Introduction to blog symposium: Three recent monographs on the European Convention on Human Rights

By Eva Brems

Strasbourg Observers is happy to host a blog symposium that presents three recent monographs featuring in-depth research on the case law of the European Court of Human Rights. All three were written by young scholars.  Corina Heri is a postdoctoral researcher at the University of Zürich; Jens Theilen is a research associate at Helmut-Schmidt-University, Hamburg; and Natasa Mavronicola is a Reader in Law at Birmingham Law School. For many readers, these are likely to be familiar names, as they are active participants in the academic community (and in Corina and Natasa’s case, have previously published in this blog).

Corina Heri’s Responsive Human Rights. Vulnerability, Ill-treatment and the ECtHR (Hart, 2021) is an open access book. It analyses the ‘doctrine of vulnerability’ in the Court’s case law. The work presents an extensive analysis of the case law under article 3 ECHR, including a typology of vulnerabilities, and puts this in the context of the broader case law. The theoretical framework of the study builds on the work of Martha Fineman, and on the key concepts of human dignity, substantive equality and judicial empathy. In light of this framework, the study maps the Court’s use of vulnerability doctrine and identifies its strengths and weaknesses. In the final chapter, Heri presents constructive proposals to improve the Court’s vulnerability reasoning.

Jens Theilen’s European Consensus between Strategy and Principle: The Uses of Vertically Comparative Legal Reasoning in Regional Human Rights Adjudication (Nomos, 2021) is also available in open access. It offers a thorough unpacking of how the ‘consensus doctrine’ operates in the Strasbourg case law, as well as critical dissections of the doctrine from multiple theoretical angles.  This work also has a final chapter that presents a constructive alternative. Theilen reimagines the comparative exercise at the heart of the ‘consensus doctrine’ as ‘a reflective disruption of equilibrium’.

Natasa Mavronicola’s Torture, Inhumanity and Degradation Under Article 3 of the ECHR: Absolute Rights and Absolute Wrongs (Hart, 2021) rigorously unpacks the meaning of the concept of an ‘absolute right’. The work presents a clear view of what ‘absoluteness’ should entail for the interpretation of human rights, and develops this view in a critical study of the Court’s case law under article 3 ECHR. She engages in an approach of ‘constructive (re)interpretation’ aimed at coherence and integrity in the case law.

Concretely, the blog symposium will take the shape of an interview triangle among these three scholars. Having read each other’s work, each of the three authors put a number of insightful questions to one of the other authors. The resulting written interviews provide an attractive means to introduce the three monographs, as well as their authors.

To follow up on this symposium, a panel discussion on the topic of ‘Minimalism vs. maximalism? Challenges and future directions in the interpretation of the European Convention on Human Rights‘ will take place on Wednesday, 8 June 2022 at 4 pm CET. It will feature Eva Brems (chair), Corina Heri, Natasa Mavronicola and Jens T. Theilen and pick up on themes covered in this symposium. You can register for the event here.

Writing this introduction, the image that flashes in my mind is that of a wine shop owner putting out the placard ‘Le Beaujolais Nouveau est arrivé!’. Indeed, this basket of three monographs is a bountiful harvest. Based on PhD research, each of these works naturally has its own distinct style and approach. Yet it is no surprise that the authors thought it would be a good idea to jointly present their books, as their work shares a number of key features. One of these is a research design that relies on a combination of theory development and theory-driven case law analysis. The resulting studies are rich in theoretical insights rooted in the Court’s practice, as well as in high-level case law analysis soaked in critical theory.  Another common feature is the broadness of the scope: the analysis that is offered in each of these works concerns a very important part of the Court’s case law – and hence required its author to digest a significant body of case law. Impressively, these studies thus manage to avoid the choice between breadth and depth; they offer both. The third striking commonality, is a critical perspective that is anchored in ambitious visions of justice, rather than cynical realpolitik. Underlying these studies, there seems to be a certain faith in the European Court of Human Rights and its potential for continuous improvement. And possibly also a view of ECHR scholars as constructive allies of the Court for realizing that potential –  critical friends, but friends nevertheless.

Contemplating this harvest of young scholars, I am reminded of how much the study of the ECHR has changed over the years. When I wrote an LL.M thesis on the margin of appreciation doctrine in 1995, the analysis of all relevant case law and literature was something that could easily be done during a one-month winter term, even in pre-internet times. The manageability of the case law corpus and the scarcity of literature that analysed it in-depth facilitated research on cross-cutting issues or adopting a birds’ eye view. It also made it easy for researchers to present work that was original. The lack of a strong body of prior work on which to build was compensated for by the attractive feeling of research as discovery, the exploration of new terrain.

Today’s ECHR researchers are confronted with a completely different situation. One can now build an interesting research career on a relatively small segment of Strasbourg case law, such as religious freedom, media freedom or LGBTIQ+ rights. Such specialization facilitates depth and nuance. On the other hand, the threshold is high for those who choose to study cross-cutting issues or to adopt a holistic view of the ECHR. The sheer number of cases is obviously difficult to stay on top of. The same can be said of the literature, as in addition to the maturing of ECHR studies as a research field, there has been a steep increase in participation from across (and even beyond) Europe in the English-language academic debate. Research such as is presented in this symposium, therefore requires significant resources that are not always available; brains that can efficiently process large amounts of information while at the same time excelling in critical and creative thinking; and a lot of time to cover all that ground. In other words, it is to be expected that many ‘ECHR generalists’ or ‘broad-scope’ ECHR scholars will be PhD researchers or scholars involved in research projects that run over a number of years. In my opinion, it is important to continue to create the conditions in which this type of research can flourish. Ambitious broad-focus approaches – the wood through the trees – do not lose any relevance with the growing quantity and complexity of the case law and its analysis – rather to the contrary.

Not all PhD research is excellent or makes for a good monograph. Yet those whose PhD research does produce excellent work – a category that includes the three authors discussed here – deserve to be recognised as among the best experts in their field. Few other scholars are likely to have a better command of literature and case law than those who have recently completed a study of this scale. So let’s welcome the new harvest: the new Beaujolais has arrived and is warmly recommended for your tasting!