Thursday 21 January 2021

New ECHR Readings

Please find below a new selection of academic publications from the last few months, related to the European Court of Human Rights, the Convention and other directly related topics:·    

The latest volume of the European Yearbook on Human Rights (Vol. 2020) is out, with special attention to the rights of the child. The content relating to the ECHR is the following:

* Linos-Alexander Sicilianos, ‘The European Convention on Human Rights at 70: The Dynamic of a Unique International Instrument’, p. 3

* Lorenzo Acconciamessa, ‘Bringing the Child’s Procedural Rights before the ECtHR through Interpretative Tools: Access to Justice, Participation and Representation’, p. 49

* Lydia Bracken and Conor O’Mahony, ‘The Child’s Right to Family Life: Shifting Sands and Social Science’, p. 79

* Evelyn Merckx, ‘The ECtHR on Parental Authority and Contact aft er Separation: Towards a More Child-Centred Perspective?’, p. 97

* Anette Faye Jacobsen, ‘Principles and Politics in Compulsory Adoption Cases in the European Court of Human Rights: Th e Right Balancing of Rights’, p. 135

* Rebecca Thorburn Stern, ‘The Image of the Vulnerable Migrant Child in Recent ECtHR and CRC Committee Case Law’, p. 233

* Marie Spinoy and Kurt Willems, ‘Inclusive Education in Strasbourg: Still Learning?’, p. 281

* Stefan Kieber, ‘The Jurisprudence of the European Court of Human Rights in 2019’, p. 593.

Other publications:

* Ergul Celiksoy, ‘‘UK exceptionalism’ in the ECtHR’s jurisprudence on irreducible life sentences’, International Journal of Human Rights (Vol. 24, no. 10, 2020): 

'The ECtHR’s judgment in Hutchinson v. the United Kingdom brought into question whether the ECtHR was weakening the general principles on irreducible life sentences, and specifically, whether it was applying them more leniently to the United Kingdom (UK). Recent judgments delivered in Matiošaitis and Others v. Lithuania and Petukhov v. Ukraine (No. 2) have demonstrated that the ECtHR has aligned itself with its pre-Hutchinson jurisprudence by adopting a strict scrutiny of the review mechanisms of life sentences in Lithuania and Ukraine. Although this suggests that the general principles were not watered down, the concern about UK exceptionalism in the ECtHR’s jurisprudence on irreducible life sentences has been raised. This paper therefore examines to what extent the ECtHR carried out a softer application of the relevant principles pertaining to an effective and meaningful review mechanism as regards whole life sentences in Hutchinson and discusses why this suggests a UK exceptionalism in the ECtHR’s jurisprudence on irreducible life sentences. In contrasting the ECtHR’s judgments in the cases of Hutchinson, Matiošaitis and Others and Petukhov, this paper argues that with the suspicion of the application of the Convention with ‘double standards’, the ECtHR’s vulnerability to strong political responses risks damaging its legitimacy.'

* Wayne Sandholtz, ‘The ECtHR, transregional dialogues and global constitutionalism’, Global Constitutionalismvol. 9, no. 3 (2020), pp. 543-551:

'This article is a preliminary attempt to evaluate signs of movement toward global rights review. A multi-level charter of rights exists in the network of international and regional human rights treaties and in national constitutions. An incipient structure of global rights review exists in the form of the regional human rights courts, which see themselves as trustees of the larger global human rights system. Judicial dialogue among the regional courts allows for informal, decentralized coordination among them. The European Court of Human Rights serves as a point of reference for the African and Inter-American systems, though these also cite each other. Transregional judicial dialogue establishes a rudimentary, informal and decentralized mechanism of coordination among bodies that exercise a review function in the multi-level system of international human rights.'

* Garrett Wallace Brown & Mads Andenas, ‘The European Convention of Human Rights as a Kantian cosmopolitan legal order’, Global Constitutionalism, vol. 9, no. 3 (2020) pp. 490-505:

'The authors argue that there has been the emergence of, and increasing prospects for, a cosmopolitan legal order based on the Convention. This symposium aims to engage with, and to better explore, the theoretical implications and practical legal ramifications of their argument. In doing so, this first article acts as a general introduction to the symposium, laying out the major arguments of the book as well as arguments presented by the symposium contributors. Moving beyond the summative, this introduction also situates A Cosmopolitan Legal Oder within broader debates in global constitutionalism, while defending its use of Kant’s cosmopolitan theory. Lastly, it explores some of the key implications and challenges that arise from the symposium itself, rooting these insights within the current context of anti-globalism, nationalism, populism and neo-sovereigntism, and the corresponding necessity for a more transitional and pluralistic response as offered in A Cosmopolitan Legal Order.'

* Øyvind Stiansen & Erik Voeten, ‘Backlash and Judicial Restraint: Evidence from the European Court of Human Rights’, International Studies Quarterly, vol. 64, no. 4 (2020), pp. 770–784:
'How does backlash from consolidated democracies affect the behavior of liberal international institutions? We argue that liberal international institutions have incentives to appease their democratic critics. Liberal institutions rely on democratic support for their continued effectiveness and can accommodate democratic critics at a lower legitimacy cost than non-democratic challengers. We examine this theory in the context of the European Court of Human Rights using a new dataset of rulings until 2019 and a coding of government positions during multiple reform conferences. Combining matching and a difference-in-differences design, we find strong evidence that the Court exercises restraint towards consolidated democracies that have criticized the Court in multilateral reform conferences by rendering fewer violation judgments against these states. We find some evidence that governments have also recently appointed more deferential judges. The findings suggest that backlash can affect liberal international institutions even without membership exit.'

* Stuart Wallace, ‘Derogations from the European Convention on Human Rights: The Case for Reform’, Human Rights Law Review, vol. 20, no. 4 (2020), pp. 769–796:

'This article examines State practice on derogations from human rights protection during states of emergency under Article 15 of the European Convention on Human Rights. The article presents statistical data on the use of derogations, offers analysis of the data and practice and advances a series of reform proposals. It is argued that Article 15 is being misused by States to derogate for protracted periods of time for entrenched emergencies and that emergency measures are remaining in place after declared emergencies have ended. Equally, States are not derogating in circumstances where they should for military operations, particularly extra-territorial military operations. It is argued that the European Court of Human Rights has been deferential in enforcing Article 15 and that reform is needed to address the problems identified. Reforms should include review procedures for emergency measures, enhanced procedures for notifying derogations and an amendment to facilitate extra-territorial derogations.'

* Milka Sormunen, ‘Understanding the Best Interests of the Child as a Procedural Obligation: The Example of the European Court of Human Rights’, Human Rights Law Review, vol. 20, no. 4 (2020), pp. 745–768:

'According to Article 3(1) of the United Nations Convention on the Rights of the Child, the best interests of the child have to be a primary consideration in all cases concerning children. The Committee on the Rights of the Child understands Article 3(1) as a ‘threefold concept’: a substantive right, an interpretive principle and a rule of procedure. This article argues that the provision is best understood as a procedural obligation. Understanding Article 3(1) as a procedural obligation remedies key problems that originate from interpreting the provision as a substantive right. A significant strength of the procedural approach is that it can be consistently applied in different case groups. This article illustrates the argument with the case law of the European Court of Human Rights related to children, in which the article detects three layers of a procedural approach to the best interests of the child.'

Carola Lingaas, ‘Domestic Violence in Child Protection Cases before the European Court of Human Rights: Double Victimisation of Abused Parents?’, Nordic Journal of Human Rights, vol. 38, no. 2 (2020), pp. 122-140.

'In a number of child protection cases, the European Court of Human Rights (ECtHR) has concluded that the child should remain in foster care or can be forcibly adopted because of the history of domestic violence between the parents, even when the abused parent has been found to be capable of child care. In the cases examined here, the ECtHR did not take into consideration the situation of the parent who experienced intimate partner violence. On the contrary, that parent's inability to leave an abusive relationship was used as an argument against reunite child and parent. This practice raises the question of whether the interpretation of the ‘best interests of the child’ principle has gone too far, at the expense of the right to family life of the abused parent who thus suffers double victimisation – as a victim of domestic violence, and as a victim of the Court’s jurisprudence that accepts the severance of family ties.'

* Eduardo Gill-Pedro, ‘Proportionality and the Human Rights of Companies Under the ECHR – Whose Interests are at Stake?’, Nordic Journal of International Lawvol. 89, nos. 3-4 (2020), pp. 327–342:

'This article considers whose interests may be at stake when a company claims its human rights under the European Convention on Human Rights (echr). In order to do that, the article will first investigate whether it makes sense to conceive of companies as persons capable of having their own interests. It finds that it is possible to do so. The article proceeds to analyse the case law of the European Court of Human Rights (ECtHR) in respect of claims regarding their companies’ right to property, free expression and respect for home, considering whether, when the Court assesses the proportionality of the alleged interference, it is the interests of the company claiming the rights that are at stake. The article concludes it is possible to understand the case law of the court as not necessarily placing the interests of the company in the balance when assessing the proportionality of interferences with the Convention rights of companies. The article suggests that such an understanding is normatively desirable if we consider human rights as instruments for the protection of human beings.'

And, finally, the December 2020 issue of the French-language Revue Québécoise de Droit International: was entirely dedicated to the European Convention of Human Rights at the occasion of the Convention's 70th anniversary.