Thursday 19 October 2017

New ECHR Readings

Please find below another batch of new academic writings about the European Convention and the European Court:

'In her manuscript Elisa Ravasi examines how the ECtHR responds to the growing challenges of overlapping legal systems. She focuses, in particular, on the relationship between the ECHR and EU law. First, she systematically analyses 10 years of ECtHR jurisprudence on the principle of equivalent protection and develops an innovative analysis scheme for its application. Afterwards, she examines the equivalency of the human rights protection provided by the ECJ in light of the minimum standards of the ECHR in three specific fields (naming law, ne bis in idem and equality of arms). Finally, she considers whether the presumption of equivalent protection of the ECtHR in favour of the EU is still justified.'

* Anja Seibert-Fohr, 'The Effect of Subsequent Practice on the European Convention on Human Rights', in: Anne van Aaken & Iulia Motoc eds., The ECHR and General International Law,(forthcoming):

'Under which conditions and to what extent can subsequent State practice legitimately influence the interpretation or even modify international treaties? This issue of general international law has been on the European Court of Human Rights’ agenda for quite some time and is ongoing as evidenced in Hassan v. the United Kingdom. While State practice has traditionally played a role in the interpretation of the Convention, the Court’s methodology to determine under what circumstance and to what extent State practice is able to affect the scope and meaning of the Convention remains uncertain.

This article develops a general theoretical framework, which rationalizes the normative value of subsequent practice in the context of human rights treaty interpretation and sets out its relevant standards. Drawing from the ILC’s recent work on ‘Subsequent agreements and subsequent practice in relation to interpretation of treaties’, the author argues that the Vienna Rules provide a matrix. This perimeter allows sufficient flexibility to accommodate the specific nature of human rights law. The author proposes a normative scale, which can guide the Court in enhancing its methodological consistency. Pursuant to this scale, exigencies for the density of subsequent practice and the degree of acceptance pursuant to Article 38 (1)(b) VCLT vary depending on the nature of the rule and the claimed normative value of State practice. Once State practice meets the required standard, it can sustain the legitimacy of treaty interpretation. On this basis, subsequent practice can serve as a catalyst for the advancement of human rights.'

* Kristen Barnes, 'Adjudicating Equality: Antidiscrimination Education Jurisprudence in the European Court of Human Rights', Harvard Journal on Racial & Ethnic Justice, Vol. 33, 2017: 

'This Article examines the state of antidiscrimination education jurisprudence in Europe by analyzing several prominent cases brought before the European Court of Human Rights. In those cases, the applicants alleged that they were discriminated against in the exercise of their right to education based upon their ethnicity in violation of the European Convention on Human Rights. Novel aspects of the cases include the Court’s recognition of the theory of indirect discrimination and its imposition of positive obligations. The cases examined have a broader application that has yet to be explored at the higher education level and by other racial minority groups. Focusing on the legal principles of proportionality, the margin of appreciation, and consensus, this Article analyzes the Court’s reasoning and delineates its framework for cases of this type. The paper offers insights concerning the Court’s theory of racial discrimination, highlights issues arising out of the theory and its application, and concludes with recommendations for the Court’s future trajectory in this realm.'