Tuesday 31 May 2011

The Economist's View on the Court

Charlemagne, the European columnist of the Economist wrote an Op-Ed earlier this month on Europe's two highest Courts: Supreme muddle - Europe’s highest courts can be annoying, but they do more good than harm. The gist of the article is that even though the two, the ECJ and the ECtHR, might at times be annoying to politicans, on the balance it is good that we have them (sic!). The article is neither very positive, nor very negative. As Charlemagne says "Judicial nonsense should be restrained wherever possible but may be a price worth paying for the protection of Europe’s prosperity and freedom." Note the "may" in that latter sentence: not really a wholehearted statement of support!

Monday 30 May 2011

Article on Children's Right to be Heard

Aoife Daly of Trinity College Dublin has written an article on the rights of children in legal proceedings, entitled 'The right of children to be heard in civil proceedings and the emerging law of the European Court of Human Rights'. It was published in the third issue of volume 15 (2011) of the International Journal of Human Rights. This is the abstract:

The right of children to be heard in civil proceedings affecting them as enshrined by the Convention on the Rights of the Child is not expressly contained within the European Convention of Human Rights, nor has such a right been explicitly determined by the European Court of Human Rights. However considering the principles of evolutive interpretation, the positive obligations inherent within art. 6 and art. 8 as well as the case law on hearing children to date, it is to be argued that such a right can be derived under the Convention.

Thursday 26 May 2011

ECHR and Human Rights Violations in Chechnya

The Journal of International Humanitarian Legal Studies, in its December 2010 issue, includes an article on remedies offered by the European Court to victims of the armed conflict in Chechnya. The article, written by Kirill Koroteev of the University of Strasbourg, is entitled 'Legal Remedies for Human Rights Violations in the Armed Conflict in Chechnya: The Approach of the European Court of Human Rights in Context'. This is the abstract:

The article discusses the efficacy of the remedies offered to successful applicants by the European Court of Human Rights in the cases coming from the armed conflict in the Chechen Republic of the Russian Federation. It submits, firstly, that proper establishment of facts constitutes a remedy in itself for victims of human rights violations in an armed conflict. It then analyses the establishment of facts by the Court in the Chechen cases and argues that the assessment of evidence under the Court's burden of proof 'beyond reasonable doubt' was applied unevenly in different cases. The paper suggests that the Court obtains evidence proprio motu, which it has never done in the Chechen cases. Secondly, this paper evaluates the European Court's practice to limit the just satisfaction by monetary awards and to consistently deny the applicants' requests for non-monetary awards. It then discusses the developments in the international law on reparations for human rights violations under the ECHR and in the Inter-American and UN systems, and argues for a need to enhance the European Court's awards of just satisfaction. Finally, the paper assesses the supervision of the execution of judgments in the Chechen cases, finds it ineffective, and suggests that more actions are required from the Court in order to deal effectively with alleged human rights violations arising from armed conflicts.

Wednesday 25 May 2011

The Court and Changes at the Domestic Level

What is the effect of the European Court's rulings on other countries than the one in the specific case at hand? An intriguing question not only of legal theory, but especially of practice. A political scientist and a legal scholar have joined forces to make some forays into answering this question. Laurence R. Helfer of the Duke University School of Law and Erik Voeten of Georgetown University's Edmund A. Walsh School of Foreign Service have posted a working paper on SSRN entitled 'Do European Court of Human Rights Judgments Promote Legal and Policy Change?'. The paper explores the more general question by looking at the follow-up of the Court's LGBT case-law. This is the abstract:

Do the rulings of international courts set precedents that influence actors other than the parties to the dispute? Are international courts agents of change or do their judgments merely reflect ongoing social and political trends? We answer these questions in the context of European Court of Human Rights (ECtHR) judgments on lesbian, gay, bisexual and transgender (LGBT) issues. ECtHR judgments often explicitly reflect evolving practices in Council of Europe’s member states. We suggest three mechanisms through which such judgments could push lagging states toward adopting policies and laws in line with those of more progressive countries. First, national courts can rely on ECtHR jurisprudence to invalidate domestic laws. Second, ECtHR rulings can help inform and mobilize domestic constituencies to push for legislative change. Third, ECtHR rulings can have an indirect effect by affecting the conditions the EU and the Council of Europe set for membership. We investigate these hypotheses using a new dataset that matches ECtHR judgments on LGBT issues with national laws and policies in Council of Europe member countries. We address endogeneity concerns by modeling the Court’s decision-making process. We find that ECtHR judgments have a significant and positive effect on the probability that lagging countries will adopt legal reforms that expand LGBT rights and that all three mechanisms contribute to this. Even though the implementation of ECtHR rulings is far from perfect, the precedential effect of these rulings sometimes induces states to adopt policies that they might otherwise not have adopted or would have adopted later.

Wednesday 18 May 2011

Kant and the Convention

Although Immanuel Kant's home town of Kaliningrad, formerly Königsberg, falls within the territorial ambit of the European Convention, who would have thought that the famous philosopher's ideas could be relevant in assessing the national implementation of the ECHR? Mads Andenas of the University of Oslo and Eirik Bjorge of the University of Oxford have published "National Implementation of ECHR Rights: Kant’s Categorical Imperative and the Convention" as a University of Oslo Faculty of Law Research Paper. This is the abstract:

The effectiveness of the European Convention of Human Rights and of the judgments of the European Court of Human Rights depends on national implementation. This article looks at the implementation of the Convention in Belgium, the Czech Republic, France, Germany, Norway, Russia, and the United Kingdom. In all of these jurisdictions there has been fundamental change over the last 10-15 years. For the ECHR system to work, the national courts must interact with Strasbourg only in ways which are capable of being universalised and applied also by other European courts. This article inquires into whether national courts have taken on board the imperative of their role and responsibility in a wider European context: a UK exceptionalism will breed a Russian etc. The inquiry concludes that the national jurisprudence implementing the Convention into national law generally has taken this imperative on board.

Monday 16 May 2011

Documents on EU Accession to the ECHR

With the negotiations between the European Union and the state parties to the ECHR in full swing about the accession of the EU to the European Convention, the "Informal Group on Accession of the European Union to the Convention" has a specific page on the website of the Council of Europe. It contains the reports of the meetings so far, updated versions of the draft accession agreements, reactions by states and NGOs and much more. A perfect way to remain abreast of the developments on this important issue.

Thursday 12 May 2011

Case Note on Humanitarian Law and ECHR

It might be an unexpected place to look for it, but the newest issue of the Chinese Journal of International Law (vol. 10(1), 2011, 129-140) includes a case note by Eriko Tamura of Kansai University in Japan entitled 'The Isayeva Cases of the European Court of Human Rights: The Application of International Humanitarian Law and Human Rights Law in Non-International Armed Conflicts'. This is the abstract:

This note analyses the 2005 Isayeva cases of the ECtHR, involving a non-international armed conflict, in order to show whether the Court applied only and directly the stricter standards of HRL (right to life in Article 2 of the ECHR) and, if not, how the Court substantially relied on IHL, by focusing on the differences of the principles of necessity and proportionality for the use of force between HRL and IHL. It concludes, contrary to what some authors insist, that even in the absence of the invocation of a public emergency in Article 15 of the ECHR by the State concerned, and therefore cautiously, the Court did indirectly apply IHL as an interpretive guideline for HRL.

Tuesday 10 May 2011

More Documents and Info on Izmir

For all information on the Izmir high level conference (of two weeks ago) on the European Court of Human Rights, a special website can be consulted here. It includes speeches of the key speakers as well as the final declaration which includes the adoption of a follow-up plan.

For the speech of the president of the Parliamentary Assembly of the Council of Europe, click here and for a summary here. He mentioned inter alia that the Parliamentary Assembly and the European Parliament have been meeting "to discuss the modalities of the participation of EP representatives in the Assembly’s process of electing judges to the Court subsequent to such accession."

The statement of Amnesty International after Izmir expressed concerns over the Court reform process. Click here to read it.

Wednesday 4 May 2011

Article on ECHR and Right to Reputation

Stijn Smet, PhD researcher at the University of Ghent, published an article on ECtHR defamation jurisprudence entitled 'Freedom of Expression and the Right to Reputation: Human Rights in Conflict' in the American University International Law Review (Vol. 26, No. 1, pp. 183-236). This is the abstract:

Ever since the European Court of Human Rights has recognised the existence of a right to protection of reputation under the European Convention on Human Rights, a conflict between Convention rights arises in defamation cases. In such situations of conflict between freedom of expression and the right to reputation, the principle of indivisibility of human rights requires that both rights carry a priori equal weight. Yet, the research conducted for this article indicates that the Court engages in preferential framing and incomplete reasoning when attempting to resolve the conflict in its defamation case law. In order to pre-empt such preferential framing and to improve the reasoning of the Court the article proposes a theoretical model for the resolution of conflicts between human rights. The jurisprudence of the Court on the conflict between freedom of expression and the right to reputation in defamation cases is critically analysed through the lens of this model. The article demonstrates how the model might prove to be a useful tool to improve the legal reasoning of the Court in defamation cases.

Tuesday 3 May 2011

Report on Legitimacy of the ECtHR

Yesterday, the report 'The Legitimacy of the European Court of Human Right's: The View from the Ground' was presented in Strasbourg'. The research for the report was undertaken by Basak Çali, Anne Koch and Nicola Bruch, political scientists of University College London. The report presents an "analysis of the perception of the European Court of Human Rights in five different political and legal contexts to understand how the Court’s rulings are interpreted and implemented in the domestic setting." Five countries were studied in-depth by way of interviews with key domestic actors (politicians, judges, lawyers): the United Kingdom, Turkey, Bulgaria, Germany and Ireland. The clearly written report has includes a lot of very interesting findings and concludes, amongst other, that overall the european court has a 'legitimacy credit' rather than a 'legitimacy deficit'.

For the website of the research project, click here.