The Impartiality of International Judges: Evidence from the European Court of Human Rights

2008 ◽  
Vol 102 (4) ◽  
pp. 417-433 ◽  
Author(s):  
ERIK VOETEN
Keyword(s):  
Human Rights ◽  
National Government ◽  
Judicial Behavior ◽  
Policy Preferences ◽  
Judicial Power ◽  
Government Behavior ◽  
Member States ◽  
European Court ◽  
International Court ◽  
Bright Side

Can international judges be relied upon to resolve disputes impartially? If not, what are the sources of their biases? Answers to these questions are critically important for the functioning of an emerging international judiciary, yet we know remarkably little about international judicial behavior. An analysis of a new dataset of dissents in the European Court of Human Rights (ECtHR) yields a mixed set of answers. On the bright side, there is no evidence that judges systematically employ cultural or geopolitical biases in their rulings. There is some evidence that career insecurities make judges more likely to favor their national government when it is a party to a dispute. Most strongly, the evidence suggests that international judges are policy seekers. Judges vary in their inclination to defer to member states in the implementation of human rights. Moreover, judges from former socialist countries are more likely to find violations against their own government and against other former socialist governments, suggesting that they are motivated by rectifying a particular set of injustices. I conclude that the overall picture is mostly positive for the possibility of impartial review of government behavior by judges on an international court. Like judges on domestic review courts, ECtHR judges are politically motivated actors in the sense that they have policy preferences on how to best apply abstract human rights in concrete cases, not in the sense that they are using their judicial power to settle geopolitical scores.

scholarly journals The Relationship between the European Court of Human Rights and the Constitutional Court of the Russian Federation: Conflicting Conceptions of Sovereignty in Strasbourg and St Petersburg

2019 ◽  
Vol 30 (3) ◽  
pp. 933-959 ◽  
Author(s):  
Jeffrey Kahn
Keyword(s):  
Human Rights ◽  
Russian Federation ◽  
European Convention ◽  
Constitutional Court ◽  
Member States ◽  
European Court ◽  
International Court ◽  
The Russian Federation ◽  
Interpretive Authority ◽  
The Relationship

Abstract Russia eagerly ratified the European Convention on Human Rights (ECHR) in 1998. Twenty years later, the chair of its Constitutional Court now expresses resentment at the subordination of Russian sovereignty. A new law expands his Court’s jurisdiction to deny effect to judgments of the European Court of Human Rights, an unprecedented power that has already been used twice. This article analyses this law and its application in its first two years. Both the claim of ‘subordination’ and the Russian response to it, in law and practice, rest on weak legal ground. But Russia’s action also raises deeper theoretical and practical questions for the ECHR as a ‘living instrument’ subject to the ‘evolutive’ interpretations of the Strasbourg Court. If other member states mimic Russia’s response to these issues, a European human rights system premised on the final interpretive authority of an international court could come to its end.

Transnational constitutional aspects of the European Court of Human Rights

2021 ◽  
Vol 10 (1) ◽  
pp. 151-174
Author(s):  
GEIR ULFSTEIN
Keyword(s):  
Human Rights ◽  
Direct Effect ◽  
Legal Pluralism ◽  
Legal Order ◽  
Not Given ◽  
National Courts ◽  
European Court ◽  
International Court ◽  
International Legal Order

AbstractThe European Court of Human Rights (ECtHR) is an international court operating in the international legal order. Its judgments are not given direct effect in national law. In this sense we have a system of legal pluralism between international and national law. But the ECtHR has constitutional effects in national law through the weight placed on the Court’s practice by national courts. Therefore, constitutional principles are applicable in the interaction between the ECtHR and national courts. This article discusses the transnational constitutional aspects of the Court, and how this should guide the roles of, respectively, the ECtHR and national courts.

scholarly journals Castaño avoids a clash between the ECtHR and the CJEU, but erodes Soering. Thinking human rights transnationally

2020 ◽  
pp. 203228442097974
Author(s):  
Sibel Top ◽  
Paul De Hert
Keyword(s):  
European Union ◽  
Human Rights ◽  
Union Member ◽  
The European Union ◽  
Member States ◽  
Court Of Justice ◽  
European Court ◽  
Criminal Matters ◽  
European Union Member States

This article examines the changing balance established by the European Court of Human Rights (ECtHR) between human rights filters to extradition and the obligation to cooperate and how this shift of rationale brought the Court closer to the position of the Court of Justice of the European Union (CJEU) in that respect. The article argues that the ECtHR initially adopted a position whereby it prioritised human rights concerns over extraditions, but that it later nuanced that approach by establishing, in some cases, an obligation to cooperate to ensure proper respect of human rights. This refinement of its position brought the ECtHR closer to the approach adopted by the CJEU that traditionally put the obligation to cooperate above human rights concerns. In recent years, however, the CJEU also backtracked to some extent from its uncompromising attitude on the obligation to cooperate, which enabled a convergence of the rationales of the two Courts. Although this alignment of the Courts was necessary to mitigate the conflicting obligations of European Union Member States towards both Courts, this article warns against the danger of making too many human rights concessions to cooperation in criminal matters.

Abortion for Foetal Abnormalities in Ireland; The Limited Scope of the Irish Government’s Response to the A, B and C Judgment

2013 ◽  
Vol 20 (2) ◽  
pp. 117-143 ◽  
Author(s):  
Stephen Donoghue ◽  
Claire-Michelle Smyth
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Legal Abortion ◽  
Member States ◽  
Non Invasive ◽  
European Court ◽  
Margin Of Appreciation ◽  
Controversial Topic ◽  
The Government ◽  
Limited Scope

Abstract Abortion has been a controversial topic in Irish law and one which the Government has been forced to address following the decision of the European Court of Human Rights in A, B and C v. Ireland. The Working Group established to make recommendations have specifically been instructed to deal only with the issues raised in the A, B and C judgment and legislate on the basic of the ‘X case’. This restricted approach calls for legalisation of abortion only where the life of the mother is at risk, a position unique only to Ireland and Andorra within Europe. The vast majority of member states to the European Convention on Human Rights allow for legal abortion on the basis of foetal abnormality and with this emerging consensus the margin of appreciation hitherto afforded by the European Court to member states is diminishing. The advancement and availability of non-invasive genetic tests that can determine foetal abnormalities together with the ruling in R. R. v. Poland leaves Ireland in a precarious position for omitting any reference to foetal abnormalities in any proposed legislation.

“Unity in Diversity” Reloaded: The European Court of Human Rights’ Turn to Subsidiarity and its Consequences

2021 ◽  
Vol 15 (1) ◽  
pp. 93-123
Author(s):  
Mikael Rask Madsen
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Reform Process ◽  
Individual Member ◽  
Member States ◽  
European Court ◽  
Recent Developments ◽  
Unity In Diversity ◽  
The Common ◽  
Individual Justice

Abstract The European Convention of Human Rights system was originally created to sound the alarm if democracy was threatened in the member states. Yet, it eventually developed into a very different system with a focus on providing individual justice in an ever growing number of member states. This transformation has raised fundamental questions as to the level of difference and diversity allowed within the common European human rights space. Was the system to rest on minimum standards with room for domestic differences, or was it to create uniform standards? These questions have come up as increasingly contentious issues over the past years and have triggered a number of reforms seeking to introduce more subsidiarity in the system, striking a different balance between the European and national oversight of human rights. The article analyses this turn to subsidiarity by exploring whether the reform process has introduced new forms of difference and diversity within the common space of European human rights. Covering the period from 2000 to the end of 2019 and using a dataset of all judgments of the period, the article provides a structural analysis of developments in reference to the margin of appreciation which is the European Court of Human Rights’ long-standing tool for balancing the common standards, yet leaving space for individual member states to find local solutions to implementing those standards. It concludes that recent developments have contributed to a more federal-style construction of European human rights with more space for differences within the common general standards.

Crimea in International Courts and Tribunals: Matters of Jurisdiction

2018 ◽  
Vol 21 (1) ◽  
pp. 378-403
Author(s):  
Gaiane Nuridzhanian
Keyword(s):  
Human Rights ◽  
Use Of Force ◽  
International Court Of Justice ◽  
Territorial Integrity ◽  
International Courts ◽  
Preliminary Examination ◽  
Court Of Justice ◽  
European Court ◽  
International Court ◽  
Inter State

The events taking place in Crimea since early 2014 have given rise to a number of international disputes currently pending before international courts and tribunals. Ukraine instituted inter-State proceedings against Russia before the International Court of Justice, the European Court of Human Rights and an unclos Annex vii Tribunal. Seven investor-State cases have been commenced against Russia. The Prosecutor of the icc is conducting preliminary examination into the crimes allegedly committed in Crimea in 2014 and afterwards. Foreign courts have also had to deal with cases related to the annexation of Crimea. This article provides an overview of cases pending before international courts and tribunals in relation to events in Crimea. The focus is on the questions related to jurisdiction of the international courts and tribunals seized in Crimea-related cases. The study explores the limits of the jurisdiction of international courts to adjudicate disputes concerning the interpretation and application of a treaty arising in connection with a larger dispute regarding the use of force, respect for sovereignty and territorial integrity. The article also discusses novel and debated jurisdiction-related matters that arise in cases brought in relation to events in Crimea. A brief description of cases heard in foreign courts is provided as well.

scholarly journals 4 The Court and Domestic and International Legal Systems

2020 ◽  
Author(s):  
Nussberger Angelika
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Vienna Convention ◽  
Legal Systems ◽  
Member States ◽  
Supreme Courts ◽  
European Court ◽  
Set Up ◽  
The One ◽  
The Relationship

This chapter assesses the relationship between the European Court of Human Rights (ECtHR) and domestic and international legal systems. With the ratification of the European Convention on Human Rights (ECHR), the Member States accept to be bound by final judgments of the Court and to implement them in their domestic legal systems. The Convention system does not make any difference as to the set-up of the national legal system or to the hierarchical position accorded to the Convention in national law. This is in line with a purist international law perspective, summarized in Article 27 of the Vienna Convention of the Law on Treaties: ‘A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.’ However, from the constitutional law perspective of the Member States, the situation is much more multi-faceted and complex. While it is generally accepted that the Court's judgments are binding and have to be implemented, the relationship between the Convention and the national constitutions as well as between their respective guardians, the Court on the one hand and national constitutional or supreme courts on the other hand, is not seen as one-way and hierarchical, but nuanced and differentiated. Implementation of judgments is accepted to be a duty, but not necessarily without exceptions. The chapter then considers the relationship between the ECtHR and the European Court of Justice (ECJ).

The Former Secretary General of the Council of Europe Confronting Russia’s Annexation of the Crimea and Turkey’s State of Emergency

2021 ◽  
pp. 1-33
Author(s):  
Esra Demir-Gürsel
Keyword(s):  
Human Rights ◽  
Secretary General ◽  
Policy Preferences ◽  
Council Of Europe ◽  
State Of Emergency ◽  
The Core ◽  
European Court ◽  
Political Expediency ◽  
The Crimea ◽  
The Postponement

Abstract This article investigates the influence of the former Secretary General of the Council of Europe (CoE), Thorbjørn Jagland, on the responses of other CoE bodies to the systemic breaches of the core principles of other CoE bodies to the systemic breaches of the core principles of the CoE in the context of two critical events: Russia’s annexation of the Crimea in 2014 and Turkey’s state of emergency that followed the attempted coup in 2016. Specifically, it examines the influence of the Secretary General’s policy preferences on the Parliamentary Assembly of the CoE and the European Court of Human Rights. The article argues that Jagland’s policy preferences in the context of these two events prioritised political expediency to the detriment of the CoE’s normative mission. The article finds that the Secretary General played a crucial role in facilitating the reversal of the sanctions imposed by the Assembly against Russia and the postponement of the processing of Turkey’s post-coup cases by the Court.

1 The Court Over Sixty Years

2020 ◽  
Author(s):  
Nussberger Angelika
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Peace Treaty ◽  
Member States ◽  
Human Rights Protection ◽  
Rights Protection ◽  
European Court ◽  
Definition Of ◽  
The Individual ◽  
Violent Conflicts

This introductory chapter provides a background of the European Convention on Human Rights (ECHR), a multilateral treaty based on humanism and rule of law. Similar to the—albeit non-binding—Universal Declaration of Human Rights (UDHR), the ECHR is a document that marks a change in philosophy and gives a new definition of the responsibility of the State towards the individual. It fixes basic values in times of change and paves the way towards reconciliation in Europe. Unlike in a peace treaty, not all wartime enemies participate in its elaboration, but, one by one, all the European States accede to it, signalling their consent to the values fixed by a small community of States in the early 1950s. Seven decades later, forty-seven European States have ratified the Convention. Admittedly, the new start based on common values could not prevent the outbreak of violent conflicts between Member States. At the same time, the resurgence of anti-democratic tendencies could not be successfully banned in all Member States, but such tendencies could be stigmatized as grave human rights violations in binding judgments of the European Court of Human Rights (ECtHR). Thus, it is not surprising that the European model of human rights protection has been attractive and inspirational for other parts of the world. Nevertheless, there was and is a debate in some Member States to withdraw from the Convention as the Court’s jurisprudence is seen to be too intrusive on national sovereignty.

Germany's Dialogue with Strasbourg: Extrapolating theBundesverfassungsgericht'sRelationship with the European Court of Human Rights in the Preventive Detention Decision

2012 ◽  
Vol 13 (6) ◽  
pp. 757-772 ◽  
Author(s):  
Birgit Peters
Keyword(s):  
Human Rights ◽  
National Level ◽  
National Court ◽  
Council Of Europe ◽  
Member States ◽  
Proper Role ◽  
European Court ◽  
New Applications ◽  
The Relationship ◽  
Sheer Number

Within the Council of Europe, the relationship between the ECtHR and the member states is crucial for the survival and effective functioning of the Court. The ECtHR is currently overwhelmed by applications, the bulk of which emanate from a relatively small number of states, notably Russia, Rumania, Turkey, and the Ukraine. The backlog of cases will soon be toppling the vertiginous mark of 160,000, the adjudication of which alone would take the Court more than six years. The sheer number of cases exemplifies the system's urgent need for reform. Lately, discussions have been heavily influenced by considerations of subsidiarity, which the earlier Interlaken Declaration-as well as the recent Brighton Conference-emphasized as the key for the future relationship between the ECtHR and member states. Discussions about the principle's proper role in the relationship between member states and the ECHR, however, are far from over. This is due to questions regarding the principle itself, as well as to the factual realities dominating in the ECtHR-national court relationship. The principle often focuses on a strict separation of competences at two different levels, the national and the international, and many understandings of that principle require that the two levels stand in a more or less hierarchical relationship. This is difficult to assume in the Council of Europe context, where, compared to the EU, neither the doctrine of direct effect nor the principle of primacy in application reigns. Moreover, Strasbourg's emphasis on subsidiarity appears to focus on the responsibility of the member states to remedy human rights violations. In line with that argument, scholars have opined that the ECHR system should focus on an approach in which the ECtHR would be involved only if there are good reasons to depart from interpretation at the national level. Nonetheless, others recently doubted the overall usefulness of such an understanding of subsidiarity, since those member states responsible for the lion's share of new applications to the ECHR often neither possess a functioning judiciary nor functioning judicial or executive institutions, in general.

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