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.

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.

The European Convention on Human Rights allows its Contracting Parties to submit third-party interventions. This paper analyses the reasons for engagement of the states with the European Court of Human Rights beyond what they are strictly expected to do: respond in contentious cases and execute judgments. It is argued here that the states mainly engage with the Court for the purposes of self-interest. This paper fills the gap in the literature by substantiating this claim using empirical methods of content analysis of the case law and research interviews with the governmental representatives. Finally, this paper looks at the impact of third-party interventions on the Court's reasoning and concludes that the Court is aware of the aims of the national governments and bears those aims in mind.

The European Court of Human Rights has often been criticized for lacking clarity and consistency in its reasoning of balancing human rights against conflicting public interests. To reconcile national security with human rights protection, the Court requires the interference with rights to be suitable for reaching the objective purported by the government. In this article I deal with how the Court conducts the suitability test in national security cases, in line with two models under which a few representative test considerations can be categorized: human rights priority model and national security priority model. To explain how each model works in a comparable sense, I follow the same analytic structure and examine the manner of the Court’s test and the intensity of its scrutiny. I argue that in compliance with the two models, the Court applies the suitability test in a consistent and predictable way in national security case law.

In June 2022, the Supreme Court of the United States overturned Roe v. Wade. The European Court of Human Rights is also expected to decide on several abortion cases. In this paper, the interpretative approaches of both courts are compared. Whereas the U.S. Supreme Court in Dobbs v. Jackson Women’s Health Organization decided on an originalist approach to the Constitution, the highest European court has always regarded the European Convention on Human Rights as a living instrument. As a result, domestic laws regulating the interruption of pregnancy are seen by the Strasbourg court as interferences with a fundamental right, the right to respect for private life. Although member states of the Council of Europe enjoy a wide margin of appreciation with regard to the circumstances in which abortion will be permitted, its highest court put forward the state’s positive obligation to secure pregnant women’s right to effective respect for their physical and psychological integrity in several landmark judgments. In this way, it ensures the existence of effective mechanisms in countries with a poor record of implementing the right to a lawful abortion. Albeit at a minimum, the Strasbourg court offers protection, whereas the U.S. Supreme Court no longer does.