Wednesday 20 December 2023

New ECHR Readings

In the last batch of readings of 2023 related to the European Convention on Human Rights and its Court, please find our selection below. We wish all our readers a good holiday season!

* Helen Keller and Viktoriya Gurash, ‘Expanding NGOs’ standing: climate justice through access to the European Court of Human Rights’ Journal of Human Rights and the Environment (2023), vol. 14, no. 2, p. 194-218:


‘Due to the nature of environmental litigation, expanding the standing of actors that could bring claims to the European Court of Human Rights (ECtHR) – such as non-governmental organizations (NGOs) – has become a pressing need. This article explores the current approach to NGOs’ standing to bring environment-related claims before the ECtHR. In particular, by drawing on the Aarhus Convention, the article explores NGOs’ important role before the ECtHR given their recognized right to environmental information, as well as their role in upholding the right to a fair trial at national level. In conclusion, it is argued that NGOs should be given a more prominent role in environmental cases and that the dichotomy between the case law regarding NGOs’ standing in claims under Articles 2, 3 and 8 on the one hand, and Articles 6 and 10 on the other, is outdated.’


* Helga Molbæk-Steensig and Alexandre Quemy ‘Judicial Independence and Impartiality: Tenure Changes at the European Court of Human Rights’, European Journal of International Law (2023), vol. 34, no. 3:


‘Judges should be impartial and independent, judging based solely on the law. Current constitutional literature suggests an important factor in securing this may be the length of tenure. The assumption is that judges with non-renewable terms are more independent than judges with renewable terms since they do not have to worry about reappointment, but proving this assumption empirically is not straightforward. Obstacles include difficulties in comparing different courts and the fact that there is often no obvious case outcome that proves independence. This article aims to overcome these obstacles with a mixed-methods study on the European Court of Human Rights during a time when the tenure rules changed. The study goes beyond the counting of votes and analyses the arguments used in separate opinions as indicators of independence. Our main findings are that, after the introduction of non-renewable terms, judges write more opinions overall, and more of them criticize the judges’ appointing states, while fewer defend it. We also find that judges on non-renewable terms are on average more likely to write opinions addressing violations as systemic problems and to use their opinions to provide guidance for their appointing states on implementing judgments and improving human rights protection.’


* Patrick Leisure, ‘Europe's Schoolhouse Gate? Strasbourg, Schools, and the European Convention on Human Rights’, Stanford Journal of International Law (2023), vol. 59, no. 2: 


‘Yale law professor Justin Driver's 2018 book, The Schoolhouse Gate, argues that American public schools have served as the most important sites of constitutional conflict in United States history. This Article, inspired by Driver's work, argues that primary and secondary schools similarly serve as some of the most significant forums of human rights conflict in the Council of Europe. In support of this argument, the Article adopts a two-tiered analysis. The first is court-centric, focusing primarily on the jurisprudence of the European Court of Human Rights involving schools. The second is society-centric and homes in on the crossroads at which the European Court of Human Rights, schools across the Council of Europe, and European societies meet. By making the above claim regarding the centrality of schools, this Article hopes not only to spur on further discussion about human rights within Europe's schoolhouse gate, but also to deepen the conversation regarding how schools as institutions interact with European supranational human rights protections.’


* Cosette D Creamer and Zuzanna Godzimirska, ‘Trust, Legal Elites, and the European Court of Human Rights’, Human Rights Quarterly (2023), Vol. 45, no. 4:


‘This article interrogates institutional sources of trust distinct to the European Court of Human Rights (ECtHR). Drawing from interviews with ECtHR officials and legal elites, the article identifies practices related to access, procedure, and performance that are central to direct stakeholders' evaluations of judicial trustworthiness. Elite trust is necessary for the continued operation of judicial bodies, and these stakeholders act as intermediaries with the potential to shape public perceptions. The article's findings have important implications for ECtHR's continued relevance, especially given the mounting resistance to it in recent years.’

* Ottavio Quirico, ‘Sources of EU Law: A Review in Light of the Accession of the Union to the ECHR - A Matter of Principle’, Hungarian Yearbook of International Law and European Law (2023):


‘The accession of the EU to the ECHR raises several problems. This article argues that procedural problems are fundamentally rooted in substantive issues, with specific regard to the sources of EU law. More precisely, in order to allow accession, it would be essential to review Article 6(3) TEU so as to lower the level of the ECHR as a source of general principles of EU law to (at least) the same hierarchical level as the founding treaties. Yet, while this solution can be satisfactory for EU Member States that are parties to the ECHR and its protocols, it is not necessarily appealing to non-EU States that are parties to the ECHR system, similar to the stall generated by the Energy Charter Treaty in the field of investment. Furthermore, the solution fundamentally clashes with the consolidated priority of the general principles of EU law crystallized in cases such as Kadi.’

* Sergio Salinas Alcega, ‘The Invasion of Ukraine from the Point of View of the European Court of Human Rights: Extraterritorial Responsibility of Russia and (Un)Control of International Humanitarian Law’, Revue Québécoise de Droit International (2023):


‘The negative impact of the invasion of Ukraine by Russia on international law has many dimensions, the massive and flagrant violation of human rights being one of the most relevant. From this perspective, the role of international mechanisms for the protection of these rights, and notably the European Convention system and the European Court of Human Rights (ECtHR), has become particularly important. The Strasbourg Court’s approach can be divided into two different aspects, which are obviously interrelated. The main aspect relates to the scope of the European Convention on Human Rights’ (ECHR) responsibility regarding Russia. Considering that relevant acts are committed by Russia outside its territory, the question of the extraterritorial application of the Convention becomes crucial. The second aspect relates to how the Strasbourg judges see the interplay between the ECHR and international humanitarian law, and especially their role in exercising a certain amount of control over the latter’s application. Here, the Court could help remedy the shortcomings that currently exist in terms of the availability of specific mechanisms to demand responsibility from the States for the violation of norms in this domain of international law. Regarding both aspects, there is already a rich and developing Strasbourg jurisprudence even if, of course, it is not exempt from criticism. The acts committed by Russia in Ukraine may make it possible to revisit this jurisprudence and allow it to overcome certain shortcomings which have been identified.’


* Aikaterini Tsampi, ‘Islandness and the European Court of Human Rights: Marooning Rights on Islands?’, Netherlands International Law Review (2023), vol. 70 no. 2:


‘Some 80 million people live on European islands. It thus comes as no surprise that a number of cases brought before the European Court of Human Rights developed on and/or pertain to islands. What is surprising, though, is that this jurisprudential corpus has not been explored with a view to assessing whether islandness has or should have a role in the implementation of the European Convention on Human Rights on islands. The present paper contemplates the strengths of an islandness-based approach in the implementation of human rights through the mapping of the weaknesses, the potentials and the lost opportunities in the case law of the Court with respect to such an approach. In this context, findings from the field of Island Studies are also considered. By focusing on the ECHR habitat, the present paper exemplifies, in particular, the untapped potential of an islandness-based approach in the development of international human rights law in general.’