scholarly journals Non-Universal Arguments under the European Convention on Human Rights

2020 ◽  
Vol 31 (1) ◽  
pp. 101-126
Author(s):  
Tilmann Altwicker
Keyword(s):  
Human Rights ◽  
European Convention ◽  
International Human Rights Law ◽  
Individual Freedom ◽  
Human Rights Law ◽  
Institutional Legitimacy ◽  
Difference Making ◽  
European Court ◽  
Human Rights Norms ◽  
Made In

Abstract It is popular to view international human rights law as universal. In a normative sense, human rights universality refers to certain qualities of human rights norms. These qualities have long been under attack, most recently by what is called here human rights nationalism. The main point made in this article is that some of the criticism levelled against normative human rights universality can be accommodated through interpretation. To this end, non-universality of human rights is judicially created (argumentative non-universality). This article offers an analysis of argumentative non-universality in the context of the European Convention on Human Rights (ECHR). It shows that the European Court of Human Rights (ECtHR) operationalizes argumentative non-universality through a conception of asymmetric protection, by using context as a difference-making fact and by allowing, in certain cases, for a decentralized interpretation of rights under the ECHR. As argued here, resorting to argumentative non-universality sometimes makes sense because non-universality takes seriously the fact that individual freedom is, to some extent, socially and politically conditioned. Furthermore, non-universality allows for reasonable interpretive pluralism, and it contributes to the institutional legitimacy of the ECtHR. In conclusion, the ECtHR is, rightly so, an ‘interpreter of universality’ (as quoted by Judge Pinto de Albuquerque) as it is an interpreter of the non-universality of convention rights.

The Legal Personality of Individuals in International Human Rights Law

2018 ◽  
Author(s):  
Astrid Kjeldgaard-Pedersen
Keyword(s):  
Human Rights ◽  
European Convention ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Legal Personality ◽  
European Court ◽  
History Of ◽  
International Human ◽  
International Legal Personality

Following a summary presentation of some key events in the history of international human rights law before the Second World War, Chapter 7 concentrates on one prominent example within the field of international human rights law, namely the European Convention on Human Rights (ECHR). Section 7.2 deals in turn with three core issues. First, Section 7.2.1 describes the evolution of the procedural status of individuals before the European Court of Human Rights (ECtHR) and assesses the role of the concept of international legal personality in that regard. Section 7.2.2 studies the Court’s practice concerning the interpretation of the ECHR, including the margin of appreciation doctrine. Finally, Section 7.2.3 analyses the practice of the ECtHR as regards the place of the Convention in the international legal system.

scholarly journals Access to Abortion in Cases of Fatal Foetal Abnormality: A New Direction for the European Court of Human Rights?

2019 ◽  
Author(s):  
Bríd Ní Ghráinne ◽  
Aisling McMahon
Keyword(s):  
Human Rights ◽  
International Law ◽  
European Convention ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Positive Aspect ◽  
The Past ◽  
Sensitive Topics ◽  
European Court ◽  
Degrading Treatment

ABSTRACT In contrast to the United Nations Human Rights Committee, the European Court of Human Rights (ECtHR) has not yet found that a prohibition of abortion in cases of fatal foetal abnormality violates the prohibition of torture or inhuman or degrading treatment under Article 3 of the European Convention on Human Rights. We argue that the ECtHR is on the verge of aligning itself with the Committee because, first, recent ECtHR jurisprudence is broadening its interpretation of rights within the abortion context; second, the ECtHR frequently uses international law as an interpretative tool; and, third, moving in the direction of the Committee would not be as controversial as it may have been in the past. More broadly, we view the proliferation of international and regional human rights' treaty regimes as a positive aspect of international human rights law and demonstrate how a body established to adjudicate on human rights disputes can, with some ingenuity, broaden its approach on sensitive topics by engaging with views of other human rights courts and treaty monitoring bodies.

The Extraterritorial Application of International Human Rights Law

2018 ◽  
Author(s):  
Ian Park
Keyword(s):  
Human Rights ◽  
Armed Conflict ◽  
European Convention ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Right To Life ◽  
Lively Discussion ◽  
European Court ◽  
Domestic Courts ◽  
The Uk

Until recently, the UK conducted its litigation strategy on the basis that the European Convention on Human Rights had no, or very little, extraterritorial effect. As such, the UK contended that the Convention did not apply during armed conflict. In several judgments, both domestic courts and the European Court of Human Rights ruled to the contrary. That said, the exact contours of how a state’s right to life obligations function during an armed conflict overseas remain subject to lively discussion and debate. This chapter seeks to explore these issues and offers a view on the circumstances in which a state does have right to life obligations during an armed conflict overseas and those in which it does not.

The European Convention on Human Rights and General International Law

2018 ◽  
Keyword(s):  
Human Rights ◽  
International Law ◽  
Feedback Loop ◽  
European Convention ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Courts ◽  
National Courts ◽  
European Court ◽  
Protection Of Human Rights

The European Court of Human Rights is one of the main players in interpreting international human rights law where issues of general international law arise. While developing its own jurisprudence for the protection of human rights in the European context, it remains embedded in the developments of general international law. But the Court does not always follow general international law closely and develops its own doctrines. Its decisions are influential for national courts as well as other international courts and tribunals, thereby, at times, influencing general international law. There is thus a feedback loop of influence. This book explores the interaction, including the problems arising in the context of human rights, between the European Convention on Human Rights and general international law. It contributes to the ongoing debate on fragmentation and convergence of International Law from the perspective of international judges as well as academics. Some of the chapters suggest reconciling methods and convergence while others stress the danger of fragmentation. The focus is on specific topics which have posed special problems, namely sources, interpretation, jurisdiction, state responsibility, and immunity.

Laws against the Denial of Historical Atrocities: A Human Rights Analysis

2014 ◽  
Vol 9 (2-3) ◽  
pp. 151-180 ◽  
Author(s):  
Jeroen Temperman
Keyword(s):  
Human Rights ◽  
Freedom Of Expression ◽  
Related Question ◽  
European Convention ◽  
International Human Rights Law ◽  
Political Rights ◽  
Human Rights Law ◽  
European Court ◽  
Civil And Political Rights ◽  
Criminal Legislation

This article ventures into the contentious question of whether the denial of historical atrocities is per se removed from the protection of freedom of expression and the related question if states may under international human rights law proactively combat, through criminal legislation (‘memory laws’), such types of extreme speech. In so doing, the article compares and contrasts approaches employed by the un Human Rights Committee that monitors the un International Covenant on Civil and Political Rights with that of the European Court of Human Rights, regional watchdog of the European Convention on Human Rights. It is argued that both approaches are shifting—though not quite in converging directions. The article makes a case for a contextual rather than exclusively content-based approach. An approach in which the question of ‘likelihood of harm being done to the targeted group’ is guiding, best resonates with the necessity principle.

Equality and Affirmative Action in International Human Rights Law and its Relevance to the European Union

2000 ◽  
Vol 4 (1) ◽  
pp. 3-45 ◽  
Author(s):  
Ursula O'Hare
Keyword(s):  
Human Rights ◽  
Affirmative Action ◽  
International Human Rights Law ◽  
The European Union ◽  
Human Rights Law ◽  
Community Law ◽  
Court Of Justice ◽  
European Court ◽  
Positive Action ◽  
Human Rights Norms

Human rights norms have played an increasingly important role in recent equality cases before the European Court of Justice, including the Marschall case on positive action. This paper aims to contribute to the positive action debate in Community law by exploring the meaning of the equality principle in human rights law and outlining the potential relevance of the human rights approach to affirmative action for the development of the equality principle in Community law. The paper suggests that the equality principle in human rights law, not only permits, but arguably may, in certain circumstances, require states to adopt affirmative action in fulfilment of their obligations to respect the equality principle. Human rights law thus represents a valuable resource upon which the Court could draw in developing the equality principle in Community law. Should the Court have regard to human rights law in framing the future scope of the equality principle in Community law this may result in a bolder approach to positive action in Community law than hitherto adopted by the Court. The paper, however, also recognises the limits of human rights law and concludes with an assessment of those steps which the international community may need to take if the Court is to be expected to draw upon human rights norms in informing its interpretation of Community equality law.

The Lawful Detention of Unauthorised Aliens under the European System for the Protection of Human Rights

2011 ◽  
Vol 80 (2) ◽  
pp. 193-218
Author(s):  
Peter Langford ◽  
Ian Bryan
Keyword(s):  
Human Rights ◽  
European Convention ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
European Court ◽  
Criminal Charge ◽  
European System ◽  
Protection Of Human Rights ◽  
Migration Flows ◽  
Article 5

AbstractThis article evaluates the protections against 'arbitrary' and 'unlawful' detention aff orded to nonnationals on having entered the territory of a State party to the European Convention on Human Rights (ECHR). Focussing on Article 5 ECHR and the various permissible exceptions therein, the article examines leading decisions of the European Court of Human Rights (ECtHR) and, in so doing, illuminates and explores tensions arising from the juncture at which Contracting States' capacity to detain entry-seeking non-nationals, without criminal charge or trial, intersects with the requisites of Article 5(1)(f ) ECHR, as construed by the ECtHR. It argues that the ECtHR's interpretative standpoint regarding the 'lawful' administrative detention of 'unauthorised' non-nationals gives disproportionate preference to Contracting States' interest in managing migration flows. It also argues that in consequence States' obligations in international human rights law, the strictures of Article 5 ECHR and the credibility of the Strasbourg Court itself are enfeebled.

Risk Regulation and the European Convention on Human Rights

2016 ◽  
Vol 7 (4) ◽  
pp. 733-749
Author(s):  
Letizia Seminara
Keyword(s):  
Human Rights ◽  
European Convention ◽  
European Law ◽  
Human Rights Law ◽  
Right To Life ◽  
Risk Regulation ◽  
European Regulation ◽  
European Court ◽  
Human Rights Norms ◽  
The Right

AbstractEuropean law of risk regulation is commonly intended to be limited to the European regulation in the internal market. However, risk is also regulated in Europe by human rights law, which is often left aside in this area. In fact, disregard for the risk entailed by certain manmade activities as well as by natural events, may imply restrictions to, inter alia, the right to life and the right to respect for private and family life enshrined in the European Convention on Human Rights. This article aims at studying the manner in which this Convention regulates risk through human rights norms. It provides an overview of the standards set by the European Court of Human Rights in this field.

Multiparty Democracy: International and European Human Rights Law Perspectives

2010 ◽  
Vol 23 (1) ◽  
pp. 209-240 ◽  
Author(s):  
JURE VIDMAR
Keyword(s):  
Human Rights ◽  
Cold War ◽  
European Convention ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Post Cold War ◽  
European Court ◽  
European Public ◽  
International Human

AbstractAlthough multiparty elections are not explicitly required by international human rights instruments or the European Convention on Human Rights (ECHR), certain human rights provisions have been interpreted as leading to such a requirement. While a democratic interpretation of human rights law has been settled in the ECHR framework, it remains disputable at the universal level. Despite numerous references to democracy in the documents adopted in the UN framework in the post-Cold War era, this article argues that an explicit link between international human rights law and multiparty elections has yet to be established. On the other hand, such a link has been developed by the European Court of Human Rights (ECtHR). Multiparty elections are considered to be part of the European public order. Moreover, the ECtHR has shown that it understands democracy beyond the existence of electoral procedures. But the role and understanding of democracy within the ECHR cannot be universalized.

scholarly journals Sharia Law in Europe? Legacies of the Ottoman Empire and the European Convention on Human Rights

2019 ◽  
Vol 8 (3) ◽  
pp. 517-566
Author(s):  
Dominic McGoldrick
Keyword(s):  
Human Rights ◽  
Ottoman Empire ◽  
Modern Human ◽  
Social Contexts ◽  
European Convention ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
European Court ◽  
Grand Chamber ◽  
The Individual

Abstract In Western Thrace in Greece, a legacy of the Ottoman Empire survives in the form of religious law (Sharia). This article examines how international human rights law has approached the compatibility of such religious laws with modern human rights instruments and particularly with the European Convention on Human Rights (ECHR). It portrays the situation on Western Thrace within the wider historical, legal and social contexts of Muslims in Greece. It explains how the ‘Muslims in Western Thrace’ came to be identified as a particular legal minority, why Sharia continued to be applied to them and only to them, and examines their contemporary legal and human rights status. There follows an extensive critique of the judgment of the Grand Chamber of the European Court of Human Rights in Molla Sali v. Greece in December 2018. Although the narrow factual issue in the case concerned inheritance rights, the case raised general issues concerning the individual as the central subject of human rights law and the relationship between individual and minority rights protection. The article concludes by reflecting on the place of individual consent within a human rights framework and the systemic implications of the Molla Sali case with respect to the possible future of Sharia in the social and legal spaces of the ECHR.

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