts: Arnfinn Bårdsen, the judge in respect of  Norway, has been elected as Vice-President. And Ivana Jelić, the judge in respect of Montenegro, has been elected as new Section President. They will also take up their duties on 2 July. 

Good luck to all in their new positions! 

Wednesday 8 May 2024

75 Years Council of Europe and Civil Society

In the week in which the Council of Europe celebrates its 75th anniversary (founded on 5 May 1949) - a full and bilingual timeline is available here - two civil society initiatives were undertaken:

The first is the presentation to states of the 'Civil Society Evaluation of the Progress of Implementation of the Reykjavík Summit Commitments by the Council of Europe and Its Member States' one year after the Reykjavik Summit'. This document, compiled under the auspices of CURE (Campaign to Uphold Rights in Europe) is the outcome of a process (in which the founder of this blog also participated) in which both the steps taken so far by states to implement the Reykjavik Declaration were compiled as well as the steps that still need to be taken were identified. In terms of the issue of implementation of judgments of the Court, the document acknowledges some important progress on technical, budgetary and procedural matters, but simultaneously urges states not to lose sight of the core of the matter: 'ensuring a stronger political follow-up to cases of non-implementation' by the Committee of Ministers and CoE institutions.

Secondly, a group of over 400 civil society organisations have joined forces to call upon Council of Europe to add a protocol to the ECHR with a right to a clean, healthy, and sustainable environment, following upon a report adopted by PACE earlier last month. More organisations can join the call here.

Thursday 2 May 2024

New Special Issue ECHR Law Review

The first issue of the year of the ECHR Law Review has just been published (Vol. 5, Issue 1). This time it is a special issue entitled 'The ‘Special’ Relationship between the United Kingdom and the European Convention of Human Rights'. The special issue focuses specifically on the question of what the consequences would be if the UK decides to withdraw from the ECHR. The issue contains one editorial note and nine research articles. This is the table of contents:

Kanstantsin Dzehtsiarou, 'The United Kingdom and the European Convention on Human Rights: Together Until the End?'

Merris Amos, 'Reality Amidst Rhetoric: Implementation of ECtHR Judgments in the UK'

* Ed Bates, 'UK Withdrawal From the echr (‘BrECHRit’): From Taboo to Tenable?'

* Frederick Cowell, 'Locking in Human Rights: An Exploration of the Barriers to ECHR Withdrawal'

* Lewis Graham, 'Boldness, Caution, Avoidance: Recent Cases Against the UK Before the European Court of Human Rights'

Paul Johnson, 'UK Withdrawal From the European Convention on Human Rights: A Disaster for lGBT People'

Natasa Mavronicola, 'Facilitating (Further) Inhumanity: On the Prospect of Losing Article 3 echr, a Vital Guarantee for the Under-Protected'

* Valsamis Mitsilegas and Elspeth Guild, 'The UK and the ECHR After Brexit: The Challenge of Immigration Control'

* Patricia Popelier, 'What’s Cooking? General Measures in the Case Law of the European Court of Human Rights'

* Stuart Wallace, 'Military Operations and Withdrawal From the European Convention on Human Rights'

Wednesday 1 May 2024

Seminar on Procedural Costs and the ECtHR

On Friday 31 May from 12:00-13:15, the Faculty of Law of Lund University is organizing a seminar entitled 'The Costs Policy of the European Court of Human Rights: From Judicialisation to Judicial Restraint'. In the seminar, Ezgi Özlü (Postdoctoral researcher at the Luxembourg Center of European Law of the University of Luxembourg) will be presenting her PhD on the Costs Policy of the European Court of Human Rights. This is a short description of the seminar:

'This seminar will examine how the policy of costs at the European Court of Human Rights affects the nature of the cases brought before it. The main focus is on legal aid and the reimbursement of costs and expenses mechanisms. Eminent for the protection and promotion of human rights in Europe, both of these mechanisms have been developed in parallel with the gradual inclusion of the individual to the proceedings. Through the judicialisation process, with the broad use of the ‘equity’ principle, the Court has adopted a flexible approach. Nevertheless, managerialism and self-restraint have weakened this policy. The application of a single scale for legal aid, formalist assessment of reimbursement criteria, automatisation in decision-making, and dependence on member States demonstrate how the current costs policy limits the scope of individual application. This restriction, however, also limits the powers of the Court.'

You can participate via Zoom: https://lu-se.zoom.us/j/64236572774