Monday 28 June 2021

New ECHR Readings

Please find below a new batch of articles and other publications related to the ECHR and the Court:

* Medes Malaihollo, ‘Due Diligence in International Environmental Law and International Human Rights Law: A Comparative Legal Study of the Nationally Determined Contributions under the Paris Agreement and Positive Obligations under the European Convention on Human Rights’, Netherlands International Law Review 2021, vol. 68, no. 1, p. 121–155: 
'Due diligence is a frequently employed notion in international law, yet much is still to be explored about this concept. This article aims to contribute to an understanding of due diligence obligations in international law, which is useful as it can form the basis for a further clarification of corresponding legal rights of subjects of international law. With this purpose in mind, this article initiates the construction of a working model of due diligence in international law by exploring this notion from two perspectives: an accountability perspective and a regulatory perspective. Subsequently, this article will use this model to compare the operation of due diligence obligations in two branches of international law: international environmental law and international human rights law. In doing so, it will become clear that due diligence contains two core elements: ‘reasonableness’ and ‘good faith’. Moreover, it will become apparent that the operation of due diligence obligations in these two branches has implications for systemic issues in international law. Further research on the operation of due diligence obligations in other branches of international law is therefore recommended.' 

* Veronika Fikfak, ‘Friendly Settlement Before the European Court of Human Rights’, iCourts Working Paper Series, No. 247 (forthcoming in International Journal of Constitutional Law 2022):

'Even though they represent almost 50% of all reported cases before the European Court of Human Rights, settlements of human rights violations escape scholars’ attention. Whilst victims are increasingly expected to resolve their disputes amicably, it is unclear whether applicants will be better off accepting settlement offers rather than proceeding to litigation. The paper charts the practice of friendly settlements before the Court from 1980s to today, mapping a shift in approach from seeking bilateral solutions to the proactive role of the Registry as mediator encouraging states and applicants to settle their cases to relieve the Court of the heavy workload. The study of 10,500 cases reveals how strategies adopted by the Registry – from procedural changes to how and when consent is given to settlement, to the framing of settlement offers and a close relationship with representatives of the respondent state – have favoured the most frequent violators of the Convention and sidelined the interests of the applicant. The analysis uncovers that the imbalance between parties and lack of enforcement are very much present in the ECtHR settlement system and that the active role of the Registry has reinforced, rather than redressed these concerns. The findings expose the dangers of pursuing en masse settlement in the human rights context and raise concerns about achieving long-term justice for victims of human rights violations through other means than adjudication.'

* Daniel Peat, ‘The Tyranny of Choice and the Interpretation of Standards: Why the European Court of Human Rights Uses Consensus’, 53 N.Y.U. J. Int’l L. & Pol. 381 (2021):

'Recent studies in social psychology have consistently shown that individuals are inherently averse to choice overload. Faced with complex choice sets, people are unhappier with the choices they make, more likely to regret their decision, and more prone to reverse their initial choice. This article tests the hypothesis that individuals’ innate aversion to choice overload might explain how courts and tribunals interpret standards such as fairness, necessity, and proportionality. Drawing on the findings of an empirical study of 461 judgments of the Grand Chamber of the European Court of Human Rights, the article suggests that the Court’s consensus doctrine must be understood partially as a reaction to the tyranny of choice.'

* Roberta Medda-Windischer, ‘Religious and Linguistic Minorities and the European Court of Human Rights: Between Restrictive Measures and Concerted Solutions’, Europa Ethnica 2021, Vol. 78, no. 1, pp. 36-47.

* Chris Wiersma, ‘The ‘Disobedience’ of Journalists at Public Assemblies: An Analytical Critique of the ECtHR's Case Law from a Media Freedom Perspective’, Nordic Journal of Human Rights, 2020, Vol. 38, no. 4, pp. 261-278.