The European Court of Human Rights and the Theoretical Crisis of Human Rights
2-3 September 2021
School of Law, University of Glasgow
Dr Alain Zysset Dr Bosko Tripkovic
Senior Lecturer, University of Glasgow Senior Lecturer, University of Birmingham
It has become a commonplace to argue that human rights are in a state of crisis. This crisis does not only pertain to the social, legal, and political challenges to the protection of human rights, but also to the increased scepticism about the legitimacy, effectiveness, and functioning of the institutions which are called to protect them. As one of the leading human rights institutions in the world, the European Court of Human Rights (ECtHR) has not been immune to such criticisms. A range of actors and stake- holders – including legal scholars, judges, politicians, and the media – have questioned the very existence of the Court, targeted particular aspects of its institutional structure, and probed particular areas of the Court’s case law (and, sometimes, focused on only one adverse judgement, e.g. the Hirst case in the UK). These pressures have affected the law-making domain and have materialised in, for example, the explicit re-affirmation of the principle of subsidiarity and the margin of appreciation in Protocol 15. Yet, there is another strand of critique that pulls in the opposite direction: in academic and policy circles, it is common to criticise the Court of watering down the protection of human rights through its deferential doctrines and the lowest-denominator approach to human rights standards. In the view of many commentators and practitioners, the Court is not doing too much but, conversely, far too little.
This ambivalence is telling of a more fundamental, theoretical crisis: the crisis of the idea of human rights. The disagreement in the assessment of the Court and its role is often a consequence of different understandings of the nature and normative foundation. This workshop thus aims to address the pressing and under-explored issue of the theoretical crisis of human rights in the context of the European Court of Human Rights. It has two interconnected goals. First, it aims to contribute to a better understanding of the philosophical foundations of the ECHR.
The main purpose of the workshop is to investigate how the philosophy of human rights can help illuminate and address the crisis of human rights in the European context with a view to offering a philosophically-informed response to it. For example, the wide usage of consensus by the Court echoes the terms of the political conception of human rights in that it makes the content and scope of a right contingent upon social, institutional, inductively obtained, and distinctively European facts about human rights. Would the very idea of human rights be endangered if the Court were – under various pressures – to extend its consensus-based reasoning to wider areas of its case-law? Similarly, while the moral-political divide has been used to illuminate the proportionality test of constitutional and other regional courts (e.g. the CJEU), normative theorists have not yet used this perspective to assess the proportionality analysis in the context of the ECtHR. What would the implications of the moral- political debate be for the ECtHR’s use of proportionality test?
Second, the workshop aspires to enrich the philosophical debate about the nature of human rights by drawing attention to the actual functioning of a leading human rights court and to complex implementation mechanisms within and by state parties. The philosophers of human rights have not yet systematically explored the European system of human rights protection, while more doctrinal- inclined scholars have not made use of the philosophical work in appraising the Court’s practice. In order to adequately tackle the question of theoretical crisis of the idea of human rights in the European context, one should combine the knowledge of the European system with a cutting-edge understanding of the philosophical accounts of human rights. The workshop thus aims to bridge the gap between the two fields of scholarly inquiry: philosophical and doctrinal. To this end, the workshop organisers have invited scholars different disciplinary orientations and levels of seniority with a view to gathering a critical mass of interdisciplinary scholarship on this topic and identifying avenues for further research cooperation.
If you are interested in joining the Workshop online – via Zoom, please contact Dr Alain Zysset (firstname.lastname@example.org ) to request the Zoom log-in details.
Thursday, Sept. 2
9.15-9.30 Welcome remarks (Alain Zysset and Bosko Tripkovic)
9.30-10.30 Keynote: Andreas Føllesdal: “Fragmentation and Integration for Better and Worse: Assessing the Doctrines of a Margin of Appreciation and of the Emerging European Consensus”
10.30-11.30 Adam Etinson (comments: Silje Langvatn)
11.30-12.00 Coffee break
12.00-13.00 Corina Heri with (comments: Janneke Gerards (online))
13.00-14.00 Lunch break
14.00-15.00 Başak Çalı (online) (comments: Bosko Tripkovic)
15.00-16.00 Lorenzo Zucca (comments: Corina Heri)
16.00-16.30 Coffee break
16.30-17.30 Alain Zysset and Bosko Tripkovic (comments: Lorenzo Zucca)
Friday, Sept. 3
10.00-11.00 Silje Langvatn (comments: Kai Möller)
11.00-11.30 Coffee break
11.30-12.30 Kai Möller (comments: Marco Goldoni)
12.30-14.00 Lunch break
14.00-15.00 Steven Wheatley (comments: Lea Raible)
15.00-16.00 Lea Raible (comments: Başak Çalı (online))
16.00-16.30 Coffee break
16.30-17.30 Alon Harel (comments: Steven Wheatley)
17.30-18.00 Closing remarks/publication project discussion (Alain Zysset and Bosko Tripkovic)