“Working within the human rights field has felt natural to me since I was very young,” says Anaïs Brucher, a PhD researcher in the EUI Department of Law. “I thought, okay, there are at least two ways of doing human rights. I can be a lawyer in the field and tackle legal issues on a daily basis. But I was really afraid of always seeing the same problems coming up and never being able to address their roots.”
Research, she decided, was the second way and the place to focus on those roots. “It’s a bit optimistic and idealistic,” she says, “but I guess I have to embrace it because that’s how I am.”
Her doctoral research explores the idea that every human right has an untouchable core, an “essence” that can never be compromised. Anaïs spent years collecting and classifying 364 European Court of Human Rights judgments to understand how the Court actually uses this concept. What she found was not what she expected.
The Court is widely seen as an influential supranational authority protecting human rights, Anaïs explains. “What the Court does and says impacts many citizens, and it is important that we scrutinise its work to make sure it does it well.”
The concept of “essence”, as Anaïs explains it, works like this: In a democratic society, rights can be restricted to some extent. For example, the police can enter your home with a warrant under some circumstances. Your freedom of expression also has limits. The role of the European Court of Human Rights is to determine whether these restrictions have gone too far or whether they are proportionate. “But the idea of the essence of rights is that each human right you enjoy has an inner core, a very heart, that could never be compromised,” she says.
“Imagine your right as a big circle, and inside the circle you would have a tiny inner circle, and that inner circle could never be taken away from you by anyone,” Anaïs says. “You wouldn't want a state to deprive its citizens from the very heart of their rights, would you?”
The problem, Anaïs explains, is that nobody has ever managed to define what the essence of rights actually contains. “Amongst lawyers, the idea that every right has a heart is quite popular,” she says. “But as soon as someone asks, well, then what do those hearts cover concretely? There is no answer.” The European Convention on Human Rights does not mention the term. Philosophers have debated it for decades without agreeing. Anaïs adds that some scholars have compared it to sugar dissolved in hot milk: You know it is there, but you cannot see it, and the more you search for it, the less you find.
Yet, despite this, the European Court of Human Rights has been basing its rulings on violations of the essence of rights recurrently over the years. “I thought,” she continues, “does it mean the Court has understood something about this notion that philosophers have not?”
Anaïs set out to map how the Court uses the concept in practice. She collected every European Court of Human Rights judgment from 2013 to 2022 that referred to the “essence of rights” or related terms such as “core”, “substance”, or “heart”. She used specific search formulas in the Court’s database, then manually checked each result for relevance. The 364 judgments that remained were classified according to a framework of pre-defined categories and numerous subcategories, using qualitative data analysis tools.
The work demanded skills that law schools do not typically provide. “Lawyers are not really trained to do empirical work,” she says. “I had to learn first how to do it.” In her first year, she worked with her former supervisor, Urska Sadl, who is trained in empirical methods, and that shaped her approach. The daily reality, she recalls, involved months of checking and coding judgments one by one. “It’s very repetitive, but you have to hang in there and remember why you’re doing this,” she says. “That moment where, once it’s collected and classified, you can finally look at the results and try to make some patterns – it’s the most exciting moment ever.”
But the patterns she was hoping for did not appear. She looked for patterns across states, rights, and time periods, but found none. The only modest findings were that the term appeared more often when the Court found a violation of the Convention, and more frequently in relation to the right to a fair trial. For the rest, “the Court does not even attach any specific content to the ‘essence of rights’ in most judgments.”
What she did find, however, were functions — different roles the term plays in the Court's reasoning. The "essence of rights" appears in many different contexts: to assess whether a state restriction on a right is proportionate, to define the scope of application of a specific right, or to shape a state's margin of appreciation. Even if we cannot explain why the Court uses the term, Anaïs shows what it does once it appears in a judgment.
"It is important," she says, "because judgments are all citizens have in their hands to understand their European Convention on Human Rights."
One finding carries a sharper edge. In some judgments, Anaïs identified a pattern where the language of the “essence” might potentially work against the very people it is meant to protect. She describes the reasoning. The Court checks whether the essence of a right has been respected. If it has, the analysis sometimes stops there. Whether the restriction was proportionate is not examined further. “The idea of respecting the essence of a right is the idea of a bare minimum,” she explains. “But once we’ve shown that it’s respected, shouldn’t we still ask whether the measure was proportionate? Sometimes the Court seems to be ready to stop there.”
Anaïs is careful to note that the Court rarely does this explicitly. “I can’t say it has been used directly against us,” she says. “But sometimes the way the Court reasons is so vague that it’s open to dangerous interpretation.”
She points to a 2020 case, Muhammad and Muhammad v. Romania, where individuals holding student visas were deported from Romania on grounds of national security. The students complained that, in the process, they had been given no access to the documents that formed the basis of the decision, and that they received no information about the facts and grounds underlying it. When the case reached the European Court of Human Rights, the Court announced that it was going to check whether “the restrictions by the Romanian authorities were duly justified and counterbalanced such as to preserve the very essence of the applicant’s rights.” The Court ultimately found a violation, and its reasoning was sound. However, the formulation itself is telling: The "essence" appears to be presented as the only condition the state needed to respect. "It is probably not what the Court meant," Anaïs says. "But, it could be reinterpreted that way with a hint of bad faith. That's a dangerous slope.”
At the deepest level of her analysis, Anaïs identifies what she calls an oscillation. The Court sometimes treats the “essence” as a “hard core”: fixed, context-independent, immune to balancing. At other times, it treats it as a “soft core”: flexible, shaped by the circumstances of each case. “These are two big different schools of understanding human rights protection,” she says. “Either you say that everything in the rights can be compromised, or you say that there is a core that is solid.”
The Court, she suggests, moves between both positions without settling on either. Anaïs sees this partly as a consequence of how the institution operates: 46 judges from different countries and legal traditions, working under significant time and resource pressure, needing to agree on specific wording. “The idea of the essence is so debated in philosophy, and every state has its own tradition of what really matters,” she explains. “Judges have to agree quickly. So, they settle on the essence because they understand the broad idea. But they won’t agree on the details.”
“It’s a headache,” she says. “But it’s an interesting headache.”
The biggest finding of her research, Anaïs argues, may be the overall insignificance of the concept in practice. “If you take it away from all of the judgments, I would suspect there won’t be much change in the reasoning,” she says. The Court has many other tools to apply human rights. It does not need the essence. And yet the term persists. “I think it’s due to its symbolic power,” she says. “It’s about the narrative.” Words in judgments are all that is left to readers, practitioners, and courts when interpreting the case law. And a word as intuitively powerful as “essence”, Anaïs explains, sends the message that the facts at stake touch upon something fundamental, even when the term itself does little legal work.
The concept also raises a question that extends beyond European case law. Anaïs notes that the essence of rights as used by the European Court of Human Rights is probably shaped by some European legal tradition. “It would be tricky to consider it as a universal concept,” she says. “Even at the European level, different authorities use the essence in different ways.” Mapping those differences is one of the directions she hopes to pursue after her thesis defence.
Anaïs submitted her thesis in February. For those from less privileged backgrounds, that achievement may carry an additional weight. Anaïs describes growing up in a household rich in culture but with limited financial safety nets. External scholarships were the only way she could afford her studies in Cambridge and her recent stay at NYU. For many researchers like her, that reliance on grants shapes not only access to academia but the choices available within it. Her research path from Belgium to Cambridge to Florence took work and persistence, but she is quick to acknowledge the people who made it possible to imagine it in the first place. A professor who showed her that law could be exciting. A friend who said, why not apply? Researchers who mentioned the EUI. "Whenever you tell people, they are often ready to help and open doors," she notes.
Looking back on years spent inside the reasoning of the European Court of Human Rights, Anaïs reflects on what the experience at the EUI has given her. She arrived drawn to human rights because she believed in their promise. She still does. But she has also come to take the critiques more seriously — the argument that human rights, as currently framed, can be instruments of power, that they risk encouraging the very systemic issues they were meant to address. "Those are powerful ideas," she says. "And I think I need more time to really study them and give my full brain to it."
She does not see that as losing ground. She sees it as the kind of question that takes a career, not a thesis, to answer. "And I've been given the space here to start," she says.
Anaïs Brucher is a PhD researcher in the EUI Department of Law. Her thesis, “Making (Es)sense of Rights: Study of the Term ‘Essence of Rights’ in the Recent Case Law of the European Court of Human Rights,” is supervised by Gráinne De Búrca.
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