ISBN : 9780198795957
The notion of conflict rests at the heart of the judicial function. Judges are routinely asked to resolve disputes and defuse tensions. Yet, when judges are called upon to adjudicate a purported conflict between human rights, they face particular challenges and must address specific questions. Some of these concern the very existence of human rights conflicts. Can human rights really conflict with one another, in terms of mutual incompatibility? Or should human rights be interpreted in harmony with one another? Other questions concern the resolution of real conflicts. To the extent that human rights do conflict, how should these conflicts be resolved? To what extent is balancing desirable? And if it is desirable, which understanding of balancing should judges employ? This book seeks to provide both theoretical and practical answers to these questions. When Human Rights Clash at the European Court of Human Rights: Conflict or Harmony? debates both the existence and resolution of human rights conflicts, in the specific context of the case law of the European Court of Human Rights. The contributors put forth principled and pragmatic arguments and propose theoretical as well as practical approaches, whilst firmly embedding their proposals in the case law of the European Court. Doing so, this book provides concrete ways forward in the ongoing debate on conflicts of rights at Europe's human rights court.
Stijn Smet: Introduction - Conflicts of Rights in Theoretical and Comparative Perspective
Part I - General Approaches
1 Samantha Besson: Human Rights in Relation - A Critical Reading of the ECtHR's Approach to Conflicts of Rights
2 Stijn Smet: Conflicts between Human Rights and the ECtHR: Towards a Structured Balancing Test
3 Sebastien Van Drooghenbroeck: Conflict and Consent: Does the Theory of Waiver of Fundamental Rights Offer Solutions to Settle Their Conflicts?
Part II - Specific Conflicts
4 Eva Brems: Evans v UK: Three Grounds for Ruling Differently
5 Lorenzo Zucca: The Comedy of Mrs Evans
6 Dolores Morondo Taramundi: To Discriminate in order to Fight Discrimination: Paradox or Abuse?
7 Russell Sandberg: The Future of Religious Freedom
8 Dirk Voorhoof: Freedom of Expression versus Privacy and the Right to Reputation
9 Leto Cariolou: Circumnavigating the Conflict Between the Right to Reputation and the Right to Freedom of Expression
10 Javier Martinez-Torron: Fernandez Martinez v Spain: An Unclear Intersection of Rights
11 Ian Leigh: Reversibility, Proportionality, and Conflicting Rights: Fernandez Martinez v Spain
Eva Brems: Conclusion - Conflicting Views on Conflicting Rights