GoJIL Vol. 12, No. 1 (2022)
Of Dark Clouds and Their Silver Linings: Crisis as Opportunity in the Economic and Social Rights Jurisprudence of the European Court of Human Rights
Caroline Omari Lichuma
Abstract
We live in a world in crisis.
These crises are experienced globally, regionally, by individual States and mostly
by individuals themselves. Despite our differences, we are all united by crisis.
However, adopting a regional outlook, this paper focuses on Europe, which,
like much of the rest of the world, has in recent times been buffeted by multiple
crises ranging from the financial and economic crisis that begun in 2008, to the
climate change crisis, to the migrant and refugee crisis, to the Brexit crisis, to the
COVID-19 pandemic that has rocked the entire globe.
In times of crisis, it is commonplace to turn to legal and institutional frameworks
in the hopes of finding some reprieve. Within Europe, one such institution is
the European Court of Human Rights (ECtHR). This Court, also known as
the Strasbourg court, was established in 1959 under Article 19 of the European
Convention on Human Rights (ECHR). Despite its primarily Civil and Political
Rights (CPRs) mandate, the ECtHR has in numerous cases proven to be fertile
ground for planting the seeds of Economic and Social Rights (ESRs) protection,
which is/was inevitable, given the widely accepted indivisible, interdependent
and interrelated nature of all human rights, whether CPRs or ESRs.
The ECtHR explicates that “the Convention is a living instrument which […]
must be interpreted in the light of present-day conditions.”
In the present day
conditions of numerous crises that have only exacerbated the already precarious
conditions of numerous vulnerable rightsholders in the family of European
States, the question then becomes what jurisprudential trends, prospects
and pitfalls exist for the ECtHR in its dynamic interpretation of the ECHR
to include ESRs. In seeking answers to this question, this paper analyzes the
ESRs jurisprudence of the ECtHR with the intention of illuminating how the
Court has, and ought to utilize its institutional role as an enforcer of human
rights in general and ESRs in particular in the quest to mitigate the effects on
rightsholders, of the crises being experienced within Europe. At the heart of
this inquiry lies the assertion that in line with the ECtHR’s ESRs jurisprudence
thus far, which evinces a willingness on the part of the Court to vindicate ESRs
in order to bring these rights to life for the vulnerable rightsholders who
need them the most,
the myriad crises currently plaguing Europe continue to
create opportunities for the ECtHR to craft a principled and consistent ESRs
jurisprudence while simultaneously respecting the margin of appreciation
enjoyed by the respective European States.
This paper does not analyze State responses under Article 15 of the ECHR,
which specifically allows the High Contracting Parties to derogate from their
obligations under the Convention in times of war or other public emergency
threatening the life of the nation. Rather, the analysis will be restricted to the
ESRs jurisprudence of the ECtHR in times of the specific crises outlined below
and where the States in question have not made an Article 15 derogation.
The paper will proceed in three parts. Part A will give a brief overview of how
the ECtHR has vindicated ESRs through its interpretation of the primarily
CPRs found in the ECHR. Part B will thereafter briefly analyze three specific
crises that have shaped the more recent ESRs jurisprudence of the Court: the
financial and economic crisis, the migrant and refugee crisis and the COVID-19
pandemic. Finally, Part C will offer some tentative recommendations on the
way forward, arguing that while some progress has been made by the ECtHR
in centering ESRs as a very necessary part of its response to contemporary
European and global crises, the battle is far from won.
Keywords:
European Convention on Human Rights (ECHR); European Court of Human
Rights (ECtHR); Economic and Social Rights (ESRs); Crisis
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