Monday 25 March 2024

New ECHR Articles in the HRLR

The newest issue of the Human Rights Law Review (Volume 24, Issue 1, March 2024) has been published, which includes a symposium. - partly comparable with a special issue - on the theme of 'The European Court of Human Rights and the Theoretical Crisis of Human Rights'. In addition, it includes also another ECHR-related article. Here is the list with abstracts:

* Bosko Tripkovic and Alain Zysset, ‘Uncovering the Nature of ECHR Rights: An Analytical and Methodological Framework’, Human Rights Law Review (2024):
‘How does the European Court of Human Rights (ECtHR) understand the nature of human rights? The article develops a framework for the analysis of this question and shows how it can be applied. The first part identifies a gap at the intersection of doctrinal and philosophical approaches to human rights practice that leaves the ECtHR’s understanding of the nature of rights unaccounted for. The second part develops an analytic and methodological framework based on the idea of grounds, content and scope of human rights to bridge this disciplinary divide and facilitate a more perspicuous analysis of the Court’s conception of the nature of human rights. The third part tests this framework by examining the Court’s doctrines in relation to freedom of thought, conscience and religion and the right to free elections.’
* Corina Heri, ‘Deference, Dignity and ‘Theoretical Crisis’: Justifying ECtHR Rights Between Prudence and Protection’, Human Rights Law Review (2024):
‘The present article engages with human rights law’s purported ‘theoretical crisis’, according to which rights—and specifically those in the European Convention on Human Rights (ECHR)—are bereft of a convincing theoretical foundation. In doing so, the article interrogates the use of crisis-oriented language, challenging the very idea of a ‘theoretical crisis’ of rights. Identifying the tension between judicial activism and judicial deference as the source of the crisis narrative, this piece engages with the theoretical foundations of ECHR rights, rejecting binary opposition between opposing moral and political accounts of these rights. It presents an alternative account by framing human rights as capable of combining convincing moral foundations with institutional and political realities. This means melding principle and dynamism, and using moral values to interrogate a human rights law that remains indivisible from its institutional backdrop. Under this account, both the Court’s tools of deference, especially its European consensus doctrine, and the objection of rights inflationism must be subjected to scrutiny. This article straddles theory and practice to allow for a fresh perspective concerning the justification of rights, what is at stake, who bears the burden of restraint, and how current responses to backlash should be re-evaluated.’
* Steven Wheatley, ‘Interpreting the ECHR in Light of the Increasingly High Standards Being Required by Human Rights: Insights from Social Ontology’, Human Rights Law Review (2024):
‘This article looks to make sense of those cases where the European Court of Human Rights (ECtHR) changes its position on interpretation in light of the increasingly high standards being required by human rights, when the Court applies the doctrine of evolutive interpretation to the ECHR’s object and purpose, as a Convention for the protection of ‘human rights’ (e.g. Selmouni v France). This raises two questions: What do we mean when we speak about ‘human rights’? Can the demands of human rights really change over time? Looking to the insights from social ontology, we can think of human rights as a social institution, emerging with the adoption of the Universal Declaration of Human Rights and evolving with changes in human rights practices. Understood this way, reliance on the increasingly high standard doctrine becomes defensible when the ECtHR judgments are consistent with the evolving practices on human rights and the moral values that underpin the UDHR.’
* Lea Raible, ‘Allocating Human Rights Obligations in the ECHR’, Human Rights Law Review (2024):
‘This article asks how to allocate human rights obligations stemming from the European Convention on Human Rights and defends an interpretivist account of human rights based on the values of integrity and equality to answer it. First, it considers the structure of rights and argues that human rights usually require a duty bearer who needs to be identified. Second, the article analyses interest-based theories of human rights and shows that they do not speak to the allocation of duties. Third, I argue that duties can only be allocated relying on a normative principle and that an interpretivist account of human rights allows for underlying values to be identified. Fourth, I show that these values should be understood to be integrity and equality. Finally, the article applies the framework to the judgment in Carter v Russia, showing that an explicitly normative account supplies principled distinctions where other approaches cannot.’
* Başak Çalı, ‘Does the Practice of the European Convention on Human Rights Fit the Practical Conception of Human Rights?’, Human Rights Law Review (2024):
‘This article investigates how the practice of European human rights, organised around the European Convention on Human Rights, can be brought into conversation with the practice conception of human rights advanced by Charles Beitz in the Idea of Human Rights. The article argues that this is a challenging task. Following Beitz’s construction of the human rights practice composed of (a) a global practice, (b) political discursive practice, (c) triggering a range of international action for corrective concern, (d) when states fail to protect urgent individual interests, the article identifies two main challenges: (1) the regional and legal-political character of the European human rights practice and (2) the lack of fit between the heuristic of urgency of individual interests and the European human rights practice. Having identified these challenges, however, I conclude that putting European human rights practice and the practice conception into a conversation reveals new knowledge at the intersection of moral and legal accounts of human rights. A closer engagement with the practice conception enables a better understanding of the key abstract features of European human rights practice. A closer engagement with this practice accentuates the normative case for making sense of predominantly legal and regional practices of human rights.’
* Alon Harel, ‘The Tension between the National and ECHR Human Rights Adjudication: A Normative’, Human Rights Law Review (2024):
‘This article examines cases of conflicting decisions between the ECHR and State Courts. I argue for ‘discordant adjudicative parity.’ According to discordant adjudicative parity, there are compelling non-instrumental reasons for having both international adjudicative institutions and state adjudicative institutions that can make binding, conflicting decisions. Binding decisions by international adjudicative institutions embody the understanding that human rights are duties rather than decisions that are voluntarily undertaken. State Courts facilitate deliberative engagement on the part of citizens as, ultimately, the citizens are in charge of States’ courts. I use this analysis to justify the principle of subsidiarity in European law.’
* Julen Etxabe, ‘Borrowed Words and Judicial Gestalt: A Dialogical Reading of Hirst, the ECtHR and Prisoner Voting Rights’, Human Rights Law Review (2024):
‘This article suggests that judgments of the European Court of Human Rights exhibit a textual quality that Mikhail Bakhtin called dialogism, namely, a kind of discourse constituted by a plurality of mutually effecting and interpenetrated voices. Such compositional choice is not just a lengthy prolegomenon to any decision, nor an unnecessary appendix that could be safely eliminated; it is actually fundamental for the construction—and comprehension—of any ECtHR opinion. In this article, I will focus on the 2005 case of Hirst, in which the Grand Chamber declared that the UK legislative blanket ban on prisoner voting is incompatible with the European Convention of Human Rights. As a controversial case about as-yet live-wire issues, Hirst can be shown to be a profoundly dialogized text despite all appearances to the contrary, which paves the way for a more general argument about the dialogical practice of adjudication by the Court.’

Friday 15 March 2024

Summer School on the Council of Europe

The School of Law and Social Justice of the University of Liverpool will be organizing its second summer school on the Law of the Council of Europe. It will take place between 8-19 July 2024 and is useful for postgraduate students, post-doctoral researchers, early career scholars and practitioners interested in the law of the Council of Europe, human rights, the rule of law and democracy. The lecturers include researchers as well as practitioners. This is the abstract of the contents:

''On 5 May 1949, the Statute of the Council of Europe was signed in London establishing the organisation. For the last 75 years, Europe has been united in the protection of human rights, democracy, and the rule of law. Today, humankind faces new challenges that differ from the ones that were prevailing in Europe in the spring of 1949. Our Summer School will explore two key strands of themes. First, the Summer School will reflect on certain key modern-day challenges, discussing what role the Council of Europe can play in the era of digital revolution and new technologies. These new technologies, such as artificial intelligence and neurotechnology, offer opportunities and may even impact positively human rights. But they can also endanger the enjoyment of fundamental human rights. How well-equipped is the Council of Europe and human rights law more generally to offer protection from these emerging threats? Second, the Summer School will assess the Council of Europe as a sophisticated and multipart system for the protection of human rights, democracy, and the rule of law. To that end, the Summer School will consider how different bodies of the Council of Europe contribute to the fundamental aims of the organisation, but also the history and the effectiveness of the Council of Europe as a whole and of some of its mechanisms, treaties and bodies, such as the Committee for the Prevention of Torture, the Social Rights Committee, the Venice Commission, the European Court of Human Rights and many others.''

The deadline for applications is 14 April 2024.

Thursday 14 March 2024

New Book on the European Court and its Two Regional Siblings

Laurence Burgorgue-Larsen of the Sorbonne University in France has published an English-language version of her earlier comparative work in French on the three regional human rights courts. The book, entitled The 3 Regional Human Rights Courts in Context - Justice That Cannot Be Taken for Granted, was just published with Oxford University Press and of course includes the European Court of Human Rights as one of the three courts analysed. This is the abstract:

'At specific moments in the history of Africa, Europe, and Latin America, each region decided to create supranational jurisdictions to protect human rights. These are, in chronological order, the European Court of Human Rights, the Inter-American Court of Human Rights, and the African Court on Human and Peoples' Rights. While each has been the subject of important, dedicated monographs, no major study has analysed both the institutional and jurisprudential issues of all three regional systems.

The 3 Regional Human Rights Courts in Context: Justice That Cannot Be Taken for Granted is the first book to offer a comprehensive comparison of the three systems. Rather than merely juxtaposing analogous features, the book considers how the three courts operate as parts of a greater, integrated whole. Similarities and differences between the courts are illuminated alongside historical, political, and sociological insights, in addition to the book's primary legal focus.

Close analysis of the processes by which the courts came into being makes it clear that, regardless of distinct political, cultural, or other variances, states on each of the three continents have chafed against international supervision. The book also debunks the common belief that, after the Second World War, the thrust of human rights initiatives was so powerful that states no longer need to discuss them. Justice cannot be taken for granted—a position further supported by the book's analysis of how each court has evolved and how their rulings have been implemented.

Laurence Burgorgue-Larsen's dynamism and multidisciplinary approach makes it possible to truly understand the stakes behind the institutional and jurisprudential developments of the three regional human rights courts. This is a book that will interest not only legal practitioners but also specialists in international relations, human rights, and countless other fields.'

Friday 8 March 2024

Up in the Trees - Interim Measures and Environmental Protesters

A rather unusual request to Strasbourg: earlier this week, the European Court of Human Rights rejected a request for interim measures by a group of environmental protesters in France. The protesting people, known as écureuils (squirrels), have been up, at a height of 15 metres, in the trees in the Tarn region of France. They are trying to halt the felling of trees on the trajectory of a future motorway that would cross a stretch of forest land. In their application, in the case of Viard-Seifert and Others v. France (application no. 6024/24) they asked to Court as an interim measure to securing food and water supplies for them - currently halted by the police who are attempting to get the protesters down - as well as their safety. According to the Court's press release:

'Relying in particular on Article 3 of the Convention, they complained of the police measures being used to force them down from the trees. Their main argument was that the fact of depriving them of water, food and sleep amounted to inhuman and degrading treatment. They alleged there was an imminent risk of irreparable harm to their lives and health.

On 29 February 2024 the applicants had lodged an application with the European Court of Human Rights under Rule 39 of its Rules of Court, requesting the adoption of a series of measures aimed, in particular, at securing their supply of food and water and ensuring their safety.'

After a quick back and forth between the parties, the Court's duty judge decided not to indicate interim measures. The press release does not indicate the exact reasoning, but the threshold criterion for interim measures is whether there would be "irreparable harm" to the rights under the ECHR. The choice for the protesters to stay in the trees or come down may have played a role there.

The activists have also alerted the special rapporteur on environmental human rights defenders under the Aarhus Convention, Michael Forst, to the issue. For more background info on the situation, see also this news release. According to local media, several 'squirrels' are still up in the trees.