Briefly Noted

2020 ◽  
Vol 59 (4) ◽  
pp. 739-742
Keyword(s):  
Human Rights ◽  
Cote D'ivoire ◽  
Press Release ◽  
The Other ◽  
North African ◽  
The North ◽  
European Court ◽  
Individual Assessment ◽  
African Coast ◽  
Grand Chamber

On February 13, 2020, the Grand Chamber of the European Court of Human Rights (ECtHR) announced its decision in N.D. and N.T. v. Spain. According to a press release from the Court, the case concerned two individuals (one from Mali and the other from Côte d'Ivoire) who were immediately returned to Morocco from Spain after unlawfully entering the autonomous Spanish city of Melilla on the North African coast. The individuals argued that their return to Morocco violated ECHR Articles 4 of Protocol 4 (prohibition of collective expulsion) and Article 13 (right to an affective remedy). The ECtHR disagreed, basing its decision on the fact that the two applicants unlawfully entered Melilla. The Court stated that because the two individuals had chosen not to make use of lawful channels for entry, their immediate return to Morocco without individual assessment of their cases for asylum "was thus a consequence of their own conduct" (para. 231). Because the Court found no violation of article 4, it could not make a finding with respect to article 13.

scholarly journals II. GRAND CHAMBER OF THE EUROPEAN COURT OF HUMAN RIGHTS,A, B & C v IRELAND, DECISION OF 17 DECEMBER 2010

2013 ◽  
Vol 62 (1) ◽  
pp. 250-262 ◽  
Author(s):  
Fiona de Londras ◽  
Kanstantsin Dzehtsiarou
Keyword(s):  
Human Rights ◽  
The Other ◽  
Public Order ◽  
Linguistic Terms ◽  
European Consensus ◽  
European Court ◽  
European Public ◽  
The One ◽  
Grand Chamber ◽  
Scope Of Protection

The use of ‘European consensus’ as a decision-making mechanism of the European Court of Human Rights has been condemned and praised in almost equal measure.1On the one hand, some scholars argue that the way in which so-called ‘consensus’ is identified is generally unsound and lacking in rigour.2It is also claimed that European consensus is overly subjective in its nature3and, in any case, that it undermines the principle that the Convention has an autonomous meaning determined by the Court and separate to what member States do or interpret it as meaning.4On the other hand there are scholars who, while often concerned with the suboptimal methodology adopted in identifying and using European consensus in the decisions of the Court, recognize the method's potential to increase the legitimacy of the Court and its function as a mechanism for the progressive liberalization of the European public order.5This reflects the fact that, generally speaking, European consensus has been applied in order to establish an expanded scope of protection for the Convention in areas not expressly mentioned within it or contemplated at the time of its drafting, on the basis that there is an identifiable trend (although, in strict linguistic terms, not an actual ‘consensus’) among other European States to protect the alleged right.6

The Internationalization Of Human Rights And The Importance Of Normative Dialogues Between International And National Courts

2017 ◽  
Vol 17 (2) ◽  
pp. 137
Author(s):  
Mariane Morato Stival ◽  
Marcos André Ribeiro ◽  
Daniel Gonçalves Mendes da Costa
Keyword(s):  
Human Rights ◽  
The Other ◽  
Human Rights Protection ◽  
Rights Protection ◽  
National Courts ◽  
European Court ◽  
Differences Of Opinion ◽  
Rights Discourse ◽  
Different Characteristics ◽  
Human Rights Discourse

This article intends to analyze in the context of the complexity of the process of internationalization of human rights, the definitions and tensions between cultural universalism and relativism, the essence of human rights discourse, its basic norms and an analysis of the normative dialogues in case decisions involving violations of human rights in international tribunals such as the European Court of Human Rights, the Inter-American Court of Human Rights and national courts. The well-established dialogue between courts can bring convergences closer together and remove differences of opinion on human rights protection. A new dynamic can occur through a complementarity of one court with respect to the other, even with the different characteristics between the legal orders.

To Discriminate in Order to Fight Discrimination

2017 ◽  
Author(s):  
Dolores Morondo Taramundi
Keyword(s):  
Human Rights ◽  
United Kingdom ◽  
The Other ◽  
The United Kingdom ◽  
European Court ◽  
Main Technique ◽  
Antidiscrimination Law ◽  
The One ◽  
Paradoxical Results ◽  
Conflicts Of Rights

This chapter analyses arguments regarding conflicts of rights in the field of antidiscrimination law, which is a troublesome and less studied area of the growing literature on conflicts of rights. Through discussion of Ladele and McFarlane v. The United Kingdom, a case before the European Court of Human Rights, the chapter examines how the construction of this kind of controversy in terms of ‘competing rights’ or ‘conflicts of rights’ seems to produce paradoxical results. Assessment of these apparent difficulties leads the discussion in two different directions. On the one hand, some troubles come to light regarding the use of the conflict of rights frame itself in the field of antidiscrimination law, particularly in relation to the main technique (‘balancing of rights’) to solve them. On the other hand, some serious consequences of the conflict of rights frame on the development of the antidiscrimination theory of the ECtHR are unearthed.

In Search of a Standard: References to the Rule of Law in the Case-law of the European Court of Human Rights

ICL Journal ◽  
2020 ◽  
Vol 14 (1) ◽  
pp. 43-69
Author(s):  
Eszter Polgári
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Case Law ◽  
Council Of Europe ◽  
The Rule Of Law ◽  
Working Definition ◽  
European Court ◽  
Structured Analysis ◽  
Definition Of ◽  
Grand Chamber

AbstractThe present article maps the explicit references to the rule of law in the jurisprudence of the ECtHR by examining the judgments of the Grand Chamber and the Plenary Court. On the basis of the structured analysis it seeks to identify the constitutive elements of the Court’s rule of law concept and contrast it with the author’s working definition and the position of other Council of Europe organs. The review of the case-law indicates that the Court primarily associates the rule of law with access to court, judicial safeguards, legality and democracy, and it follows a moderately thick definition of the concept including formal, procedural and some substantive elements. The rule of law references are predominantly ancillary arguments giving weight to other Convention-based considerations and it is not applied as a self-standing standard.

scholarly journals Courage and Cowardice in the North African Campaign: The Eighth Army and Defeat in the Summer of 1942

2013 ◽  
Vol 20 (1) ◽  
pp. 99-122 ◽  
Author(s):  
Jonathan Fennell
Keyword(s):  
North Africa ◽  
The State ◽  
The Other ◽  
Human Dimension ◽  
North African ◽  
The North ◽  
High Level ◽  
Eighth Army

High rates of desertion and surrender during the battles in North Africa in the summer of 1942 were a major factor in Eighth Army’s poor combat performance. At the time, some suggested that these problems were symptomatic of a lack of courage or even of cowardice. There are two broad strands to the conceptualization of courage and cowardice. One focuses on the willingness of the person to fight; the other puts emphasis on how actions express an individual’s ability to cope with fear. Whichever conceptualization is used, high morale motivates the soldier to fight and shields the ordinary recruit from his fear, preventing it from overcoming him in battle. Where morale fails, the soldier is left demotivated and burdened with his terror and, therefore, and is therefore prone to desertion or surrender. Because it is extremely difficult to maintain morale at a continuously high level in an environment governed by chance and managed by humans, all soldiers can find themselves in situations where their actions may be judged as cowardly. Alternatively, if they are properly motivated to fight and prepared by the state and military to deal with the unavoidable fear of combat, all soldiers can be labelled courageous. Accordingly, emotive terms should be avoided when attempting to describe rationally explainable outcomes. The undoubtedly negative connotations attached to cowardice in battle and the positive ones attached to courage are, therefore, arguably unhelpful in understanding Eighth Army’s performance in the summer of 1942 and the human dimension in warfare more generally.

scholarly journals Khlaifia and Others v. Italy

2018 ◽  
Vol 112 (2) ◽  
pp. 274-280
Author(s):  
Jill I. Goldenziel
Keyword(s):  
Human Rights ◽  
Asylum Seekers ◽  
European Convention ◽  
Individual Rights ◽  
Detention Centers ◽  
European Court ◽  
Grand Chamber ◽  
The Individual ◽  
The Arab Spring ◽  
Domestic Law

In Khlaifia and Others v. Italy, the Grand Chamber of the European Court of Human Rights (Grand Chamber or Court) released a landmark opinion with broad implications for how states must respect the individual rights of migrants. In the judgment, issued on December 15, 2016, the Court held that Italy's treatment of migrants after the Arab Spring violated the requirement of the European Convention on Human Rights (ECHR) that migrants receive procedural guarantees that enable them to challenge their detention and expulsion. The Court also held that Italy's treatment of migrants in detention centers did not violate the ECHR's prohibition on cruel and inhuman treatment, in part due to the emergency circumstances involved. The Court further held that Italy's return of migrants to Tunisia did not violate the prohibition on collective expulsion in Article 4 of Protocol 4 of the ECHR. Enforcement of the judgment would require many European states to provide a clear basis in domestic law for the detention of migrants and asylum-seekers. Given the global diffusion of state practices involving migrants, and other states’ desires to restrict migration, this case has broad implications for delineating the obligations of states to migrants and the rights of migrants within receiving countries.

Battles Over Symbols: The “Religion” of the Minority Versus the “Culture” of the Majority

2013 ◽  
Vol 28 (1) ◽  
pp. 67-104 ◽  
Author(s):  
Lori G. Beaman
Keyword(s):  
Human Rights ◽  
Religious Freedom ◽  
Religious Symbol ◽  
Anti Semitism ◽  
European Tradition ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
Grand Chamber ◽  
The Right

Moreover, with the benefit of hindsight, it is easy to identify in the constant central core of Christian faith, despite the inquisition, despite anti-Semitism and despite the crusades, the principles of human dignity, tolerance and freedom, including religious freedom, and therefore, in the last analysis, the foundations of the secular State.A European court should not be called upon to bankrupt centuries of European tradition. No court, certainly not this Court, should rob the Italians of part of their cultural personality.In March, 2011, after five years of working its way through various levels of national and European courts, the Grand Chamber of the European Court of Human Rights decided that a crucifix hanging at the front of a classroom did not violate the right to religious freedom under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Specifically, Ms. Soile Lautsi had complained that the presence of the crucifix violated her and her children's right to religious freedom and that its presence amounted to an enforced religious regime. The Grand Chamber, reversing the lower Chamber's decision, held that while admittedly a religious symbol, the crucifix also represented the cultural heritage of Italians.

The Strasbourg Court on the Dayton Constitution: Judgment in the case of Sejdić and Finci v. Bosnia and Herzegovina, 22 December 2009

2010 ◽  
Vol 6 (2) ◽  
pp. 309-333 ◽  
Author(s):  
Samo Bardutzky
Keyword(s):  
Human Rights ◽  
Bosnia And Herzegovina ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
Grand Chamber

On 22 December 2009, the Grand Chamber of the European Court of Human Rights (hereafter: the Court) issued a judgment on the applications filed by two citizens of Bosnia and Herzegovina, Mr Dervo Sejdić and Mr Jakob Finci. It found a violation of their rights under the Convention for the Protection of Human Rights and Fundamental Freedoms and under the Protocols to the Convention. Bosnia and Herzegovina had violated the applicants' rights under Article 14 of the Convention in conjunction with Article 3 of Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms and under Article 1 of Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms.

Sign in / Sign up

Export Citation Format

Share Document