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

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, Postdoctoral Fellow at Melbourne Law School,Eva Brems, Professor of Human Rights Law, Ghent University

Introduction - Conflicts of Rights in Theoretical and Comparative Perspective, Stijn Smet
Part I - General Approaches
1. Human Rights in Relation - A Critical Reading of the ECtHR's Approach to Conflicts of Rights, Samantha Besson
2. Conflicts between Human Rights and the ECtHR: Towards a Structured Balancing Test, Stijn Smet
3. Conflict and Consent: Does the Theory of Waiver of Fundamental Rights Offer Solutions to Settle Their Conflicts?, Sebastien Van Drooghenbroeck
Part II - Specific Conflicts
4. Evans v UK: Three Grounds for Ruling Differently, Eva Brems
5. The Comedy of Mrs Evans, Lorenzo Zucca
6. To Discriminate in order to Fight Discrimination: Paradox or Abuse?, Dolores Morondo Taramundi
7. The Future of Religious Freedom, Russell Sandberg
8. Freedom of Expression versus Privacy and the Right to Reputation, Dirk Voorhoof
9. Circumnavigating the Conflict Between the Right to Reputation and the Right to Freedom of Expression, Leto Cariolou
10. Fernandez Martinez v Spain: An Unclear Intersection of Rights, Javier Martinez-Torron
11. Reversibility, Proportionality, and Conflicting Rights: Fernandez Martinez v Spain, Ian Leigh
Conclusion - Conflicting Views on Conflicting Rights, Eva Brems