Friday 21 April 2023

New ECHR Readings

Please find below our selection of recent publications, both articles and book chapters, related to the European Convention on Human Rights and its Court:

Ivana Jelić, ‘Feminist Justice and the European Court of Human Rights’ in Ivana Krstić, Marco Evola, Maria Isabel Ribes Moreno (eds.), Legal Issues of International Law from a Gender Perspective (Springer International Publishing 2023), pp. 35-53:
‘Gender equality is clearly one of the pillar principles of the European Convention on Human Rights. Protection of women’s rights can be treated through an individual right, dealing with its substantial and procedural limb (ex. sex discrimination cases), or as an (aggravated) aspect or an attribute of a violation of a right enshrined by the Convention (ex. gender equality in connection with rights to freedom of expression or religion). Despite its principled position and having in mind the present state of jurisprudence of the Strasbourg Court (ECtHR), it could be concluded that feminist justice is still underdeveloped in comparison with the growing need for the protection of women’s rights, insisting on personal integrity.
Observing from a broader perspective, the ECtHR’s case law regarding feminist justice can be categorized into three clusters: (1) cases relating to achieving formal equality between men and women and prohibiting direct gender discrimination, focusing on the idea of achieving “sameness with men” (jurisprudence under Article 14); (2) cases relating to issues that may, in theory, affect both men and women, but in reality, disproportionately affect women and require special (additional) protection, such as domestic violence and trafficking; and (3) cases relating to issues that are specific to women’s rights, such as violence against women and reproductive rights.
The Court has gradually widened its approach concerning the protection of women’s rights, giving rise to a ‘living instrument doctrine’ by interpreting the Convention “in the light of present-day conditions”. This approach of evaluative interpretation of the Convention is necessary in order to address actual challenges of violation of human rights of women and girls, which were not envisaged in the text of the Convention 70 years ago.
The author tends to make an analysis on how contemporary international law deals with feminist justice, with a special emphasis on the most important ECtHR cases. The contribution should give an analytical overview through the prism of direct and indirect gender discrimination, having in mind the mentioned three clusters, with an emphasis on the recent case-law.’
* Janneke Gerards, Elif Erken and Claire Loven, 'The Expanding Methodological Toolbox of the ECHR Scholar', Law and Method (February 2023):
‘Scholars who set out to study the European Convention on Human Rights (ECHR or Convention) system will find an abundance in research methods to choose from. In the early years of the European Court of Human Rights (ECtHR or Court), the methodological toolbox of the ECHR scholar largely consisted of qualitative and classical-doctrinal methods to study the Court’s case law, as well as historical, philosophical and theoretical studies to contextualize the ECHR system. Today, these ‘traditional’ methods not only have evolved to reflect the enormous increase of, and scholarly interest in, the Court’s case law but have also been complemented by empirical qualitative and quantitative, statistical and machine learning research methods. This contribution traces these major developments in the methods applied to studying the Court. By providing a comprehensive discussion of the different approaches, including their application, value and potential weaknesses, this contribution helps scholars understand, use and learn from the rich methodological toolbox of the ECHR scholar.’
* Helga Molbæk-Steensig, ‘Subsidiarity Does Not Win Cases: A Mixed Methods Study of the Relationship between Margin of Appreciation Language and Deference at the European Court of Human Rights’, Leiden Journal of International Law, Vol. 36, Issue  1 (2023), pp. 83-107:
‘In August 2021, Protocol 15 inserted the doctrine of the margin of appreciation into the preamble of the European Convention of Human Rights, presumably cementing what President Spano has referred to as the ‘Age of Subsidiarity’, in which the European Court of Human Rights applies the margin of appreciation more often and increases deference to state parties. This insertion was done on the behest of the High Contracting Parties as part of the Interlaken reform process, and there is already a strong narrative in certain member states and parts of the scholarly literature that this focus has prompted the Court to increase the usage of the margin of appreciation and therefore the deference to states, judging more frequently in their favour. This article hypothesizes, however, that the increased usage of the margin of appreciation language which has been taken as proof for this narrative, might not, in fact, indicate higher levels of deference. Rather, the language of the margin of appreciation could be the result of usage by other actors or a marker of complexity for so-called ‘hard cases’. To investigate this relationship, the article applies a mixed legal-doctrinal and quantitative methodology to analyse who in the case law invokes the doctrine, what their purpose is for doing so, and what adjudicative consequences follow. It finds that usage of the margin-language topped well before the Interlaken process began, that governments are not the most frequent invokers and that, statistically speaking, states are no more likely to win margin-cases than other cases.’

* Andreas-Nikolaos Koukoulis, ‘The exercise of parental care of children born out of wedlock and the ECtHR: Reflections on Paparrigopoulos v. Greece’, Maastricht Journal of European and Comparative Law, Vol. 29, Issue 6 ( 2023):
‘This article analyses the recent judgment of the European Court of Human Rights in Paparrigopoulos v. Greece and examines its implications for cross-border surrogacy in Europe. This judgment is significant because it sets new standards in terms of the concept of discrimination between parents under Article 14 of the European Convention on Human Rights read in conjunction with Article 8 (right to respect for private and family life). The Court held that there was no reasonable relationship of proportionality between the preclusion of the applicant's exercise of parental responsibility and the aim pursued, which had been to protect the best interests of children born out of wedlock. Finally, this case note critiques the Court's findings and examines its likely impact on the parental care of the child, who was born and remains unmarried by his parents.’

* Daniela Alaattinoğlu, ‘Intersex interventions as human rights violations: The European Court of Human Rights sets out guiding principles in M v France’, Modern Law Review (14 February 2023):
‘In 2022, the European Court of Human Rights, for the first time, signalled that it regards non-consensual interventions on intersex individuals which are not motivated by medical necessity as human rights violations. This case note argues that the admissibility decision in question, M v France, albeit ruled inadmissible on procedural grounds, constitutes an important step towards binding supranational human rights standards, particularly regarding torture and ill-treatment. While M v France could inspire intersex people to further their claims as strategic litigation, the note reflects on the central questions invoked by the Court's decision and some of the legal hurdles that intersex people may face when approaching courts with claims for recognition and redress.’