Sunday 24 March 2019

New Book on General Principles of the ECHR

My Utrecht University colleague and SIM fellow professor Janneke Gerards has just published her newest book General Principles of the European Convention on Human Rights with Cambridge University Press. It is available online now as an e-book and presents a reflection of her many years of meticulous study of the case-law and work of the European Court. Setting it apart from most ECHR overviews, this concise yet very nuanced work does not present the Convention as a sequence of substantive rights. Rather, it takes a cross-cutting approach by describing and analysing how the Court interprets and applies rights. It thus goes into the core interpretative principles developed by the Court, ranging from how it assess restrictions on rights to famous notions such as positive and negative obligations and the margin of appreciation. Thus, it presents a very precise and well-grounded way into the ECHR, a great device both for teaching at the advanced level as well as for research. As one of the judges of the European Court remarked, Janneke Gerards is "one of the best Court-watchers of our time" - I could not agree more; I literally know no one outside the Court who is so well-informed about the by now massive volume of its jurisprudence. Recommended! This is the abstract:

'The European Convention on Human Rights is one of the world's most important and influential human rights documents. It owes its value mainly to the European Court of Human Rights, which applies the Convention rights in individual cases. This book offers a clear insight into the concepts and principles that are key to understanding the European Convention and the Court's case-law. It explains how the Court generally approaches the many cases brought before it and which tools help it to decide on these cases, illustrated by numerous examples taken from the Court's judgements. Core issues discussed are the types of Convention rights (such as absolute rights); the structure of the Court's Convention rights review; principles and methods of interpretation (such as common ground interpretation and the use of precedent); positive and negative obligations; vertical and horizontal effect; the margin of appreciation doctrine; and requirements for the restriction of Convention rights.'

Congratulations, Janneke!

Wednesday 20 March 2019

Conference on the European Court at 60

As announced earlier through the call for papers, the University of Nottingham's human rights centre is organising its annual student human rights conference on Friday 29 March. The theme this year is 'European Court of Human Rights: 60 Years of Success?'  The full programme has now been published online (and features, amongst others, two of our Utrecht University SIM fellows, very proud of them!). Also features some great keynote speakers, including judge Eicke, Ed Bates and Nuala Mole. This is the conference abstract:

'At nearly 60 years old, the European Court of Human Rights (ECtHR) has had to respond to major political and social changes, military conflicts and financial crises. Whilst there have been many successes during the ECtHR's impressive 60 year history, critics have also pointed to a number of failures. Accordingly, the 20th Annual Student Human Rights Conference aims to critically analyse the role of the ECtHR with a view to understanding how the Court and the European Convention on Human Rights have confronted both substantive and procedural challenges.

The conference will question whether the ECtHR is still fit for purpose? What lessons have the last 60 years taught us and what more can we do to improve it? It will also address whether the rise of populism within CoE Member states has made the Court more restrained in its jurisprudence. Finally, the conference will explore whether “forgotten minorities”, such as Roma, and other vulnerable groups are adequately protected and whether the Court takes such vulnerabilities into account in its decision making.' 

Monday 11 March 2019

Articles on ECHR in Newest Issue of NQHR

The newest issue of our Netherlands Quarterly of Human Rights (NQHR), Volume 37, Issue 1, 2019, includes two articles with a focus on the European Convention:

* Pieter Cannoot, 'The pathologisation of trans* persons in the ECtHR’s case law on legal gender recognition':

'The European Court of Human Rights is the human rights monitoring body that has dealt with the largest number of cases related to gender identity and trans* persons. In this regard, it has recognised under Article 8 ECHR both a right to gender self-determination and a positive obligation for the State to adopt a procedure for legal gender recognition. However, Contracting States were given a wide margin of appreciation to set conditions for the legal recognition of a person’s actual gender identity, leading to the acceptance by the Strasbourg Court of pathologising requirements such as a diagnosis of gender dysphoria and compulsory sex reassignment surgery. This contribution analyses and conceptually explains this message of trans* pathologisation in the ECtHR’s case law. Subsequently, on a normative level, it argues that this case law cannot be upheld taking into account the international trend towards full trans* depathologisation, and the scope of the margin of appreciation that States (ought to) have in cases concerning gender identity.' 

Mathieu Leloup, 'The principle of the best interests of the child in the expulsion case law of the European Court of Human Rights: Procedural rationality as a remedy for inconsistency':

'According to Article 3 CRC, the best interests of the child should be a primary consideration in all actions concerning children. This article examines how the European Court of Human Rights applies this principle in expulsion cases that have an impact on the right to family life. A distinction is made between the cases where the expulsion measure is aimed at one of the parents and the cases where the child itself is the subject of the impugned decision. A critical examination of the available case law proves that the Court’s use of the principle is inconsistent in several areas. It is argued that the Court should adopt a procedural approach towards the principle. This would make the case law more consistent, while simultaneously increasing the children’s protection.' 

Friday 8 March 2019

New ECHR Readings

Please find below a new batch of recent academic publications on the European Convention on Human Rights and its Court: 

* Floris Tan (Leiden University), 'The Dawn of Article 18 ECHR: A Safeguard Against European Rule of Law Backsliding?', Goettingen Journal of International Law, vol. 9, issue 1 (2018):

'This article examines an underexplored avenue for the protection of the rule of law in Europe: Article 18 of the European Convention on Human Rights. This provision prohibits States from restricting the rights enshrined in the European Convention for any other purpose than provided for in the Convention. In this contribution, the author argues, based on a combination of textual, systematic and purposive interpretations of Article 18, that the provision is meant to safeguard against rule of law backsliding, in particular because governmental restrictions of human rights under false pretenses present a clear danger to the principles of legality and the supremacy of law. Such limitations of rights under the guise of legitimate purposes go against the assumption of good faith underlying the Convention, which presupposes that all States share a common goal of reinforcing human rights and the rule of law. Article 18 could therefore function as an early warning that European States are at risk of becoming an illiberal democracy or even of reverting to totalitarianism and the destruction of the rule of law. The article then goes on to assess the extent to which the European Court’s case-law reflects and realizes this aim of rule of law protection, and finds that whereas the Court’s earlier case-law left very little room for an effective application of Article 18, the November 2017 Grand Chamber judgment in Merabishvili v. Georgia has made large strides in effectuating the provision’s raison d’ĂȘtre. As the article shows, however, even under this new interpretation, challenges remain.' 

* Veronika Fikfak (Cambridge University), ‘Changing State Behaviour: Damages before the European Court of Human Rights’, European Journal of International Law, vol. 29, issue 3 (2018) pp. 1091-1125:

'Regardless of the efforts undertaken through the many reforms of the European Convention on Human Rights system, non-compliance with the judgments of the European Court of Human Rights (ECtHR) remains a major problem for the Council of Europe. This article asks how we can change state behaviour and what role, if any, could damages play in this context. First, the article focuses on how the choice of remedy affects compliance and why aggravated or punitive damages look like an ideal option to nudge states into compliance. I explore recent arguments by scholars and judges who argue that the ECtHR should actively shift its approach (or perhaps already has) to nudge state behaviour towards compliance and prevention of future violations. Based on my empirical research, I show that the current case law presents several obstacles to the introduction of such damages. Building on the economic analysis of the law and insights from behavioural sciences, I reveal how the Court’s approach fails to comply with any of the elements needed to incentivize states to change their behaviour. I finally question to what extent aggravated or punitive damages can be efficient within a system that relies on voluntary compliance.' 

* Maria Fanou (European University Institute) and Vassilis Tzevelekos (University of Liverpool), ‘The Shared Territory of the ECHR and International Investment Law’, in: Y. Radi (eds.), Research Handbook on Human Rights and Investment (Edward Elgar: 2018) pp. 93-136:

'The chapter compares international investment law (ILL) with the ECHR system of human rights protection. First, analysis identifies key differences in the systemic features of the two regimes. Although they overlap to some extent in the protection they offer to property, they differ significantly. The ECHR system is unitary; unlike IIL, it operates on the basis of one single set of instruments. Mutatis mutandis, unlike IIL arbitration, the ECtHR is a last resort court that cannot be reached unless domestic remedies have been exhausted. IIL is available to foreign investors only; in the ECHR system the applicant’s nationality is irrelevant. The ECHR system is designed to cover a wide range of human rights -not only property/investment rights. Finally, the two systems differ significantly in terms of enforcement. The second step in the analysis focuses on property protection. To draw a parallel between the ECHR and IIL, the chapter discusses first the general framework of property protection under the ECHR and gives examples from the ECtHR practice with respect to foreign direct investment (FDI). Analogies are then drawn between the ECHR and key IIL standards. The chapter identifies similarities and differences regarding expropriation (focusing on indirect expropriation, the sole effects and police powers doctrines, and the function of proportionality), FET (focusing on equity and legitimate expectations the way these are protected by both regimes) and full protection and security, which is associated with due diligence and human rights positive effect. The third step in the analysis concerns limitations to investment/property rights. Occasionally, remedying or preventing human rights violations and the protection of general interest might make it necessary that states interfere with investment rights. Proportionality is crucial in this context as a tool allowing to establish priorities and assess the lawfulness of limitations. In comparison to IIL, the ECHR regime appears to better accommodate the idea of a fair balance between individual rights and general interest. Because the ECHR covers FDI from the perspective of human rights, it does not merely treat it as rights that need to be safeguarded, but also as a goal that can be limited when activities related to its promotion lead to the breach or endangerment of other human rights. Ultimately, even when the two regimes converge or overlap, the “tone”, i.e. the way they safeguard and promote FDI differs. This is the natural consequence of their differing orientation and teleology.'  

'This book analyses the allocation of responsibility for human rights violations that occur in the context of border control or return operations coordinated by Frontex. The analysis is conducted in three parts. The first part examines the detailed roles and powers of Frontex and the states involved during joint operations, focussing on the decision-making processes and chains of command. The second and third parts develop general rules that govern the allocation of responsibility under public international law, ECHR law, and EU non-contractual liability law in order to apply them to Frontex operations. To illustrate the practical implications of the findings, the study uses four hypothetical scenarios that are based on situations that have in the past given rise to human rights concerns.

The book concludes that whilst responsibility for most human rights violations lies with the host state of an operation, it often shares this responsibility with participating states who contribute large assets as well as Frontex. However, the book also exposes how difficult it is for individuals to find a place for bringing complaints against violations of their human rights suffered at the EU's external borders. This casts doubts on whether the current legal framework offers them an effective remedy.'