Defining European Public Order: An Impossible Task

2021 ◽  
pp. 62-95
Keyword(s):  
Public Order ◽  
European Public ◽  
Impossible Task

The European Convention on Human Rights and International Public Order

2003 ◽  
Vol 5 ◽  
pp. 237-270
Author(s):  
Alexander Orakhelashvili
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Public Order ◽  
Human Rights Protection ◽  
The Public ◽  
Rights Protection ◽  
European Public ◽  
Essential Components ◽  
The Law ◽  
Definition Of

It is commonly assumed that the European Convention on Human Rights, being a treaty of specific nature, embodies elements of European public order. However, there seems to be no authoritative or generally accepted definition of the public order of Europe, of its essential components, and of its relationship with the notion of international public order. This article will examine these questions. In pursuing this goal, the law-enforcement resources accumulated within the European system of human rights protection will be examined in the context of interaction between the public order of Europe as part of the law of the European Convention, and international public order as part of general international law.

The European Convention on Human Rights and International Public Order

2003 ◽  
Vol 5 ◽  
pp. 237-270
Author(s):  
Alexander Orakhelashvili
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Public Order ◽  
Human Rights Protection ◽  
The Public ◽  
Rights Protection ◽  
European Public ◽  
Essential Components ◽  
The Law ◽  
Definition Of

It is commonly assumed that the European Convention on Human Rights, being a treaty of specific nature, embodies elements of European public order. However, there seems to be no authoritative or generally accepted definition of the public order of Europe, of its essential components, and of its relationship with the notion of international public order. This article will examine these questions. In pursuing this goal, the law-enforcement resources accumulated within the European system of human rights protection will be examined in the context of interaction between the public order of Europe as part of the law of the European Convention, and international public order as part of general international law.

Intersectionality, Forced Migration, and the Jus-generation of the Right to Flee

2021 ◽  
pp. 43-84
Author(s):  
Violeta Moreno-Lax
Keyword(s):  
Human Rights ◽  
Legal System ◽  
Forced Migration ◽  
Public Order ◽  
Intersectionality Theory ◽  
Legal Provisions ◽  
European Public ◽  
Holistic Understanding ◽  
Substantive Justice ◽  
The Right

This chapter critiques the piecemeal approach of the Strasbourg Court to the question of access to asylum, showing how intersectionality theory can facilitate a principled shift towards an analysis that captures the complexity of refugees’ position and recovers the indivisibility of human rights. The theory calls for the multi-dimensional appreciation of human experience in a way that encompasses the whole breadth of lived realities. A similar approach is advocated herein to the construal of the law so that intersectional thinking guides not only the appraisal of factual constellations, but also the interpretation of applicable norms. Only a whole-of-person approach matched by a whole-of-legal-system interpretation can realise substantive justice in practice. This requires a holistic understanding that penetrates the full depth of individual situations and incorporates all the relevant legal provisions in cumulative fashion, acknowledging the jus-generative effects of their interaction, overcoming the limitations of current constructions of rights as disconnected from each other and from the circumstances to which they apply. In the asylum-seeking context, the outcome of the intersection between the right to leave and the right to protection against ill-treatment is the composite ‘right to leave to escape ill-treatment’ or ‘right to flee’, based on the interactive combination of existing entitlements (without the need for new law). The purchase of this method is wider than this chapter has scope to demonstrate. It can be applied to the ECHR as a whole, promoting internal consistency and supporting its development as a constitutional instrument of European public order.

Grading Scale of Degradation: Identifying the Threshold of Degrading Treatment or Punishment under Article 3 ECHR

2003 ◽  
Vol 21 (3) ◽  
pp. 385-421 ◽  
Author(s):  
Yutaka Arai-Yokoi
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Public Order ◽  
International Human Rights ◽  
European Public ◽  
Grading Scale ◽  
Degrading Treatment ◽  
International Human ◽  
The Rich ◽  
Constitutional System

Among international human rights instruments, the rich jurisprudence on Article 3 of the European Convention on Human Rights (ECHR) has yielded meaningful and workable principles for defining the normative parameter of freedom from torture and other forms of maltreatment. While identification of torture has been limited to a small number of straightforward cases of assault giving rise to physical and mental anguish of an especially aggravated character, the overwhelming majority of cases raised under Article 3 have related to degrading or inhuman treatment or punishment. By focusing upon threshold cases involving freedom from degrading treatment or punishment, the least serious absolute right under Article 3, this article seeks to delineate the boundaries of the effective guarantee provided by this absolute right in the Strasbourg organs judicial policy. The examination suggests an encouraging sign that the Strasbourg organs have funnelled considerable vigour and creativity into their law-making policy, elaborating on the most succinct provision in the ECHR. They have capitalised on the graduating scale of degrading treatment so as to diversify the protective scope of Article 3, in a continued search for progressive European public order. They have supplied to individual victims a horizon of possible arguments, which can unfold along lines conducive to the shaping and restructuring of the emerging European constitutional system.

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