Monday 31 March 2014

New ECHR Publications

Please find below a new update of articles and books related to the European Convention and the European Court of Human Rights. Enjoy reading!
* The newest issue of the Heidelberg Journal of International Law (Zeitschrift für ausländisches öffentliches Recht and Völkerrecht), vol. 74, no. 1 (2014) includes: Jannika Jahn, ‘Ruling (in)directly through individual measures?: Effect and legitimacy of the ECtHR's New Remedial Power’.
The Zeitschrift für Europarechtliche Studien, vol. 17 (2014) includes two articles on the ECHR:
* David Milner, ‘Protocols no. 15 and 16 to the European Convention on Human Rights in the context of the perennial process of reform: a long and winding road’, pp. 19-51:
Two new protocols to the European Convention on Human Rights were opened for signature in 2013. These were the direct results of drafting work initiated following the 2012 Brighton High-level Conference on the reform of the European Court of Human Rights. The discussions that led to them, however, had begun much earlier. Most obviously, the roots lay in the Report of the Group of Wise Persons, commissioned at the 2005 Warsaw Summit in the aftermath of the adoption of Protocol no. 14. In fact, the debates underlying both protocols form part of a continuum stretching back before Protocol no. 11, which created the current basic structure of the control mechanism. Long-standing tensions manifested themselves during negotiation and drafting and remained incompletely reconciled at the conclusion of the process. This article traces the background and history of Protocols no. 15 and 16, before continuing with a detailed description of the drafting process and the content of the final provisions, and then concluding with consideration of their overall significance in the on-going process of “Court reform”.
* Lara Wolf, 'Die Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte zu Flüchtlingen am Beispiel der Fälle “Hirsi Jamaa u.a. gegen Italien” sowie “M.S.S. gegen Belgien und Griechenland”', pp. 53-78:
Wie geht Europa mit Flüchtlingen um, die den Weg in die Mitgliedstaaten suchen? Diese Frage stellt sich seit Jahren mit unveränderter Brisanz, da die Antwort auf sie zumeist in einem Spannungsfeld liegt: Zwischen den Werten, zu denen sich Europa auch unter der EMRK verpflichtet, und den politischen Realitäten im Umgang mit jenen Flüchtlingen. Eine Antwort gibt der EGMR in seinen Entscheidungen M.S.S. gegen Belgien und Griechenland und Hirsi Jamaa u.a. gegen Italien von 2011 und 2012. Nach einer Darstellung der Urteile wird anhand der vier wichtigsten gemeinsamen Grundsätze dargelegt, dass sich eine gemeinsame Rechtsprechungslinie in beiden Urteilen klar erkennen lässt: So stärken beide das Non-Refoulement-Prinzip, unterstellen das geltende Asylsystem Europas einem menschenrechtlichen Vorbehalt und haben Implikationen für das Verfahrensrecht vor dem EGMR. Im Ergebnis sind M.S.S. und Hirsi beispielhaft für die Rechtsprechung des EGMR zum Flüchtlingsrecht sowie dafür, wie internationale Menschenrechte einen weiteren Schutz als internationales Flüchtlingsrecht bieten. Vor diesem Hintergrund wird auch ein kritischer Blick auf die jüngsten politischen Maßnahmen im Rahmen des Europäischen Asylsystems geworfen

* A group of four editors - Kanstantsin Dzehtsiarou, Theodore Konstadinides, Tobias Lock, Noreen O'Meara - have published 'Human Rights Law in Europe. The Influence,Overlaps and Contradictions of the EU and the ECHR' with Routledge. This is the abstract:
This book provides analysis and critique of the dual protection of human rights in Europe by assessing the developing legal relationship between the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR). The book offers a comprehensive consideration of the institutional framework, adjudicatory approaches, and the protection of material rights within the law of the European Union and the European Convention on Human Rights (ECHR). It particularly explores the involvement and participation of stakeholders in the functioning of the EU and the ECtHR, and asks how well the new legal model of ‘the EU under the ECtHR’ compares to current EU law, the ECHR and general international law.
Including contributions from leading scholars in the field, each chapter sets out specific case-studies that illustrate the tensions and synergies emergent from the EU-ECHR relationship. In so doing, the book highlights the overlap and dialectic between Europe’s two primary international courts. The book will be of great interest to students and researchers of European Law and Human Rights.
Finally, the newest issue of the Inter-American and European Human Rights Journal, vol. 6, no. 1 (20014) includes:   
* E. Webster,  ‘Medical-Related Expulsion and Interpretation of Article 3 of the European Convention on Human Rights’
* N. Van Belle, ‘The Judicial Protection of Human Rights in Europe after the Accession of the European Union to the European Convention on Human Rights’

Friday 28 March 2014

Liber Amicorum Leo Zwaak - ECHR Contributions

The Liber Amicorum for my dear colleague Leo Zwaak has just been published. Many will know Leo as one of the great experts on the ECHR who has taught generations of students and practitioners about the European Convention system. It may therefore not come as a surprise that the book, entitled 'The Realisation of Human Rights: When Theory Meets Practice. Studies in Honour of Leo Zwaak', includes contributions by a wide variety of scholars, from many different fields of law and from various generations of scholarship. I was privileged to be included in this volume with a contribution on the lack of a significant disadvantage criterion in the ECHR (See also the link in the sidebar of this blog to that article). Here is an overview of the ECHR-related articles in the book (full table of contents here):
* Michael O’Boyle, ‘The Role of Dialogue in the Relationship Between the European Court of Human Rights and National Courts’
* Antoine Buyse, ‘Significantly Insignificant? The Life in the Margins of the Admissibility Criterion in Article 35(3)(b) European Convention on Human Rights’
* Fried van Hoof, ‘The Stubbornness of the European Court of Human Rights’ Margin of Appreciation Doctrine’
* Egbert Myjer, ‘Are Judges of the European Court of Human Rights so Qualified that they are in No Need of Initial and In-Service Training? A ‘Straatsburgse Myj/mering’ (Myjer’s Musings from Strasbourg) for Leo Zwaak’

Monday 24 March 2014

Ukraine - Russia Inter-State Application Guest Post

It is my pleasure to present a guest post by Kanstantsin Dzehtsiarou of the University of Surrey on the inter-state application lodged by Ukraine against Russia earlier this month and, more specifically, on the interim measures the Court indicated as a reaction to the rapidly unfolding events. The President of the Court called "upon both Contracting Parties concerned to refrain from taking any measures, in particular military actions, which might entail breaches of the Convention rights of the civilian population, including putting their life and health at risk, and to comply with their engagements under the Convention." For more, see also the comments of professor Philip Leach on EJIL Talk! Here are Dr Dzehtsiariou's guest comments:

The Effectiveness of the European Court of Human Rights in Cases of War.
 Dr Kanstantsin Dzehtsiarou 

On 13 March 2014, the Ukrainian government brought an inter-state application before the European Court of Human Rights (ECtHR) against the Russian Federation concerning military threats allegedly posed by Russian troops in the Crimea, which is an autonomous region within the Ukraine. The alleged Russian presence in the Crimea could result in military confrontation in the light of the partial mobilisation of the armed forces of the Ukraine.

In lodging its application, the Ukraine has also applied to the Court for interim measures, which have been granted by the Court due to the fact that the current situation in Ukraine gives rise to a continuing risk of serious violations of the Convention. Pursuant to these interim measures, both parties are ordered to refrain from activities that could threaten the lives and health of the Ukrainian civilian population, which includes military actions. Although the lodging of this complaint and the request for interim measures are logical steps for the new Ukrainian government to take in the circumstances, it is not clear what the effect of these steps will be. Arguably, the ECtHR could not reject the request to grant interim measures, as similar requests had been granted in the past (see, Georgia v Russia II. More on that case here). The key question, however, is whether the ECHR is institutionally capable of preventing a war and ensuring the effectiveness of such interim measures.

To answer this question comprehensively, one would need to examine the rich jurisprudence of the Court dealing with military occupations. This modest blog post does not intend to do that. It will only provide an overview of what the Court can and cannot do. Moreover, I will argue that if the Court becomes too ambitious, it might damage its reputation and legitimacy.

In the late 1940’s, immediately after the Second World War, the European Convention on Human Rights was drafted with three main purposes in mind: 1) preventing gross violations of human rights; 2) stopping Contracting Parties from sliding to totalitarism; and 3) preventing new wars. It is doubtful, however, that the Court is capable of fulfilling these purposes. Having said that, the Court is able to do something else – namely, offer post factum redress to at least some individual victims of military occupations and confirm certain principles of how to deal with such violations. In Loizidou v Turkey, for example, the Court found a violation of the applicant's right to access her property on the territory of Northern Cyprus occupied by Turkey. In Ilaşcu and others v Russia and Moldova, the ECtHR has found that there was a breach of the Convention in Transnistria occupied by the Russian troops. The Court has thus been able to provide relief to individuals whose human rights have been infringed and has held occupying States to account in ensuring compliance with human rights law on the occupied territories.

Unfortunately, the Court is unable to prevent war. Moreover, major attempts to do so can lead to disappointment and despair on the part of the stakeholders. Interim measures is one of very few instruments available to the Court that are capable of affecting on ongoing or developing situation. However, it appears that granting interim measures in a pre-war situation in an inter-state complaint might have very little impact. It is unlikely that a government will change its mind to occupy a particular territory because the ECtHR has ordered it not to do so.

This does not mean that interim measures of the ECtHR in individual cases are always honoured. In cases involving the UK, France, Slovakia and Russia, among others, the Court has ordered Contracting Parties not to extradite an applicant who is subsequently extradited nevertheless. These situations, however, led to powerful criticism by the Court and the near-automatic finding of a violation in such cases. It seems that the Court does realise that violations of interim measures undermine its authority, credibility and reputation. This is the reason why the Court seeks to use interim measures only in cases where they can realistically be complied with. However, this is not the case in the pre-war scenarios. In 2008, Georgia also brought a complaint against Russia to the ECtHR and requested interim measures in relation to military action in South Ossetia and Abkhazia (see Georgia v Russia II). The Georgian authorities subsequently argued that these interim measures had not been complied with. It seems that the Russian authorities have a track record of failure to comply with interim measures before and during military actions. Bearing that in mind, one might wonder why the Court continues to grant interim measures and thus endanger its credibility. If the Court wishes to send a clear message to the Russian government, it will be one of hundreds of messages of that kind and I am sure that the Russian authorities know very well how the ECtHR would react to its actions. Since the measures are directed to both parties, it might seem that the measures are mostly directed to stop Ukraine from trying to protect its sovereign territory through military means. While the Court’s request talks about civilian population it seems that such interim measures add to the scope of international humanitarian law and narrows the scope of opportunities for Ukraine to protect its territory by military means.

Moreover, interim measures are not mentioned in the Convention and they were declared binding by the ECtHR in its case law (see, Mamatkulov and Askarov v Turkey). Therefore, the State's compliance is crucial for considering this particular aspect of the court-made law as legitimate. Interim measures do not enjoy the same level of legitimacy as the Convention which was ratified by the Contracting Parties. It is also doubtful whether interim measures are easily transferable to the cases of inter-state applications. Interim measures were developed in individual cases and were designed to prevent immediate and irreparable damage to the applicants; for example, the continuation of torture, or preventing extradition to the state where he or she could be subjected to torture. In inter-state complaints, the measures are formulated in general terms and compliance becomes a disputed issue. Moreover, the respondent state might intentionally or accidentally misunderstand what is expected from it, rendering the effectiveness of such interim measures almost negligible and this in turn damaging the reputation of the Court.

The lack of effectiveness in these circumstances is not a unique attribute of the Strasbourg Court. It seems that no court can effectively prevent a war. There might be historical examples to the contrary but they are clearly exceptions. The ECtHR can only be effective if the Contracting Parties value law. The Court does not have an apparatus of implementing its decisions of granting of interim measures. The Contracting Parties should effectively volunteer to fulfil obligations imposed by the Court. Any aggressive war is a gross violation of international law which shows that this state has no respect for law and it should not come as a surprise that the same state would not comply and honour decisions of the Court dealing with such situations.

It is unrealistic to burden the Court with such an unattainable task as the prevention of war. War and peace are issues ordinarily decided by the executives and only later reconceptualised and checked by courts. The ineffectiveness of the Court's prior involvement can damage its credibility and negatively affect its activities through which it has a chance to succeed, namely, post factum redress of violations flowing from the military occupation.

Tuesday 18 March 2014

Conference on Long-Term Future of European Court

On 7 and 8 April the University of Oslo is organising a conference entitled 'The long-term future of the European Court of Human Rights'. Participation is by invitation only, but on the conference information page one can find contact info to show interest in participating. The full programme can be found here. This is the conference idea:

* What are the future challenges to the enjoyment of the rights and freedom guaranteed by the Convention?
* How can the Court best fulfill its twin role of acting as a safeguard for individuals and authoritatively interpreting the Convention?

The Oslo Conference 7 and 8 April 2014, arranged by the MultiRights project and the PluriCourts centre of excellence at Oslo University, under the auspices of the Council of Europe, intends to inspire and facilitate this task, through a dialogue between scholars, judges and governmental experts.

Wednesday 12 March 2014

Speech of Court President Spielmann

Recently, the President of the European Court of Human Rights, Dean Spielmann, held a speech in the Frauenkirche in Dresden, Germany. The speech, entitled 'Menschenrechte in Europa - Beiwerk oder Basis?' is now available on the Court's website. The speech, in German, goes into the significance of the European Convention for peace in Europe. Specifically, the President - by way of examples from the Court's case-law - went into the importance of the ECHR in transitions towards the rule of law, the protection and consolidation of democracy, and even in situations of armed conflict within which the Strasbourg system's practical effect may be less direct in the short run, it still has protective and preventive functions. Secondly, the President also shortly went into some of the criticisms towards the Court and admonished not to lose sight of the bigger picture. Thirdly, he pleaded for ongoing dialogue with the various branches of national government. Human rights protection, was the overarching message, should never be just an accessory but rather a basis for peace and democracy.

Monday 10 March 2014

New ECHR Readings

After a wonderful conference in snowy Iceland, I am back in Utrecht with an update of relevant new ECHR-related literature. The newest few issues of the European Human Rights Law Review include a number of articles on the ECHR. In no. 6 of 2013:

* J. Polakiewicz, 'EU law and the ECHR: will the European Union's accession square the circle?'', pp. 592-605.
* M. Rogan, 'Prisoners and "other status" under Article 14 of the European Convention on Human Rights', by pp. 615-623.
And in no. 1 of 2014:
* S. Skinner, 'Deference, proportionality and the margin of appreciation in lethal force case law under Article 2 ECHR', pp. 32-38.
The Statute Law Review, vol. 35, no. 1 (2014) includes: F. de Londras, 'Declarations of incompatibility under the ECHR Act 2003: a workable transplant?' pp. 50-65.
And, maybe an unexpected outlet, the International journal for the semiotics of law, vol. 26, no. 4 (2013) features: J. Brannan, ‘Coming to terms with the supranational: translating for the European Court of Human Rights’, pp. 909-925.
The Nordic Journal of International Law, vol. 83, no. 1 (2014) includes: A. Willems, 'The European Court of Human Rights on the UN individual counter-terrorist sanctions regime: safeguarding Convention rights and harmonising conflicting norms in Nada v. Switzerland', pp. 39–60)
The Oxford Journal of Law and Religion, vol. 3, no. 1 (2014): T. Moustafa, ‘Judging in God’s name: state power, secularism, and the politics of Islamic law in Malaysia’, pp. 152-167.
The Review of Central and East European law, vol. 38, no. 3-4 (2013): F. van der Vet,  Transitional justice in Chechnya: NGO political advocacy for implementing Chechen judgments of the European Court of Human Rights, pp. 363–388.
The Oxford Journal of Legal Studies, vol. 33, no. 4 (2013) features: A. Sanders,’ Does Article 6 of the European Convention on Human Rights apply to disciplinary procedures in the workplace?’, pp. 791-819.
* D. Golubovic , ‘Freedom of association in the case law of the European Court of Human Rights’, vol. 17, no. 7-8 (2013) pp. 758-771.
* I. Turner, ‘Positive obligations and Article 4 of the European Convention on Human Rights: a defence of the UK's Human Rights Act 1998’, vol. 18, no. 1 (2014) pp. 94-114.
Finally, Luzius Wildhaber, Arnaldur Hjartason and Stephen Donnelly, have posed on SSRN an article published in HRLJ 33 (2013) pp. 248-263, entitled 'No Consensus on Consensus' on the notion of "European Consensus" in the Court's case-law.