Wednesday 10 May 2023

New ECHR Readings

Please find below a new selection of academic readings on the European Convention of Human Rights and its Court:

* Tobias Mortier, ‘Reprehensible or Legitimate Aims? A Proposal for a New Approach to Article 18 ECHR in Light of its Predominance Test’, European Convention on Human Rights Law Review (2023):

‘The European Court of Human Rights (ECtHR, Court) finds a violation of Article 18 of the European Convention on Human Rights (echr) if the respondent authorities simultaneously pursued both a legitimate and hidden aim (plurality of aims), provided that the latter was the predominant one. The Court establishes this predominance by considering the ‘nature and degree of reprehensibility’ of the hidden aim. I argue that this reprehensibility criterion has not been applied in a consistent manner, resulting in unpredictability as to the true meaning behind it. The Court either interprets this as an assessment of contextual factors or as an impact assessment, and sometimes even applies it in the absence of a plurality of aims. This article points out the flaws in these different interpretations and formulates recommendations in order to determine where these interpretations would be most aptly applied under Article 18; the former under the predominance test, the latter as a new threshold criterion.’

* Rosanne van Alebeek, Larissa van den Herik, and Cedric Ryngaert, ‘Prosecuting Russian Officials for the Crime of Aggression: What About Immunities?’, European Convention on Human Rights Law Review (2023), editorial.

* Matti Muukkonen, 'Finnish Student Unions as Associations in the Context of ECHR Article 11', Nordic Journal of Human Rights (2023):

‘This study examines the applicability of article 11 of the European Convention on Human Rights (ECHR) to Finnish student unions. In Finland, student unions have not traditionally been regarded as associations within the context of the convention, based on certain old inadmissibility decisions made by the European Commission of Human Rights. Based on the case law of the European Court of Human Rights, this study shows that, despite its wording, the Convention also protects negative freedom of association – the right not to belong. Methodologically, this is a legal dogmatic study that examines the case law, particularly in terms of the criteria by which it excludes or includes some communities from its scope. The conclusion is that, if the case of compulsory membership of student unions is debated in the Court of Human Rights, student unions cannot be considered public institutions, to which article 11 ECHR has not been applicable, but should be treated as associations. This, in turn, implies that compulsory student union membership can be criticised from the perspectives of both national law and the Convention.’

* Cornelia Klocker and Deborah Casalin, ‘Discriminatory practices in armed conflict contexts: exploring (parallel) proceedings under the European Convention on Human Rights and the International Convention on the Elimination of All Forms of Racial Discrimination’, The International Journal of Human Rights (2023): 

‘This article examines the approach of the European Court of Human Rights (ECtHR) to claims of discriminatory practices linked to armed conflict, as well as the more recent development of overlapping or parallel interstate claims before the International Court of Justice (ICJ) and the interstate procedure of the Committee on the Elimination of Racial Discrimination (CERD), based on the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). It examines the potential implications of the latter trend for the application and interpretation of non-discrimination norms, and concludes that this should encourage the ECtHR once again towards application and explicit interpretation of Article 14 in armed conflict contexts. Such an approach would recognise the gravity of any discriminatory dimensions of conflict practices; ensure consistency with the ECtHR’s own evolving case law on discriminatory violence; and facilitate harmonious interpretation of non-discrimination norms, as well as the ECtHR’s autonomous interpretation of the ECHR and participation in judicial dialogue on concepts common to the ECHR and ICERD.’

* Heidi Nichols Haddad and Lisa McIntosh Sundstrom, ‘Foreign agents or agents of justice? Private foundations, backlash against non-governmental organizations, and international human rights litigation’, Law and Society Review (2023):

‘The premise of Russia's 2012 “Foreign Agents” Law, one of the first such laws restricting foreign funding for non-governmental organizations (NGOs), is that foreign monies equal foreign agendas. Since then, over 50 countries have adopted similar laws using a similar justification. This paper interrogates this claim of foreign donor influence through examining legal mobilization by human rights NGOs at the European Court of Human Rights (ECtHR). We track donor support for litigation by providing an overview of all foundation grant flows relating to strategic litigation for 2013–2014, and then matching the granting activities of two major U.S. foundations over 14 years to human rights NGO participation in cases before the ECtHR. Further, through case studies of Russian NGOs, we assess the causal role that donor support has played in facilitating their increased involvement in ECtHR litigation. The combined analysis indicates broad patterns of private foundation support to litigating NGOs, but uncovers no evidence that foreign donors were “pushing” NGOs toward litigation as a strategy, but instead more evidence suggesting that NGOs convinced donors to support human rights litigation. Despite the inaccuracy of the justification underpinning Russia's foreign agent law, the law threatens the survival of human rights organizations.’

* Rebekah McWhirter and Martin Clark, ‘Expertise, Public Health and the European Convention on Human Rights: Vavřička v Czech Republic’, Modern Law Review (2023):

‘In Vavřička v Czech Republic, the European Court of Human Rights held that the Czech Republic's childhood vaccination policy did not contravene the Article 8 right to private life. This note presents a rhetorical and contextual analysis of the Court's engagement with questions of expertise. The majority's application of a wide margin of appreciation avoided grappling with the details of scientific and medical authority, as much as the political challenges raised by the application. We conclude by considering the wider context and limits of rights-based approaches to global public health.’