Friday 30 May 2008

Gone with the Wind

It may have passed unnoticed, as happens with many admissibility decisions, but last February the Court handed down its first decision dealing with nuisance from wind turbines – considering the possible drawbacks of this environmentally friendly way of producing electricity. The case of Lars and Astrid Fägerskiöld against Sweden concerns noise nuisance of wind turbines erected near the applicants’ secondary home in the countryside. The Court assessed, amongst others, whether the noise directly affected the applicants home, family and private life (it did) and whether its effects attained a “minimum level of severity’ (they did not). Essentially, the level of noise did not exceed national or international (WHO) standards. According to the Court’s information, the in-house noise levels caused by the turbines oscillated between the noise in ‘a quiet room’ and noise caused by ‘moderate rainfall’! To summarise the decision, the authorities proceeded with due diligence, informing people in the area affected, conducting noise level tests and adjusting their policy as a result. National laws and regulations were respected. The Fägerskiöld decision is therefore mainly interesting as an example of a (moderately) ‘best practice’. The ECHR may contain a right to remain silent (in a criminal law context), but does not encompass a right to silence…

Another issue of note in this case – especially for housing rights afficionados like myself – is that the Court reaffirmed that secondary homes, used by people during holidays only, can fall within the concept of “home” of Article 8 ECHR. In Fägerskiöld the Court reiterated what it had earlier held in the case of Demades v. Turkey:

A person may divide his time between two houses or form strong emotional ties with a second house, treating it as his home. Therefore, a secondary house, which is fully furnished and equipped and used, inter alia, as a holiday home, can qualify as a “home” within the meaning of Article 8.

At times the decision borders on a commercial for wind energy (it makes one curious what kind of energy source the Strasbourg Court building uses!):

[T]o the Court, there is no doubt that the operating of the wind turbine is in the general interest as it is an environmentally friendly source of energy which contributes to the sustainable development of natural resources. It observes that the wind turbine at issue in the present case is capable of producing enough energy to heat between 40 and 50 private households over a one-year period, which is beneficial both for the environment and for society. (…) wind power is a renewable source of energy which is beneficial for both the environment and society.

The Convention itself contains no explicit environmental rights. In the last decade the Court has, however, started to adjudicate “green” cases. The 1994 judgment in López Ostra v. Spain, concerning industrial pollution, was the first case in this context in which the Court found a violation. In general, states have been granted a wide margin of appreciation in environmental cases, but violations – especially of Article 8 ECHR – have been found by the Court in various situations. Mostly, these concern instances in which the authorities failed to enforce existing national laws aimed at containing or limiting environmental or other nuisance. Well-known instances include Spanish nightclubs producing too much noise (Moreno Gómez) and air pollution by a Russian steel plant (Fadeyeva). The Court, in this way, helps to ensure that state parties take their own regulations on environmental protection seriously. Ironically, the environment only benefits from this protection if potential or real damage affects human beings.

For an extensive analysis of the Court’s stance in environmental cases, I recommend a very recent paper posted on SSRN by Ole Pedersen of the University of Aberdeen, entitled ‘European Environmental Human Rights and Environmental Rights: A Long Time Coming?' An older overview is to be found in Margaret DeMerieux’ ‘Deriving Environmental Rights from the European Convention for the Protection of Human Rights and Fundamental Freedoms’, Oxford Journal of Legal Studies, Vol. 21, No. 3 (2001), pp. 521-561. The Council of Europe has published a booklet entitled Environmental Protection and the European Convention on Human Rights (2005) and a Manual on Human Rights and the Environment - Principles emerging from the case-law of the European Court of Human Rights (2006), both also available in electronic version, but unfortunately not for free. Enough materials to green legal minds!

For the applicants this decision obviously wasn’t a sight for sore eyes, but rather a sigh for sore ears!

Thursday 29 May 2008

International Law Video Library

I just added a few extra links in the sidebar. One about which I am particularly enthusiastic is the International Law Video Library, hosted by Jean Allain of Queen's University in Belfast. The online library is a growing collection of video interviews with key figures in international law. The sections on Human Rights include interviews with Thomas Buergenthal (now at the ICJ, formerly at the UN Human Rights Committee), Patrick Robinson (now ICTY, formerly at the Inter-American Commission of Human Rights), David Weissbrodt (formerly at the UN Sub-Commission on the Promotion and Protection of Human Rights), Navanethem Pillay (ICTR) and many others. Hopefully an interview on the European Convention and Court will soon be added. Great tool for teaching and presentations!

You might also want to take a look at two related weblogs. One is the human rights blog, which provides a broad portal to all kinds of human rights-related news and links. It does not seem to have been updated for several weeks now though. The other is called Ph.D. Studies in Human Rights of professor William Schabas of the Irish Centre for Human Rights of the National University of Ireland at Galway. Apart from information on conducting Ph.D. research on human rights, it also contains very regular updates with an emphasis on international criminal law.

Wednesday 28 May 2008

Grand Chamber judgment in N. v. UK

Yesterday the Grand Chamber issued its judgment in the case of N. v. the United Kingdom. The case concerned a woman with HIV/AIDS who came to the United Kingdom from Uganda in 1998 and was, due to the seriousness of her condition, immediately hospitalised. Her application for asylum was rejected and, as a last resort, she claimed before the European Court of Human Rights, that expulsing her would be contrary to the probihition on inhuman and degrading treatment of Article 3 ECHR, for lack of adequate HIV/AIDS health care facilities in Uganda. The Grand Chamber held, by a big majority of fourteen votes to three, that expulsion would not cause a violation of Article 3.

The Court, and here one finds one of the main points of the importance of this judgment, clearly set out the principles applying in cases of expulsion of severely ill persons, not only those with HIV/AIDS. It held - in a confirmation and clarification of earlier case law - that such expulsion would violate Article 3 only in "very exceptional cases". Three considerations are relevant in the Court's assessment: (1) the seriousness and stage of the illness; (2) the availability of adequate treatment in the country of destination; (3) the availability of support by one's relatives.

This is one of those cases in which the Court faced terrible moral dilemmas and cut this difficult Gordian knot in a way which is bound to cause a lot of criticism (see e.g. below for NGO reactions). On this judgment, it is indeed difficult to fully agree with the Court. Even if the principles seem reasonable, their application is less so. The Court held that the applicant's condition was stable and that there might be help from the applicant's family. On the availability of adequate treatment it cited a WHO report on Uganda, which indicated that antiretroviral medication was available in Uganda, "although through lack of resources it is received only by half of those in need" (my emphasis). As the Court indicates all three criteria always involve some amount of "speculation" (para. 50). One may only wonder why the Court then did not test in more detail whether help from relatives and actual access to the medicines would actually be available. Appearantly, the "very exceptional circumstances" only exist if they are exceptional on all three counts and not only on some of them. See also the joint dissenting opinion of judges Tulkens, Bonello and Spielmann for a convincing critique of the Court's position (including a remark on the unwarrantedness of possible fears that any other outcome would have turned Europe into the "sick-bay" of the world!).

Disappointing to many as this case may seem, it is in line with earlier case law to a great extent. In fact, the Court has held only once in a health case context, in a case of an applicant with HIV/AIDS who would be sent back to the tiny island of St. Kitts (D. v. the United Kingdom), that Article 3 would be violated if the applicant would be expulsed. For a more elaborate overview of the Court's case law on the issue of expulsions of persons with health problems under Article 3 ECHR, see: Veelke Derckx, 'Expulsion of illegal residents (aliens) with medical problems and Article 3 of the European Convention of Human Rights', in the European Journal of Health Law vol. 13 (2006) pp. 313-319 (electronic access e.g. through Ingenta Connect).

The judgment itself can be found here and the press release here. This was one of the rare cases in which the Court held a hearing. Since last year, the Court's website features webcasts of such hearings. Click here for the webcast of the hearing in N. v. UK. The BBC and the Independent also reported on the case. NGOs in the field of health have heavily criticised the Court's judgment as a "setback for human rights". See for example this report on the website of Aidsmap.

Tuesday 27 May 2008

Separate Opinions

The possibility to write and attach separate opinions to the Court’s judgments must undoubtedly be one of the more attractive aspects for the judges in Strasbourg – an aspect which may make their ECJ colleagues somewhat envious, for that matter! But possibly even bigger is their appeal to observers of the Court’s work. Often the opinions, whether concurring or dissenting, offer insights in core discussion points in a judgment. Also, they may give clues about developments in the Court’s position. A famous instance is the line of ‘British’ cases on transsexuals: Rees (1986, 9532/81) – Cossey (1990, 10843/84) – Christine Goodwin (2002, 28957/95).

A full database of the Court's separate opinions has been compiled by the University of Leicester. For an interesting analysis of the correlations between a judge's background and separate opinions (including the finding that a small degree of national bias does exist), see the paper 'The Room at the Top: Separate Opinions in the Grand Chambers of the ECHR (1998-2006)' of Fred Bruinsma (Utrecht University). His material is limited to the Court's Grand Chamber judgments. Erik Voeten (Georgetown University), in his paper 'What Motivates International Judges? Evidence from the European Court of Human Rights', provides a broader analysis of why the European Court's judges vote as they vote. He argues that differences in judicial philosophies offer the strongest explanation for variations in voting patterns. In addition, he defends the intriguing view - supported by evidence - that judges from countries with low levels of judicial independence are more likely than other judges to vote against their own states. Much food for thought (or for dissent?).

Monday 26 May 2008


Welcome to this new blog on the European Convention on Human Rights (ECHR), one of the only ones (or maybe the only one?) specifically dedicated to the ECHR. The blog is intended as a portal to information on the European Court of Human Rights and its judgments and decisions. Thus, it includes a RSS feed on the press releases of the Strasbourg Court (upper right side) and a number of links to relevant articles, blogs and other resources. I will try to include recent developments on the ECHR, including new cases and papers on European human rights.

Considering the enormous amount of judgments which the Court issues each year, it is impossible to report on everything. Thus this blog will be more modest and will aim to cover at least the most important developments, as far as possible. Do not hesitate to inform me of gaps or shortcomings in that respect!

Since this is in many ways a project under development (as some sort of "living instrument" as the Court would phrase it), all comments, suggestions and contributions are very welcome!