When Human Rights Clash at the European Court of Human Rights

Conflict or Harmony?

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Editor(s): 
Stijn Smet, Eva Brems
  • Oxford, England: 
    Oxford University Press
    , September
     2017.
     288 pages.
     $90.00.
     Hardcover.
    ISBN
    9780198795957.
     For other formats: Link to Publisher's Website.

Review

Stijn Smet and Eva Brems have assembled an impressive volume that attempts to shed light on two crucial yet challenging questions concerning the European Court of Human Rights (ECtHR). First, how should one understand the theoretical issue of conflicting human rights? Is it possible for human rights to be in conflict with each other? Consider that the Court has stated, on the one hand, that “a constant search for a balance between the fundamental rights of each individual constitutes the foundation of a ‘democratic society,’” while claiming, on the other hand, that “the Convention [i.e., the European Convention of Human Rights] must be interpreted in such a way as to promote internal consistency and harmony between its various provisions” (5). Second, and intimately related to the first question, how should judges decide cases when confronted with what seems to be a conflict of rights?

The contributors do not shy away from expressing their views on whether the four ECtHR cases discussed here—Ladele v. The United KingdomAxel Springer AG v. Germany, Evans v. The United Kingdom, and Fernández Martínez v. Spain—were rightly decided. However, they devote far more attention to the question of how judges could and should reason through and think about cases involving what seem to be conflicting rights. This dual-pronged approach of description and prescription has the benefit of making the book accessible to those whose expertise and interests lie outside the law. The extent to which case law and precedent are discussed in every chapter varies, ranging from merely supplying the relevant context to going into considerable depth, but scholars of religion should not worry that they are in over their heads.

The theoretical issues explored in the first half of the book establish a much-needed framework for situating different authors’ views on the cases in the second half. The book aims to organize the responses to questions of rights conflicts in intelligible, coherent, and constructive dialogue and succeeds in doing so. Instead of paying mere lip service to such a task, the authors often explicitly engage each other’s views, offering nuanced point-by-point arguments. In fact, the editors have even included one author who disagrees with the general premise of the book. Leto Cariolou contends that only “purported conflict[s]” (173) exist because one of the rights claims “does not reflect a genuine exercise” (3) of that right. This chapter is not to be mistaken for a token critical inclusion; Smet underlines the significance of this view—also known as specificationism—because the Court itself has used this kind of language in its case law.

One of the volume’s major selling points is that it grounds its theoretical questions, which require careful and close reading, in specific cases. For example, Axel Springer AG v. Germany pitted a publishing company’s right to freedom of expression against a famous actor’s right to reputation. Or, to get even more complex, take Ladele v. The United Kingdom, a case in which a civil registrar was fired for refusing to register same-sex partnerships on religious grounds. Smet points out that the case “can either be characterized as entailing a purported conflict between non-discrimination rights (religion and sexual orientation) or as indicating tension between freedom of religion and non-discrimination (sexual orientation)” (1). 

How should one decide which normative claim should trump another? Or can they be thought of in non-adversarial and non-conflicting ways? Some of the contributors to this book seek to limit what they argue are actual and legitimate rights conflicts. However, if they cannot be reframed, reconciled, or reconceived, then how does one reason through this dilemma? Can the “veil of balancing” (191) be lifted to provide greater transparency into how judges engage in this process? Finally, and arguably most importantly, how does one (specifically, a judge) reason through this problem consistently, systematically, and without falling back on one’s own bias? The authors are acutely aware of this and call for greater consistency and clarity from the ECtHR in deciding these kinds of cases.

In high-profile SCOTUS cases, those waiting for the ruling may search desperately for clues as to how the Justices will decide. Some pore over previous decisions while others perform strained analyses of the Justices’ comments, questions, and reactions in oral argument. Although the editors and contributors to this book are focused on the ECtHR, they share a desire to gain a degree of predictability in how judges decide cases. The attempt to sketch a larger framework of how to think about the concept of conflicting rights in general is a bold undertaking and the contributors have made significant strides in this regard. Lawyers, law students, scholars, rights advocates, philosophers, ethicists, politicians, and judges would all benefit from considering the issues and the cases that are addressed in this book.

About the Reviewer(s): 

Jeff Gottlieb is a doctoral candidate in the Religion, Ethics, and Philosophy program Florida State University.

Date of Review: 
August 29, 2018
About the Author(s)/Editor(s)/Translator(s): 

Stijn Smet is postdoctoral fellow at Melbourne Law School.

Eva Brems is professor of human rights law, Ghent University.

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