Friday 14 January 2011

Two New Electronic Articles on the ECHR

Recently, two ECHR-related articles have been published on SSRN. First, this is 'Nordic Constitutionalism and European Human Rights - Mixing Oil and Water?', authored by Jaakko Husa of the Law Faculty of the University of Lapland. This is the abstract:

This article seeks to make sense of why the ECtHR’s interpretation techniques are problematic from the point of view of Nordic legal culture and especially from the viewpoint of Nordic sovereignty of people flavoured version of constitutionalism. Especially, the dynamic and evolutive approach used in interpretation by the ECtHR is looked at in more detail; it is likely the most controversial interpretation technique of the Court, which causes troubles with national understandings of constitutionalism. The aim of this article is to shed light on the nature of the collision between international and national versions of constitutionalism in the sphere of human constitutional rights. Chapter 1 explains the starting point and aims, chapter 2 deals with the Nordic legal culture in general and specifically Nordic understanding of constitutionalism, and chapter 3 explains the position of the ECHR and the ECtHR and then goes on to define the dynamic and evolutive interpretation used by the Court. Chapter 4 takes few illustrative example cases and with the help of these tries to show how dynamic and evolutive interpretation actually takes shape in illustrative cases which have Nordic connections. Last chapter (5.) concludes that there are difficulties with judicial activism by the ECtHR and the way constitutionalism is conceived in Nordic legal mentality.
Second, Mel Cousins of Glasgow Caledonian University has posted 'The European Convention on Human Rights, Non-Discrimination and Social Security: Great Scope, Little Depth?'. This is the abstract:

This article examines the non-discrimination provisions of the European Convention on Human Rights in relation to social security law. There is a now a broad power of review under the ECHR as most social security payments fall within the scope of the Convention. There is also a more flexible approach to the grounds upon which discrimination can be challenged under Article 14. However, it is suggested that the European courts may need to adopt a more nuanced (or proportionate) approach to equality review rather than a binary approach.