The ECtHR’s landmark judgment in the case Verein KlimaSeniorinnen Schweiz and Others v. Switzerland contains novel findings on procedural and substantive aspects of human rights protection in the climate change context. To reconcile effective protection of Convention rights with the exclusion of actiones populares, the Court set a high threshold for the individual applicants’ victim status while applying mostly formal criteria to the locus standi of the applicant association. On this count, only the association’s application was admissible. On the merits, the Court found violations of Articles 8 and 6(1) ECHR because Switzerland failed to comply with its positive obligation to protect individuals from the adverse effects of climate change and its courts did not engage seriously with the applicant association’s action. This case note takes a closer look at the ECtHR’s interpretation of standing for individuals and associations and discusses its (non-)alignment with previous case law. In particular, it reflects on the Court’s implicit understanding of the concept of victim in KlimaSeniorinnen and explores whether allowing representative standing is justified based on the Court’s existing case law. The case note concludes with an outlook on the enforcement of collective human rights issues through associations.

The European Court of Human Rights has long been cast as a defender of democracy in Europe. Yet, this idea has not always been at the core of the Court’s perception in the literature or indeed aligned with its jurisprudence which are often viewed in more Dworkinian terms. We suggest that there are good reasons, however, to take this idea more seriously in line with some of the early discussions on the function of the Convention. We argue that a good way to flesh out this idea is by drawing on the recent discussion on comparative representation reinforcement, sometimes labelled comparative political process theory, which builds on earlier work by US constitutional theorist John Hart Ely. Such an – expanded and updated – Elyian approach, we believe, has much to offer not just for domestic constitutional courts around the globe, but also for a supranational human rights court such as the ECtHR. We spell out what this might mean for the Court’s jurisprudence with reference to a few key areas of jurisprudence and the protection of minority rights in particular and sketch some implications for when to exercise restraint and when to intervene in a robust manner.

The EU Return Directive demands that immigrant detention be as short as possible, but, by logical implication, this also means that detention can be as long as necessary. What concerns the maximum length of detention, the Return Directive is remarkably generous: Immigrants can be detained for a period of up to eighteen months—a deprivation of liberty that is otherwise justified only as punishment for serious crimes. The practice of such long-term detention, now burgeoning, is highly questionable for moral, practical, and—our focus—legal reasons.

The European Convention of Human Rights (ECHR) provides the relevant yardstick. While discussions on the legality of immigrant detention have focused on requirements of necessity, we shift attention towards the surprisingly absent question of maximum duration. Our analysis delves into the drafting context of the ECHR to reveal that it only authorizes the pre-removal detention of immigrants for markedly short periods. Picking up the interpretative canon of the regime, we note that meanings can of course change, but we argue that it is a legal mistake to consider that long-term detention is now sanctioned by the Convention.

Insights from Social Network Analysis reveal that the structure of the social network surrounding international courts is important for these courts’ ability to secure compliance with their judgments and by this to initiate social change. International courts like the European Court of Human Rights (ECtHR) invest growing resources in shaping their networks, recognising that these networks are necessary tools that can help them to influence society. This paper will focus on the ways social network analysis can facilitate a better understanding of the ECtHR. The paper explains how certain characteristics of the network surrounding the ECtHR determine the ultimate social impact of the court.

The question of when and how a European consensus or trend contributes to shaping rights guaranteed by the European Convention on Human Rights and its Protocols is controversial. The European Court of Human Rights quite often performs an analysis of the laws and practices of the Council of Europe’s Member States or of relevant international material. However, the cases where rights have actually been shaped by a European consensus or trend are quite rare. In the last twenty-five years, some 27 out of 424 judgments on the merits of the Grand Chamber of the Court established a consensus or trend having a “shaping impact” on these rights. Further, only one advisory opinion based on Protocol No. 16 contained comparative law material having such an influence. This Article assesses the intensity of the impact of a consensus or a trend analysis on a judgment’s or an advisory opinion’s ratio decidendi, shows what shaping a right actually means, and suggests that cases that are more prone to a potentially persuasive consensus or trend analysis will typically deal with matters of political or general policy, sensitive moral or ethical issues, or changes in the case law.

This paper analyses the growing litigation before the European Court of Human Rights (ECtHR) by conservative European Non-governmental Organizations (NGOs) who exploit legal opportunities and other advocacy tactics. These actors oppose the liberal insistence on permissive individual freedom, minority rights and mandatory vaccination. Instead, they promote the sanctity of life, traditional values and harsh terrorism penalties. In this study we show that conservative legal mobilisation is not only related to litigation but also covers the execution of certain ECtHR judgments and the nomination of some European judges. We analyse their tactics using legal and sociolegal methodology (interviews, analysis of legal documents and jurisprudence and network analysis) to characterise their influence on the European human rights system and the reactions of the Council of Europe. We reflect on the moral values claimed by conservative NGOs and their liberal counterparts by analysing how powerful private actors, driven by material and moral interests, take creative initiatives that shape or reshape case law and its politicisation through alliances with so-called ‘illiberal’ and ‘populist’ states.

The employment of cutting-edge technology in the European Union's external border management is transforming the way that States acquire control over seaborne migrants and deconstructing traditional conceptions of border and territory. This article sheds light on a new generation of human rights violations on the high seas, where people's rights become contingent on their geographical location which is increasingly traceable by monitoring bodies. Amidst the burgeoning phenomena of abandonment at sea and contemporary forms of migrant push-backs, this article contends that human rights jurisdiction ought to be reconceptualized in functional terms to capture new modalities of State power, that if and when exercised, can amount to effective control, triggering a State's human rights obligations.

This article argues that the current approach of the European Court of Human Rights (ECtHR) to evaluating scientific evidence is lacking and hampers its ability to properly handle cases involving questions of science, and particularly environmental cases which are replete with them. It identifies three problem areas in relation to the ECtHR's adjudication of such cases: the evaluation of evidence proving the causation of harm; the extent of the Court's deference to the determinations made by national authorities; and the Court's evaluation of evidence adduced by the respondent State in justifying its conduct as being in line with the standard of due diligence. Several cases that illustrate the recurring problem of the lack of science-based reasoning in the Court's judgments are then identified, highlighting the shortcomings of its approach. Such issues have an impact upon the legitimacy of the ECtHR, and it is therefore imperative that it engages more robustly with scientific evidence. The article suggests the best way to do this would be for the ECtHR to make more use of its power to seek assistance from independent scientific experts in environmental cases.

Nudging is a policy tool that steers people’s behavior through noncoercive psychological pushes. This has consequences for people’s lives to varying degrees. For example, the nudge of a sticker of a fly in a urinal encourages peeing inside a urinal, while an organ donation default brings people to agree to donating their organs after their decease. Governments do not yet systematically examine which nudges have to be subjected to all safeguards of the rule of law—for example, parliamentary control, judicial review, or compliance with legal principles such as proportionality. This article argues that a legal doctrine is necessary to carry out this examination. Moreover, it contributes to the development of such a doctrine, using the approach of the European Court of Human Rights as a source of inspiration. The doctrine consists of a “de minimis” principle for nudges: Public institutions only need to ensure that a nudge complies with rule of law safeguards when the nudge has substantial consequences. In addition, the doctrine includes a criterion to determine which nudges have such substantial consequences. In particular, it is argued that a nudge should be subjected to at least some safeguards when it has a serious effect on people’s autonomy.

The relationship between scholarship and adjudication has attracted considerable attention in recent years, especially in those areas where significant academic expertise has been developed and academic scrutiny of decisions is common. Yet the role of scholars and scholarship in the context of the adjudicatory practices of the European Court of Human Rights (ECtHR) has remained palpably under-investigated. This article begins to fill this gap in the literature by carrying out the first large-scale empirical study of the use of scholarship by the ECtHR. The authors rely on a purpose-built dataset comprising all the citations made by the Grand Chamber of the Court in judgments and separate opinions appended to it. The study finds that the Court's majority uses scholarship for the purposes of reviewing facts and interpreting international and domestic law but does so rarely. The majority of the ECtHR does not use scholarship to interpret the European Convention on Human Rights or for persuasive purposes, unlike the individual Judges in their separate opinions. Indeed, individual Judges refer to scholarship more often, for more varied and arguably different purposes. This use, however, is inconsistent in terms of both frequency and the types of sources referred to.

It is now over ten years since the European Court of Human Rights (ECtHR or Court) first established that asylum seekers are inherently and particularly vulnerable on account of their very situation as asylum seekers. This occurred in its Grand Chamber judgment in the case of M.S.S. v Belgium and Greece. This article critically examines the Court’s subsequent asylum jurisprudence through the lens of vulnerability. The analysis reveals that the Court has engaged in ‘vulnerability backsliding’. Specifically, it traces the ways in which the Court has surreptitiously reversed the very principle of asylum vulnerability it itself established in M.S.S. The consequence of this backsliding is not only that the judicially recognised concept of asylum vulnerability is undermined, but that some of the most vulnerable applicants that come before the Court suffer renewed marginalisation, and, in some circumstances, exclusion from the ‘special protection’ to which they were previously afforded courtesy of M.S.S.

The concept of a systemic fundamental rights violation refers to a particular set of violations that are both widespread and embedded, so their reoccurrence may be assumed to be likely. It takes on at least two distinctive roles in EU asylum law and policy. One role is linked with the functioning of the principle of mutual trust, a principle that obliges Member States to recognise each others’ systems and decisions, presuming them to be legal, apart from exceptional cases. In this context, the principle sets the standard from when the presumption of legality is rebutted. In its conceptualisation and application, it is in tension with European human rights law, and, for a period, set up frictions between the CJEU (in NS/ME and Opinion 2/13) and the ECtHR (in MSS and Tarakhel). This tale of judicial frictions is not merely of historical interest. Its legacy is, we conclude, a thin concept of systemic breach, characterised by an over-individualized approach to assessing the human rights risks. The second role for the concept of systemic violations relates to embedded violations, including at the EU’s external borders. We demonstrate the utility of this other invocation, in particular as systemic breaches often signal deeper rule of law issues both within particular national systems and embedded within the Common European Asylum System (CEAS). We illustrate that the CEAS itself brings about systemic human rights violations. Identifying and responding to the “systemic” in asylum increasingly relates to the credibility of the EU as a Union based on the respect for fundamental rights and the rule of law.