Please find below a new batch of academic readings from the last few months on the European Convention on Human Rights, the European Court of Human Rights and its case-law:
* Paul Gragl, ‘Kant and Strasbourg on Mandatory Vaccinations’, European Convention on Human Rights Law Review
‘Mandatory vaccination raises important questions of human rights, especially if moral norms are given effect in legal provisions. I argue – assuming the safety and efficacy of vaccines – that we are under a moral obligation to vaccinate. Although Kant himself was hostile towards vaccinations, his Categorical Imperative exhorts us to respect the autonomy and dignity of others, and if these ‘others’ are the most vulnerable members of society who cannot be vaccinated for medical reasons, we can only protect them by vaccinating ourselves. The ECtHR (implicitly) follows this reasoning in its case law, particularly in its most recent relevant decision, in Vavřička, in which it maintained that even though mandatory vaccination interferes with certain Convention rights, this can be justified in terms of social solidarity and the weighing of interests. We consequently see that in this context, the ECHR system is very much in line with Kant’s notion of morality.’
* Liv N. Henningsen, ‘The Emerging Anti-Stereotyping Principle under Article 14 ECHR’, European Convention on Human Rights Law Review
‘Anti-stereotyping as a legal principle is emerging as a transformative device in European human rights law. In this article, the anti-stereotyping principle in the case law of the European Court of Human Rights (ECtHR) is analysed and discussed. The article employs a multidimensional approach to discrimination and theorises a transformative dimension in relation to the stereotyping cases. First, the early cases on stereotyping are analysed in relation to different theoretical concepts. Thereafter, the Morais case is analysed and discussed in relation to the broader case law. It is argued that the anti-stereotyping principle is instituted more authoritatively in this case but requires further theorisation. Moreover, the comparator assessment is less significant in relation to the anti-stereotyping principle. Finally, it is argued that the ECtHR should be more explicit about intersectionality in its discrimination assessments and avoid essentialism. Aspects of case law are critiqued in this respect.’
* Wei Gao, ‘The ECHR in action: its applicability and relevance for arbitration’, International Journal of Human Rights
‘Right to fair trial under Article 6.1 of the European Convention on Human Rights has significant bearing on arbitration. Under the jurisprudence of the European Court of Human Rights, an arbitral tribunal is a ‘tribunal’ within the meaning of Article 6.1. The rights recognised by Article 6.1 are subject to partial or full waivers in the context of arbitration, depending on its nature being voluntary or mandatory. To satisfy their Convention obligations, contracting States must exercise effective supervisory jurisdiction in arbitration matters. This may be in conflict with the practice in some contracting States of allowing private parties to contract out the rights to seek the setting aside of arbitral awards or enforce awards that have already been set aside. A survey of all Convention cases between 1955 and 2021 in this regard discloses an overall picture of how the Convention applies to arbitration matters.’
* Sarah Trotter, ‘Hope’s Relations: A Theory of the ‘Right to Hope’ in European Human Rights Law’, Human Rights Law Review, Vol. 22, Issue 2 (2022)
‘In recent years, the notion of a ‘right to hope’ has emerged in the jurisprudence of the European Court of Human Rights. This article offers an account of how this right has been constructed and of how hope is conceptualised in European human rights law. It examines the origins of the ‘right to hope’, the meaning of hope in this context and the relationship that is depicted between hope and dignity. It argues that hope is conceived of here as relational and that one way of thinking about the right to hope in this sense is as a right to recognition. This has two dimensions: one involving the recognition of the individual by others and another involving the recognition of the individual in and through law. The latter implies a certain relationship of dependency between the individual and European human rights law, with hope itself coming to be constructed as an individual responsibility.’
* Kerstin Bree Carlson and Jacob Livingston Slosser, ‘When Religion Speaks: Denmark’s Face Covering Ban and European Human Rights Law’, Nordic Journal of Human Rights, Vol. 39, 2021, Issue 4 (2022)
‘This article argues that although the challenges brought against banning face coverings in public spaces have so far been ineffective before the ECtHR, the particular situation obtaining in Denmark, the evolving case law regarding ECHR's Article 14 freedom from discrimination, and a re-examination of the distinction between protection of religious manifestation under Article 9 and expression under Article 10 could suggest a different outcome in future. This is because the ECtHR's jurisprudence regarding face covering bans does not consider the context of those bans or the possibility of non-religious claims. Specifically, this article examines two important contextual distinctions that suggest that challenges to face covering bans in countries other than France might find a different outcome: (1) the historical context of the political and constitutional debates (or lack thereof) surrounding the ban in specific countries and contemporaneous legislation and policy regarding Muslims and minorities and (2) the missing legal context that the Court could, and we argue should, use to inform the claims of veil wearers, namely, vulnerability and indirect discrimination stemming from Article 14 jurisprudence and the separate expression rights under Article 10.’
