Thursday 5 October 2023

New ECHR Readings

We have again collected a selection of ECHR-related academic publications of the last few months. Please find them below:
* Ludovica Chiussi Curzi, ‘Third parties before the European Court of Human Rights: Addressing Limits, Unfolding Potentials’ Questions of International Law, no. 100 (2023).
* Janneke Gerards, ‘Moving Away from Open Judicial Balancing Review: The European Court of Human Rights’ Approach as Illustrated by Its Case Law Relevant to the Covid-19 Pandemic’ The Law and Practice of International Courts and Tribunals 2023, vol. 22, no. 2, p. 365-383:
‘The Covid-19 pandemic truly has been called a global crisis. To fight the spread of the virus, many States have introduced measures that seriously restrict or affect fundamental rights, ranging from procedural rights to the freedom of movement and the right to personal autonomy. In Europe, it is to be expected that many cases concerning such rights infringements eventually will come before the European Court of Human Rights (ECtHR). This contribution aims to give an insight into how the Court will likely give shape to its proportionality test in such cases. It thereby predicts that open balancing review – for which the ECtHR is famous – will play a much less important role than methods of reasoning by analogy and procedural review.’ 
* Eva Brems, ‘Misunderstanding the margin? The reception of the ECtHR’s margin of appreciation at the national level’, International Journal of Constitutional Law (2023):
‘This exploratory article focuses on the receiving end of the margin of appreciation doctrine of the European Court of Human Rights (ECtHR), that is to say, the response of national- level legislators and courts to ECtHR case law involving other states parties, that grants national authorities a wide margin of appreciation. The paper explores the risk that national authorities might misinterpret the margin of appreciation in such cases as a marker of human rights clearance of a rights-restrictive practice as such or as a prompt for domestic courts toward deference in their relationship with the legislative and executive powers. The paper finds anecdotal evidence of such misinterpretation by domestic legislators in the reception of SAS v. France. In addition, an examination of recent fundamental rights case law of the Belgian Constitutional Court illustrates the existence of a problem of misunderstanding the margin of appreciation at the level of domestic courts.’
* Marisa Iglesias Vila, ‘Who misunderstands the margin of appreciation? A reply to Eva Brems’, International Journal of Constitutional Law (2023):
‘This reply offers some critical reflections that tie into the assumptions of Eva Brem’s interesting study of the risk of national authorities’ misunderstandings of the margin of appreciation conceded by the European Court of Human Rights (ECtHR). Taking on board a cooperative conception of the principle of subsidiarity, this reply first questions the adequacy of the distinction between a systemic and a normative dimension of the margin of appreciation as the proper basis for assessing the risk of domestic misunderstanding of the margin of appreciation. Next, it raises some objections to the analysis that Brems makes of the ECtHR judgment in S.A.S. v. France, particularly her application of the normative dimension of the margin of appreciation to this example of possible misunderstanding. The reply argues that Brems’s assumption that the ECtHR conducted a procedural rationality review of the French burqa ban minimizes Strasbourg’s own contribution to the risk that other states, in similar cases, may misunderstand how human rights are to be applied to avoid misinterpreting their national margin of appreciation.’
* Maria A. Sanchez, ‘Admitting (to) the past: transitional justice in the European and Inter-American courts of human rights’ The International Journal of Human Rightsvol. 27, no. 8, pp. 1244-1266:
‘The Inter-American Court of Human Rights (IACtHR) and European Court of Human Rights (ECtHR) have developed divergent approaches to interpreting their temporal case admissibility criteria, despite those criteria being nearly identical on paper. This puzzling variation has important implications for the extent to which Americans and Europeans can pursue international legal recourse for human rights abuses committed during past civil conflicts and dictatorial regimes. The IACtHR has clearly established that states can be held responsible for ongoing human rights violations that originated prior to state accession to the Court. However, when victims of similar rights violations have submitted cases to the ECtHR, the Court has frequently declared their cases inadmissible. This article demonstrates that the divergent geopolitical origins of the ECtHR and IACtHR have driven the ECtHR’s narrower interpretation of its temporal jurisdiction relative to the IACtHR. Tracing this process sheds light on the conditions under which international courts can hold governments accountable for past human rights abuses in post-conflict societies.’