scholarly journals The European Court of Human Rights, Transitional Justice and Historical Abuse in Consolidated Democracies

2019 ◽  
Vol 19 (4) ◽  
pp. 675-704
Author(s):  
James Gallen
Keyword(s):  
Human Rights ◽  
Transitional Justice ◽  
Armed Conflict ◽  
Authoritarian Regimes ◽  
European Convention ◽  
Authoritarian Rule ◽  
Human Rights Abuses ◽  
European Court ◽  
The Relationship

Abstract In recent years, both transitional justice and the role of the European Court of Human Rights in dealing with historical abuses have evolved. Transitional justice has begun to address widespread or systemic human rights abuses outside of the contexts of armed conflict and authoritarian regimes. In three key recent judgments, El-Masri v Macedonia, Janowiec v Russia and O’Keeffe v Ireland, the Court has clarified and expanded its approach to addressing historical human rights violations relevant to transitional justice in significant, if inconsistent, ways. To date, there is no exploration of the relationship between transitional justice, historical abuse outside the contexts of armed conflict or authoritarian rule and the European Convention of Human Rights. This article seeks to address that gap by considering the potential opportunities and obstacles for the use of the Convention to address historical abuse in consolidated democracies as a part of transitional justice.

Dealing with the Past or Moving Forward? Transitional Justice, the Bangsamoro Peace Agreement and Federalism in the Philippines

2021 ◽  
pp. 1-28
Author(s):  
Jayson S. Lamchek ◽  
George B. Radics
Keyword(s):  
Human Rights ◽  
Transitional Justice ◽  
Armed Conflict ◽  
The Philippines ◽  
Peace Agreement ◽  
Authoritarian Rule ◽  
Human Rights Abuses ◽  
The Past ◽  
Land Dispossession ◽  
The Government

Abstract In the Philippines, transitional justice is plagued by questions about whether and how to deal with the past as well as whether and what kind of justice is possible in the present. In 2014, the government ended its armed conflict with Muslim secessionists by enacting a peace deal with transitional justice provisions, but also proposed federalism as a more lasting solution to conflict. This article reads the agreement’s ‘dealing with the past’ framework as reflecting a conventional approach. It then highlights continuing Muslim experiences of land dispossession and human rights abuses. It shows how transitional justice can come with uncertainty about what it means to “move forward,” what “past” to overcome, and how the past is related to “justice.” Furthermore, it argues that as the country increasingly veers towards authoritarian rule, conventional applications of transitional justice are further impeded. It explores how federalism receives more enthusiastic support than transitional justice.

Tracking Down the Missing Financial Link in Transitional Justice

2012 ◽  
Vol 1 (1) ◽  
pp. 54-92
Author(s):  
Juan Pablo Bohoslavsky
Keyword(s):  
Human Rights ◽  
Transitional Justice ◽  
Large Scale ◽  
Causal Link ◽  
Authoritarian Regimes ◽  
Human Rights Abuses ◽  
The Real ◽  
The Relationship ◽  
Economic Considerations ◽  
Choice Approach

This article argues that lenders providing financial assistance to authoritarian regimes should be held responsible for complicity if they knew or should have known that they would facilitate human rights abuses. Discussing the lenders’ role in a transitional justice context leads to a broadening of legal and institutional tools to channel this responsibility. This article starts by critically assessing the micro criteria traditionally used to understand the causal link between finance and human rights abuses, suggesting that a macro (i.e. holistic, interdisciplinary and casuistic) approach considering structures, processes and dynamics of sovereign financing should be applied when interpreting this link. It also explains how that traditional view is being challenged. A rational choice approach is taken to explain the most salient financial features of large-scale campaigns of gross human rights violations in order to understand the real relevance of funds in contexts of criminal regimes. The legal bases of responsibility for complicity are then discussed, separately presenting the arguments applied to private, multilateral and bilateral lenders. It also outlines how the missing financial link could be integrated into the domain of transitional justice, presenting, elaborating and assessing enforceability of concrete mechanisms to channel financial complicity in order to attain transitional goals. Finally, concluding remarks and challenges on the relationship between financial complicity and transitional justice are presented; and policy and economic considerations are made to better understand the real implications that incorporating the financial dimension into the transitional justice universe could have for a country.

Jurisdiction and Responsibility

2018 ◽  
Author(s):  
Marko Milanovic
Keyword(s):  
Human Rights ◽  
Armed Conflict ◽  
European Convention ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
The United Kingdom ◽  
European Court ◽  
Human Rights Treaties ◽  
The Many ◽  
The Relationship

This chapter examines the overarching trends in the jurisprudence of the European Court of Human Rights on questions of State jurisdiction in the sense of Article 1 of the European Convention on Human Rights and State responsibility, after its seminal judgment in the Al-Skeini case. While the chapter makes no claim to comprehensiveness of coverage, it first discusses the threshold question of the extraterritorial applicability of human rights treaties, and analyses the relationship between the notions of jurisdiction and responsibility, specifically looking at the recent Jaloud v Netherlands case. It then examines the issue of the relationship between human rights and international humanitarian law and the European Court’s judgment in Hassan v The United Kingdom. This chapter’s main thesis is that the Court is growing increasingly comfortable with applying the Convention extraterritorially and in armed conflict, as well as in directly invoking rules of international humanitarian law. However, a number of important caveats and uncertainties remain in the Court’s jurisprudence, which will inevitably be at issue in important cases currently pending or soon to be pending before it, eg the many interstate and individual applications dealing with the conflict in Ukraine.

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 gypsy’s lot: myth and reality

2017 ◽  
Author(s):  
Robert Jago
Keyword(s):  
Human Rights ◽  
Legal System ◽  
Lived Experiences ◽  
European Court ◽  
The Law ◽  
The Uk ◽  
The Relationship

This chapter focuses on the lived experiences of gypsies (collectively referred to as gypsies rather than Roma or travellers). The author argues that the relationship between the legal system and the specific lifestyle of this group is itself causing many tensions which cannot be separated from the long-held myths about gypsies. Jago shows how the standing of gypsies in the UK legal system has, in turn, become the object of various myths. He demonstrates how judgements by the European Court of Human Rights in favour of gypsy claims created in many an image of the law being always on the side of the gypsy. A perception which Jago demonstrates is far from true. After addressing the nature and role of myths in general the author illustrates the tension between positive, romanticised myths about the freedom of gypsy lifestyle and three derogatory myths, namely gypsies as "child-snatchers", as thieves and as "land grabbers". Jago illustrates that these myths are linked to deep-rooted beliefs around property and its ownership.

The Idea of Human Rights in Conditions of Hospital Treatment

2016 ◽  
pp. 1147-1165
Author(s):  
Bogusław Sygit ◽  
Damian Wąsik
Keyword(s):  
Human Rights ◽  
Civil Liberties ◽  
European Convention ◽  
Hospital Treatment ◽  
Political Rights ◽  
Human Rights Abuses ◽  
Cultural Rights ◽  
European Court ◽  
Definition Of ◽  
The Right

The aim of this chapter is describing of the influence of universal human rights and civil liberties on the formation of standards for hospital care. The authors present definition of the right to life and the right to health. Moreover in the section it is discussed modern standards of hospital treatment under the provisions of the International Covenant on Economic, Social and Cultural Rights: availability, accessibility, acceptability and quality. The authors discuss in detail about selected examples realization of human rights in the treatment of hospital and forms of their violation. During the presentation of these issues, the authors analyze a provisions of the International Covenant on Civil and Political Rights and European Convention on the Protection of Human Rights and Fundamental Freedoms and use a number of judgments of the European Court of Human Rights issued in matters concerning human rights abuses in the course of treatment and hospitalization.

14. Land Law and Human Rights

Land Law ◽  
2020 ◽  
pp. 593-629
Author(s):  
Chris Bevan
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
European Convention ◽  
Land Law ◽  
European Court ◽  
The Supreme Court ◽  
Rights Discourse ◽  
Human Rights Discourse ◽  
The Relationship

This chapter examines the relationship between land law and human rights. From a distinctly land law perspective, the human rights discourse has given rise to much debate, which continues to fuel much academic commentary including recent examination of the availability of horizontal effect in McDonald v McDonald in the Supreme Court and in the European Court of Human Rights. The chapter focuses chiefly on the two most pertinent provisions of the European Convention on Human Rights (ECHR) for land law; namely Art. 1 of the First Protocol and Art. 8 and reflects on the, at times, difficult relationship between land law and human rights.

7 International Treaties in Russian Judicial and Arbitral Practice

2020 ◽  
Author(s):  
Butler William E
Keyword(s):  
Human Rights ◽  
Russian Federation ◽  
European Convention ◽  
International Treaties ◽  
Judicial Practice ◽  
European Court ◽  
Fundamental Freedoms ◽  
Russian Constitution ◽  
The Russian Federation

This chapter explores the role of Soviet and post-Soviet Russian courts in interpreting and applying international treaties. It is clear that Soviet courts dealt more frequently with treaties than the scanty published judicial practice of that period suggests. This early body of treaties may also have contributed to the emergence in the early 1960s of priority being accorded to Soviet treaties insofar as they contained rules providing otherwise than Soviet legislation. Whatever the volume of cases involving treaties that were considered by Soviet courts prior to 1991, the inclusion of Article 15(4) in the 1993 Russian Constitution transformed the situation. A further transformation occurred when the Russian Federation acceded to the 1950 European Convention on Human Rights and Fundamental Freedoms and began to participate in the deliberations of the European Court for Human Rights in Strasbourg.

War, Conflict, and Human Rights

2010 ◽  
Author(s):  
Chandra Lekha Sriram ◽  
Olga Martin-Ortega ◽  
Johanna Herman
Keyword(s):  
Human Rights ◽  
Armed Conflict ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Human Rights Abuses ◽  
Identity Group ◽  
War And Conflict ◽  
Race Ethnicity ◽  
Territorial Claims ◽  
The Relationship

The relationship between human rights and armed conflict is rooted in historical debates among religious, philosophical, and international legal scholars about the nature of a just war, and appropriate conduct in war, which also have come to underpin and international humanitarian law. An understanding of the links between human rights, war, and conflict can begin with conflict analysis, as human rights violations can be both cause and consequence of conflict. In the most general sense, grievances over the denial or perceived denial of rights can generate social conflict. This may be the case where there is systematic discrimination based upon race, ethnicity, caste, religion, language, gender, or other characteristics. Alternatively, human rights abuses can emerge as a result of violent conflict. A conflict may have been undertaken by the parties primarily out of concern to promote a political or ideological agenda, or to promote the welfare of one or more identity group(s), or over access to resources. Human rights are also potentially transformative of conflicts and may make their resolution a greater challenge. Thus, conflicts that begin as conflicts over resources, religion, or ethnic or territorial claims, may, as they progress, create new grievances through the real and perceived violation of human rights by one or more parties to the conflict.

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