Author Interview: When Human Rights Clash at the European Court of Human Rights: Conflict or Harmony?

Eva Brems & Stijn Smet

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

Professor Eva Brems and Dr. Stijn Smet tell us about their new edited collection, When Human Rights Clash at the European Court of Human Rights: Conflict or Harmony? (Oxford University Press, 2017).

Tell us a little bit about the volume

The volume deals with clashes of human rights in the case law of the European Court of Human Rights. It seeks to provide both theoretical and practical answers to two sets of questions. The first set of questions tackles the very existence of human rights clashes. Can human rights really conflict with one another, in the sense of mutual incompatibility? Or should they be interpreted in harmony with one another? The second set of questions deals with the resolution of real clashes. If and when human rights do conflict, how should such conflicts be resolved? To what extent is balancing desirable? And if it is, which understanding of balancing should judges employ? The volume discloses reasonable disagreement and provides concerted scholarly debate on all these questions.

What inspired you to take up this project?

The book project was intimately tied to the PhD research of one of us (Stijn), supervised by the other (Eva). Stijn’s PhD research has been published in the form of a monograph, in Resolving Conflicts between Human Rights: The Judge’s Dilemma (Routledge, 2017). But we also organized a seminar to disseminate the research findings and fill in some key blind spots. This edited volume is the result of that seminar. We were very fortunate to have a great roster of speakers at the seminar, most of whom would later contribute to the volume. We also benefited immensely from having European Court of Human Rights Judges, including its then President, comment on the delivered papers. The combination of concerted scholarly debate and critical feedback from ECtHR Judges at the seminar has been vital in shaping the quality of the volume (and we hope it shows).

What did you aspire to in this project?

We really wanted to deliver more than a loose collection of vaguely related chapters. So we designed the volume with a sense of purpose in mind. We structured the book in two distinct, but interrelated parts. We asked contributors to the first part to provide general approaches to human rights clashes against the backdrop of the wider case law of the ECtHR. These insightful general approaches – ranging from the abstract-theoretical to the practical-concrete – frame the discussion of specific conflicts in the book’s second part. In the second part, we wanted to provoke genuine debate. So we paired authors up to discuss specific human rights clashes, framed by leading judgments of the ECtHR (e.g. defamation and Axel Springer v Germany or the desirability of a European ‘ministerial exception’ and Fernández Martínez v Spain). We deliberately selected contributors who would put forth contrasting views on the same human rights clash and ECtHR judgment. And on this, we think, our contributors have more than delivered.

Whose work was influential on you throughout the course of the project?

That is an excellent, but tricky question. Since we are talking about an edited volume, we only feel competent to speak in terms of editorial influences. Two, in particular, stand out. The first is a 2008 volume edited by one of us (Eva) on conflicts between fundamental rights. That volume was one of the first books devoted to human rights conflicts. Because it was one of the first, it aimed to provide a broad overview of the state of the art, along with important critical reflections. Nearly a decade later, we felt the time was ripe for a more concerted and focused effort.

A second important influence, especially for the junior scholar among us (Stijn), was Joseph Weiler’s advice in his ‘On My Way Out’ series on EJIL: Talk!. We are fairly confident we have not added to the pile of “Unedited Books” Weiler warns about in his thoughts on edited volumes. We avoided part of the trap by designing the volume with a specific idea and structure in mind, as explained above. But we also feel we have heeded Weiler’s advice in a number of other ways. For instance, we provided all contributors with detailed and critical feedback on their draft chapters, urged them to engage with arguments in the other chapters and encouraged them to insert cross-references to other contributions in the book (and they have certainly delivered on this). And in writing the introduction, we largely rejected the roadmap-style approach. The introduction also does not compile abstracts of the chapters. Instead, it draws on all chapters to piece together important insights and key arguments scattered across the book. We believe this makes for a substantive introduction that adds significant value to the book, as does the book’s conclusion (and we hope we have succeeded). And yes, thanks to the publisher we ended up with a wonderful piece of artwork on the cover!

What challenges did you face in editing the volume?

Many! But just to focus on one: meeting deadlines. Although we also wrote substantive chapters in the book, we tried to put at least as much energy into facilitating the book’s production. As editors, we had to come to terms with our lack of control over contributors’ personal working styles and agendas. Some contributors consistently sent in their pieces well before our deadlines (no reminders needed). Most would send their work in just on time (after the first, ‘pre-emptive’ reminders). And still others tended to miss all deadlines, sometimes by rather wide margins (after repeated – and increasingly stern – reminders, written from the editorial illusion that our book should somehow have priority). This is probably an inevitable challenge to any edited volume. But by inserting buffers – our communicated deadlines were never the real deadlines – and especially by setting aside sufficient time in our agendas for our own tasks, we ended up meeting all deadlines on which we had agreed with OUP. And the book came out exactly as scheduled! To the extent that we can put a feather on our editorial cap for this, it is mostly because we avoided becoming the bottleneck ourselves.

What do you hope to see as the volume’s contribution to academic discourse and to constitutional or public law more broadly?

First off, we hope this will be one of the (perhaps few) edited volumes that our academic colleagues will want to read front to back. Unless people are really only interested in one of the specific judgments discussed in the book, it is not – we believe at least – an edited volume that makes for cherry-picked reading. It is certainly not designed as such. But we are of course happy for the book’s readers to do as they like. If we think about the book’s contribution, we hope it will become the scholarly go-to volume on conflicts between human rights (along with a number of other important books, both by ourselves and others). We hope it will inspire teaching (we think it is especially suited to facilitate classroom debates). We hope it will inspire fellow academics to delve even deeper into (specific) human rights clashes in their research. And while we are being so bold as to ask for the world, we hope it will also prove of immediate interest to the ECtHR (and perhaps also other courts) in tackling human rights conflicts in their judicial practice.

What’s next?

Publication of this co-edited volume was a bittersweet moment. The book marks both an ending and a beginning for both of us. It is probably the last publication to come out of a European Research Council project on the legal reasoning of the ECtHR (of which Eva was the PI and on which Stijn was a PhD researcher). Stijn has since taken up a postdoctoral research position at Melbourne Law School, as part of the Laureate Program in Comparative Constitutional Law. His new research project analyses the role and function of concepts like tolerance, respect and recognition in the comparative constitutional interpretation of religious freedom. Eva always has several balls in the air. Currently, her biggest project is an interdisciplinary collaboration with psychologists and sociologists on procedural fairness in local multicultural conflicts. She keeps a strong research line going on the European Court of Human Rights, which feeds both into and off the blog Strasbourg Observers.