The newest issue of the Human Rights Law Review (vol. 13, issue 3, September 2013) has been published. Its contents include the following ECHR-related articles (one of which I have mentioned before):
* Stijn
Smet, ‘Conflicts between Absolute Rights: A Reply to Steven
Greer’
Can absolute rights conflict? Is it permissible to torture a person to
save others from torture? And what can judges learn from trolleys? In this
article, presented as a reply to an article by Steven Greer, I investigate the
above questions in the context of the case law of the European Court of Human
Rights. Drawing on Gäfgen v Germany, I construct a hypothetical case of
conflicting absolute rights, which cannot be resolved by the existing strands of
legal reasoning in the case law of the Court. Instead, I argue, recourse must be
had to moral reasoning. In discussing one of moral philosophy’s deepest
conundrums—the Trolley Problem—I rely on the distinction between negative and
positive obligations and between direct and indirect agency to unravel the
dilemma. Translating the moral argument into legal reasoning, I conclude that in
cases of conflicts between absolute rights, negative obligations principally
trump positive obligations.
* Virginia
Mantouvalou, ‘Labour Rights in the European Convention on Human
Rights: An Intellectual Justification for an Integrated Approach to
Interpretation’
Labour rights have been neglected in human rights law. Classified
usually as social rights, they have been excluded from key human rights
conventions. Recently, the European Court of Human Rights has developed a
technique, known as an ‘integrated approach to interpretation’, because it
integrates social and labour rights in the European Convention on Human Rights.
The first part of this article presents case law and debates on the adoption of
this technique, and also discusses the example of Canada, where similar
developments are taking place. It finds controversy in literature, and
uncertainty in judicial decision-making. The second part, therefore, develops a
normative justification for the integrated approach in interpreting labour
rights. This is based on freedom, a key value underlying civil and political
rights. Negative accounts of freedom are inadequate, though, for reasons that
the article explains. Instead, it analyses positive freedom in light of the
theory of capabilities, which leads to the collapse of sharp divisions between
groups of rights. A positive account of freedom as capability requires
the protection of labour rights under the European Convention on Human Rights,
and leads to the development of important principles on human rights at work.
* Megan
Pearson, ‘Article 9 at a Crossroads: Interference Before and
After Eweida’
Freedom of conscience and religion is probably unique in its potential to
challenge almost every area of law. Since society contains a multitude of
religious and moral beliefs, many religious people will constantly be faced with
practices with which they disagree and will in a myriad of ways be constrained
from living an ideally religious life. Not all of this can constitute an
interference with the right under Article 9 of the European Convention on Human
Rights (ECHR) to manifest belief ‘in teaching, practice and observance’.
However, the European Court of Human Rights’ (‘the Court’) approach has
historically been unnecessarily restrictive in considering whether an
interference under Article 9(1) exists, thus shutting out cases at an early
stage of reasoning and before justification is considered under Article 9(2).
This approach has been narrowed even further by the British courts.
