New Book: When Human Rights Clash at the European Court of Human Rights – Conflict or Harmony?

We are pleased to announce the recent publication of When Human Rights Clash at the European Court of Human Rights: Conflict or Harmony? by Oxford University Press (Stijn Smet and Eva Brems, eds). The volume tackles both the existence and resolution of human rights conflicts at the ECtHR. It contains contributions by Samantha Besson, Eva Brems, Leto Cariolou, Ian Leigh, Javier Martínez-Torrón, Dolores Morondo Taramundi, Russell Sandberg, Stijn Smet, Sébastien Van Drooghenbroeck, Dirk Voorhoof and Lorenzo Zucca. In the book’s first part, contributors propose a range of general approaches to human rights clashes. In its second part, they engage in concerted scholarly debate about four leading ECtHR judgments on human rights conflicts: Axel Springer AG v. Germany; Evans v. The United Kingdom; Fernández Martínez v. Spain; and Eweida v. The United Kingdom.

This is the volume’s description:

The notion of conflict rests at the heart of the judicial function. Judges are routinely asked to resolve disputes and defuse tensions. Yet, when judges are called upon to adjudicate a purported conflict between human rights, they face particular challenges and must address specific questions. Some of these concern the very existence of human rights conflicts. Can human rights really conflict with one another, in terms of mutual incompatibility? Or should human rights be interpreted in harmony with one another? Other questions concern the resolution of real conflicts. To the extent that human rights do conflict, how should these conflicts be resolved? To what extent is balancing desirable? And if it is desirable, which understanding of balancing should judges employ? This book seeks to provide both theoretical and practical answers to these questions. It debates both the existence and resolution of human rights conflicts, in the specific context of the case law of the European Court of Human Rights. The contributors put forth principled and pragmatic arguments and propose theoretical as well as practical approaches, whilst firmly embedding their proposals in the case law of the European Court. Doing so, this book provides concrete ways forward in the ongoing debate on conflicts of rights at Europe’s human rights court.

Readers of the Strasbourg Observers Blog can use promotional code ALAUTHC4 to receive a 30% discount when ordering the book directly from the OUP website (only for individual (non-trade) customers; limit of ten copies; valid until 31 December 2017).

One-way ticket to Sudan: standard-setting, yet disconnection between reasoning and outcome in N.A. v. Switzerland?

By Ellen Desmet, assistant professor of migration law at Ghent University

On 30 May 2017, the European Court of Human Rights decided two cases regarding the expulsion of rejected asylum seekers by Switzerland to Sudan. In A.I. v. Switzerland, the Court held unanimously that there would be a violation of Articles 2 and 3 ECHR in case of implementation of the deportation order, whereas in N.A. v. Switzerland the Court, also unanimously, did not find a conditional violation of these provisions.

The judgments (only in French) deserve a blogpost for at least two reasons. First, the Court explicitly sets out criteria in order to assess the risk of ill-treatment of political opponents when returned to Sudan. Second, the legal reasoning in N.A. v. Switzerland seems to hold potential for improvement. This post does not aim to question the outcome in N.A.: even though many aspects of A.I. and N.A. run parallel, there are important factual differences that may justify finding a violation in one case but not in the other. It does take issue with the way this outcome is arrived at in N.A. v. Switzerland. Continue reading

The Best and Worst ECtHR judgments of 2016 are…

Dear readers,

We are happy to announce the results of our poll on the best and worst ECtHR judgment of 2016. For an overview of the shortlist of candidates, including a motivation for selecting them, see our previous blog post published on the occasion of the opening of the polls.

In light of the recent Oscars ceremony fiasco, we have made sure to double-check all votes. In the category of best judgment, the winner is… Continue reading