New 'ECHR/EU' Page on the Court's Knowledge-Sharing Platform

Last week the European Court of Human Rights launched a new 'ECHR/EU' page' on its Knowledge-Sharing Platform (ECHR-KS). On the platform, up-to-date data and analyses of developments in the Court's case-law through specific Convention Articles/Transversal Themes are shared. The new page was launched on the occasion of the seminar 'The articulation between the Convention and EU Law: past, present and future'. The new page contains a comprehensive guide on how the ECtHR addresses EU law in its case-law. It brings together case-law from the ECtHR and the CJEU.

New Issue ECHR Law Review

The second issue of the year of the ECHR Law Review has just been published (Vol. 5, issue 2). The issue contains one editorial, three guest editorials, two research articles and four book reviews. The guest editorials are devoted to the relationship between the ECHR and the ICCPR and the ECtHR and the United Nations Human Rights Committee. The research articles deal with the proposed right of psychological continuity under consideration by the Council of Europe and the UN HRC, and the right of access to reliable information under Article 10 ECHR.

This is the table of contents:

* Vassilis P Tzevelekos, 'On Mastic Trees, the echr, and the iccpr' (editorial)

* Anja Seibert-Fohr, 'The European Court of Human Rights and the Human Rights Committee: Two Actors with a Common Mission' (guest editorial)

* Yuval Shany, 'Catching Up: The European Court of Human Rights Approximates its Approach to Extraterritorial Jurisdiction Over Digital Surveillance to That of the Human Rights Committee' (guest editorial)

* Vasilka Sancin, 'The ECHR and the ICCPR: A Human Rights-Based Approach to the Protection of the Environment and the Climate System' (guest editorial)

* Sjors Ligthart, 'Towards a Human Right to Psychological Continuity? Reflections on the Rights to Personal Identity, Self-Determination, and Personal Integrity' (research article)

* Katie Pentney, 'The Right of Access to ‘Reliable’ Information Under Article 10 echr: From Meagre Beginnings to New Frontiers' (research article)

* Nikos Vogiatzis, 'Good Administration and the Council of Europe: Law, Principles, and Effectiveness, edited by Ulrich Stelkens and Agnė Andrijauskaitė' (book review)

* Spyridoula Katsoni, 'Responsive Human Rights: Vulnerability, Ill-Treatment and the ECtHR, written by Corina Heri' (book review)

* Janna Wessels, 'The Treatment of Immigrants in the European Court of Human Rights – Moving Beyond Criminalisation, written by Amanda Spalding' (book review)

* Christos Tsevas, 'The European Convention of Human Rights Regime: Reform of Immigration and Minority Policies From Afar, written by Dia Anagnostou' (book review)

Book Launch: The ECtHR and the Norm Against Torture

On Thursday 20 June (12:00-14:00 CET), the University of Amsterdam is organizing a book launch of the book 'Between Forbearance and Audacity: The European Court of Human Rights and the Norm against Torture', authored by Ezgi Yildiz (California State University, Long Beach). The book was published with Cambridge University Press in November last year. This is the abstract:

'When international courts are given sweeping powers, why would they ever refuse to use them? The book explains how and when courts employ strategies for institutional survival and resilience: forbearance and audacity, which help them adjust their sovereignty costs to pre-empt and mitigate backlash and political pushback. By systematically analysing almost 2,300 judgements from the European Court of Human Rights from 1967–2016, Ezgi Yildiz traces how these strategies shaped the norm against torture and inhumane or degrading treatment. With expert interviews and a nuanced combination of social science and legal methods, Yildiz innovatively demonstrates what the norm entails, and when and how its contents changed over time. Exploring issues central to public international law and international relations, this interdisciplinary study makes a timely intervention in the debate on international courts, international norms, and legal change.'

You can register here for the book launch. 

New ECHR Readings

Please find below a new selection of recent writings, articles and other, about the European Convention on Human Rights and its Court:

* Fleur van Leeuwen, ‘Epistemic Blind Spots, Misconceptions and Stereotypes: The Home Birth Jurisprudence of the European Court of Human Rights’, European Journal of International Law (2024):

 

‘This article offers a critical feminist reading of the home birth jurisprudence of the European Court of Human Rights. The aim is to shed light on the gender sensitivity of the Court in its legal reasoning and knowledge production. Since its first decision on the permissibility of a blanket de facto home birth ban in the case of Ternovszky v. Hungary in 2010, the Court has given five judgments on the matter, including a Grand Chamber decision in the case of Dubska and Krejzova v. Czech Republic. The author finds that the Court applies an overtly restrictive obstetric narrative of childbirth without situating its controversial epistemic basis. In doing so, the Court reinforces a rationale that is linked to loss of agency and disempowerment of persons in childbirth and reproduces harmful stereotypes. The article highlights bias in knowledge formation and (re)production at the Court in addressing cases of home birth. The findings in this article add to feminist inquiries of international human rights adjudication, specifically in regard to knowledge formation, knowledge production and stereotyping as well as to literature on the Court’s gender sensitivity.’

* Kumush Suyunova, ‘Human Rights Restrictions Prompted by the COVID-19 Pandemic: Uncertainties and Differences in the Practice of ECHR Parties’, Yearbook of International Disaster Law (2022).

 

The newest edition of the European Yearbook on Human Rights (2023, published in 2024), edited by Philip Czech, Lisa Heschl, Karin Lukas, Manfred Nowak and Gerd Oberleitner, ialso includes number of ECHR-related contributions:

 

* Irene Sacchetti, ‘Planetary Justice, Human Rights and the ECHR: Advancing Alternative Onto-Epistemologies to Face Climate-Related Challenges’ (Intersentia 2024):

 

‘Injustices driven by climate change as a result of human ecological destructive activities have become of a planetary level, impacting on the rights of present and future generations, humans and non-humans. The analysis of human rights law through the lens of planetary justice, a conceptual framework which demands an expanded vision of justice beyond borders, across generations, and for non-humans, reiterates the inability of existing human rights law to deal with the intertemporal and interspecies dimensions of climatic harms. This contribution evaluates developments in the context of the Council of Europe (CoE), including the filing of the first climate cases before the European Court of Human Rights, and the push for the recognition of the right to a healthy environment. In doing so, it argues that, despite these steps forward, human rights law remains inefficient to address intergenerational dimensions of justice in the context of climate change . As an attempt to overcome intrinsic obstacles of human rights law deriving from its Western orientation, the contribution explores the potential of informing the interpretation of human rights norms with alternative onto-epistemologies, to ultimately pollinate human rights with alternative ways of thinking. This may provide a way to navigate the unprecedented challenges posed, by climate change, to the human rights legal framework.’

 

* Tomasz Sroka, ‘The Positive Obligations of States to Protect the Climate or the Environment as Part of the Protection of Human Life and Health under the European Convention on Human Rights’ (Intersentia 2024):

 

‘The purpose of this contribution is to analyse whether and how the protection of a clean environment or the climate can be realised through the positive obligations of states to protect human life and health that can be derived from Articles 2 and 8 of the European Convention on Human Rights (ECHR). The contribution includes an attempt to reconstruct the rights to respect, protect and fulfil human rights in environmental matters, as well as the scope of states’ obligations in the field of adaptation and mitigation of climate and environmental risks, as a precondition for the adequate and sufficient protection of human life and health. The thesis of the contribution is that the concretisation of states’ positive obligations within the above scope requires taking into account both the general principles of interpreting obligations to protect human life and health in the context of environmental hazards, and the specific criteria for determining what specific actions, in specific factual circumstances, the state is obliged to take in order to fulfil its obligations under Articles 2 and 8 ECHR. The contribution also presents a catalogue of the most important interpretation principles and specific criteria of the concretisation of states’ positive obligations.’

 

* Clara Zimmermann, ‘Is the European Convention on Human Rights Equipped to Tackle the Plastic Crisis in the Mediterranean Sea?’ (Intersentia 2024):

 

‘Plastic pollution constitutes a complex and severe problem of global scale. As plastic debris accumulates in nature, it increasingly finds its way back to humans through the food chain, the water and the air, with unknown consequences for human health, as well as for terrestrial and marine ecosystems. Additionally, it contributes significantly to the progressive deterioration of the planetary resources, affecting the enjoyment of human rights. The interdependence of human rights and environmental protection is largely recognised by international, regional and national legislation and case law. However, the relation between the human rights legal regime and the environmental legal regime is not straightforward on a dogmatic level. This contribution explores this connection with regard to the European Convention on Human Rights (ECHR), in relation to marine plastic pollution of the Mediterranean Sea.

To this end, the contribution summarises the state of the current academic debate, and the case law of the European Court of Human Rights, on the environmental dimension of recognised human rights, the procedural environmental human rights, and the human right to a healthy environment , with regard to the ECHR. Drawing on scientific assessments of the impacts of plastic pollution on marine ecosystems and humans, as well as on evolutions in international human rights law, the contribution explores arguments in favour of a state duty to protect against environmental harm caused by plastic pollution , under the ECHR, as well as conceptual challenges for the integration of environmental protection within the existing, intrinsically anthropocentric European human rights framework. Bridging environmental law and human rights law, the contribution further proposes a substantive content of a human right to a healthy environment, in respect of healthy oceans, under the European human rights regime, following the concept of ‘good environmental status’ rooted in the EU Marine Strategy Framework Directive.’

 

* Annick Pijnenburg, ‘Ukraine and the Netherlands v. Russia: Taking Stock of the Latest Developments in the Case Law of the European Court of Human Rights on Extraterritorial Jurisdiction’ (Intersentia 2024):

 

‘On 25 January 2023, the European Court of Human Rights (ECtHR, Court) issued its admissibility decision in Ukraine and the Netherlands v. Russia . This inter-state case concerns events in the Donbass area of eastern Ukraine, which began in the spring of 2014, including the downing of flight MH17. It is a landmark decision for many reasons, including the Court's approach to extraterritorial jurisdiction . Indeed, the Court used this case as an opportunity to clarify its general principles regarding jurisdiction, and it is likely to become the leading case on extraterritorial jurisdiction for years to come. More specifically, when formulating the general principles on jurisdiction, in Ukraine and the Netherlands v. Russia, the Court takes into account recent developments in its case law. Accordingly, this contribution examines to what extent the admissibility decision in Ukraine and the Netherlands v. Russia succeeds in incorporating recent developments in the ECtHR's case law into a coherent framework on jurisdiction. It first briefly recalls the main trends in the ECtHR's case law, across landmark cases such as Banković and Al-Skeini, before examining recent relevant ECtHR case law on extraterritorial jurisdiction. The contribution then discusses in detail the Court's approach to jurisdiction in Ukraine and the Netherlands v Russia . It thus shows that Ukraine and the Netherlands v. Russia can be seen as an ‘update’ of the general principles in Al-Skeini. It also confirms that, overall, the Court's case law continues to move in the direction of a more expansive and granular understanding of jurisdiction.’

 

* Lorenzo Acconciamessa, ‘The Case Law of the ECtHR in 2022: Strasbourg in the ‘Age’ of Protocol No. 15’ (Intersentia 2024):

 

‘This contribution analyses the developments in the case law of the European Court of Human Rights in 2022. This is the first year aft er Protocol No. 15, which, inter alia, introduced an express reference to the principle of subsidiarity and the doctrine of margin of appreciation into the Preamble of the European Convention on Human Rights, entered into force. Therefore, although the increased relevance of subsidiarity and margin of appreciation in the Court's approach to the interpretation and application of the Convention is not a new trend, it seems that it can provide an appropriate lens through which the relevant case law developments should be assessed. In light of the above, the contribution examines (some of) the relevant ‘key cases’ decided by the Court in 2022, and tries to highlight the relevance of the above-mentioned principle and doctrine in the identification of the scope and content of the obligations imposed on the domestic authorities by the Convention, as well as in the determination of the nature and scope of the Court's review over compliance with such obligations.’

Call for Papers: Critical Approaches to European Human Rights Law

On 17 January 2025, Esra Demir-Gürsel (Hertie School), Corina Heri (University of Zürich) and Jens Theilen (Helmut Schmidt University) are organizing a workshop on Critical Approaches to European Human Rights Law, and a Call for Papers for the workshop has just been launched. The aim of the workshop is to critically reflect on the ECHR and the ECtHR. The workshop will be held at the Hertie School Centre for Fundamental Rights in Berlin. This is the description of the Call for Papers:

'With this workshop, we aim to provide a forum for critical reflection on the European Convention on Human Rights (ECHR) and the European Court of Human Rights (ECtHR). The practical relevance of human rights language has continued unabated for several decades now. Alongside the rise of human rights, trenchant critiques have been offered. These have foregrounded, for example, the coloniality of human rights, their role in cementing rather than challenging the status quo, and the limitations of who gets to speak in the name of human rights (Venthan Ananthavinayagan & Theilen 2024; see e.g. Mutua 2001; Kapur 2002; Baxi 2008; Marks 2011; D’Souza 2018). 

While critical accounts of human rights often acknowledge their use for emancipatory aims by social movements or community activism, they particularly highlight their limits in institutionalised and judicialised settings (O’Connell 2018; McNeilly 2019). The ECtHR could be considered a paradigmatic example of strongly judicialised human rights. Nonetheless, critical accounts that focus specifically on European human rights law have been scarce. Despite long-standing debates about method and different perspectives (Dembour 2006; Gonzalez Salzberg & Hodson 2020; Gerards, Erken & Loven 2023), most scholarship on the ECHR remains doctrinal or, increasingly, quantitative. Rather than seeing European contributions to human rights as ambivalent (Çalı 2023), large parts of scholarship continue to depart from the unspoken assumption that European human rights law constitutes a fundamentally benign project. 

Meanwhile, historically oriented scholarship on the ECHR and ECtHR has laid bare their foundational entanglements with European conservatism, colonialism, and national sovereignty (Duranti 2017; Reynolds 2017; Demir-Gürsel 2021). Strong critical traditions have also developed with a view to challenging the ECtHR’s approach to particular topics such as gender and sexuality (Theilen 2018; Gonzalez Salzberg 2019; Kapur 2020; O’Hara 2021), migration (Dembour 2015; de Vries & Spijkerboer 2021), secularism and religiosity (Danchin 2011; Demir-Gürsel 2013; Kapur 2020), or carcerality (Lavrysen & Mavronicola 2020; Pinto 2023; Tapia Tapia 2023). However, the implications of these critical accounts for how we approach European human rights law as a whole remain relatively underexplored. With some exceptions, even many critical accounts do not take the step from critique of the ECtHR’s case-law to critique of the ECtHR itself and of European human rights law.

We would like to push this boundary by further developing critical approaches to European human rights law as a whole. Taking the various critical traditions on particular human rights themes as a starting point, we aim to broaden the conversation and consider their implications for how we think about the ECHR and the ECtHR more generally. How might a Marxist critique of courts, a queer critique of rights, or a decolonial critique of the notion of “Europe” shift our understanding of the European project of human rights? 

To this end, we also welcome contributions that deconstruct and challenge dominant framings (Butler 2016) of the ECHR and the ECtHR in order to shake up assumptions about their role for emancipatory politics. How does scholarship frame the ECHR and the ECtHR? How can we challenge the framings of existing scholarship? Framings to critically analyse might include conceiving of the ECtHR as a successful court (particularly in comparison to human rights courts in other regions), as an agent of progress, or as a strategic actor focussed on institutional continuity. They might involve common tropes like legitimacy management or incrementalist change. How are such framings of the ECtHR normalised and naturalised within scholarship, what role does emotional attachment to human rights play in upholding them, and what are their politics? 

Building on these discussions, we are also interested in debating what comes after critique – or indeed “after rights” (Sokhi-Bulley 2024; Odysseos 2024) – specifically in the context of European human rights law with its high measure of institutionalisation and judicialisation. What insights can we gain from an engagement with notions like rights redemptionism (Golder 2014) and cruel optimism (Berlant 2011)? How should we engage with the dangers of both false necessity and false contingency (Marks 2009) in the context of European human rights law? 

In brief, we would like to debate the direction(s) that critical scholarship on the ECHR and the ECtHR could or should take. We hope that the workshop will serve to inaugurate a loose research network for thinking critically about European human rights law.'

The deadline for abstract submissions is 8 July 2024. 

Conference on the Implementation of ECtHR Judgments

On 19 June 2024, the European Implementation Network (EIN) will hold a conference entitled 'Safeguarding the Rule of Law: Implementing ECtHR Judgments for Lasting Impact' as part of its project on 'Promoting the Rule of Law in Europe through the Implementation of Judgments of the ECtHR Concerning Independence and Impartiality of the Judiciary'. The conference will be organized in the Hague in the Netherlands. The aim of the conference is to empower civil society and practitioners across Europe to promote rule of law reforms by sharing knowledge about the implementation of judgments of the ECtHR.

The project aims to promote the independence and impartiality of the judiciary in Europe, through the implementation of judgments of the European Court of Human Rights on this topic. More information about the project can be found here.