The J.K. DecalogueA Paradigm Shift in Dealing with Asylum Cases in Strasbourg?

2021 ◽  
pp. 85-103
Author(s):  
Ledi Bianku
Keyword(s):  
Human Rights ◽  
International Law ◽  
Paradigm Shift ◽  
Traditional Approach ◽  
New Approach ◽  
Refugee Law ◽  
European Court ◽  
The Absolute ◽  
International Refugee Law ◽  
Grand Chamber

This chapter addresses the approach the European Court of Human Rights (ECHR) takes in asylum cases from the perspective of international refugee law doctrines. First, the chapter discusses the traditional approach in dealing with asylum cases in Strasbourg, i.e. starting the analysis from the basic promise of the rights of states to control the entry, residence, and expulsion of aliens. The Court considers that this approach is based on well-established international law and the chapter summarises the international law voices that inspire this approach, which has been taken by the Court for almost thirty years. The second part of the chapter analyses the Grand Chamber judgment in the case of J.K. v Sweden and the attempt by the Court, through this judgment, to elaborate general principles applicable in asylum cases in Strasbourg. The analysis of the hierarchy of these ten general principles by the Court in the J.K. judgment stems from the question of whether the Court is modifying its traditional approach in dealing with asylum cases and moving towards a new approach which is inspired by another line of thinking in international law. It also seems that with this new approach the Court gives precedence in its analysis of asylum cases to the absolute character of rights guaranteed by Article 3 of the ECHR. This would make the Court’s analysis of asylum cases more coherent with other cases when Article 3 rights are at stake.

Domestic Judicial Design by International Human Rights Courts

2015 ◽  
Vol 109 (4) ◽  
pp. 713-760 ◽  
Author(s):  
David Kosař ◽  
Lucas Lixinski
Keyword(s):  
Human Rights ◽  
World War Ii ◽  
International Law ◽  
Environmental Law ◽  
Armed Conflicts ◽  
International Criminal Law ◽  
Refugee Law ◽  
European Court ◽  
The Law ◽  
International Refugee Law

Regional human rights courts in Europe and the Americas came into being in the wake of World War II. The European Court of Human Rights (ECHR) and Inter-American Court of Human Rights (IACHR) were established in order to adjudicate on alleged violations of the rights of individuals. Yet, since their inception these courts have also influenced other areas of international law. A part from their impact on general international law, their case law has had significant spill over effects on international criminal law, international refugee law, international environmental law, the law of armed conflicts, and the law of the sea.

THE DIVERGING APPROACHES OF THE EUROPEAN COURT OF HUMAN RIGHTS IN THE CASES OF NADA AND AL-DULIMI

2015 ◽  
Vol 64 (2) ◽  
pp. 445-460 ◽  
Author(s):  
Stephan Hollenberg
Keyword(s):  
Human Rights ◽  
International Law ◽  
Present Article ◽  
European Court ◽  
Conflicting Interests ◽  
Grand Chamber

AbstractThe UN Security Council's practice of targeted sanctions has resulted in serious limitations on the enjoyment of targeted individuals' human rights. The European Court of Human Rights pronounced on this issue in two instances. In the cases of Nada (Grand Chamber judgment) and al-Dulimi (Chamber judgment) the Court was asked to evaluate the lawfulness of the domestic implementation of sanction measures against the ECHR. Surprisingly, each Chamber opted for a different solution. The present article will discuss these solutions and evaluate them within the broader framework of international law, the Court's jurisprudence, and the conflicting interests involved.

Part II Sources, Ch.14 National Constitutions and Refugee Protection

2021 ◽  
Author(s):  
Lester Eve
Keyword(s):  
Human Rights ◽  
International Law ◽  
Constitutional Law ◽  
Critical Dimension ◽  
Methodological Framework ◽  
Human Rights Law ◽  
Refugee Protection ◽  
Refugee Law ◽  
International Refugee Law ◽  
The Relationship

This chapter explores how national constitutional frameworks add a critical dimension to refugee protection. Given the variability in the protective value of national constitutions for refugees, it considers how States draw strength from their constitutions in response to refugee movements and why they do so in particular ways. The chapter seeks to elucidate some of the complexities in the relationship between constitutional law and international refugee and human rights law, considering the relevance of constitutional text and context, State perspectives on the place of international law, and the extent to which constitutional law has shaped, and continues to shape, international law. The chapter offers a taxonomy as a methodological framework for differentiating these complexities, which suggests that the relationship between constitutional law and international refugee law might be understood in one of three ways: as symbiotic, ambivalent, or antagonistic. It then applies this framework to three case studies. It suggests that this approach may help us to think more strategically about how to harness the protective possibilities of constitutional law as well as wrestle more productively with constitutional law’s limitations.

Marguš v. Croatia (Eur. Ct. H.R.)

2014 ◽  
Vol 53 (5) ◽  
pp. 751-809 ◽  
Author(s):  
Elizabeth Stubbins Bates
Keyword(s):  
Human Rights ◽  
International Law ◽  
War Crimes ◽  
Fair Trial ◽  
European Convention ◽  
European Court ◽  
Grand Chamber ◽  
The Right

On May 27, 2014, the Grand Chamber of the European Court of Human Rights rendered its judgment in the case of Marguš v. Croatia. The applicant, who had served in the Croatian Army, was convicted of war crimes in 2007, following an earlier decision in 1997 to grant him amnesty for these crimes. A majority of the Grand Chamber drew on Articles 2 and 3 of the European Convention of Human Rights (the Convention) and general international law to argue that Article 4 of Protocol No. 7 of the Convention (the right not to be tried or punished twice) was inapplicable in these circumstances and that the applicant’s claim on this point was inadmissible. The Grand Chamber also ruled that there had been no violation of Article 6 of the Convention (the right to a fair trial).

scholarly journals Unfolding Africa's Impact on the Development of International Refugee Law

2021 ◽  
pp. 1-25
Author(s):  
Sara Palacios-Arapiles
Keyword(s):  
Human Rights ◽  
International Law ◽  
Asylum Seekers ◽  
Legal Framework ◽  
Refugee Convention ◽  
Refugee Law ◽  
International Refugee Law ◽  
Refugees And Asylum Seekers

Abstract This article traces the contributions of African states to the development of international refugee law and explores the role African human rights supervisory bodies have played in the interpretation and application of this field of law. While Africa's contributions to international refugee law are often overlooked, this article sets out to identify Africa's involvement in the drafting process of the UN Refugee Convention and its 1967 Protocol. It also explores the legal framework for refugees in Africa, in particular the OAU Refugee Convention and the Bangkok Principles on Status and Treatment of Refugees, and the extent to which these two instruments have enriched international refugee law. The article argues that some of their provisions may provide evidence of customary rules of international law. Lastly, it examines some of the authoritative pronouncements made by African human rights supervisory bodies, in so far as they adopt a progressive approach to interpreting the rights of refugees and asylum-seekers.

scholarly journals Un-signing Geneva: legal pragmatics in the management of asylum

2018 ◽  
Vol 15 (1) ◽  
pp. 20-32 ◽  
Author(s):  
Marc de Leeuw ◽  
Sonja van Wichelen
Keyword(s):  
Human Rights ◽  
International Law ◽  
Asylum Seekers ◽  
The State ◽  
Late Modernity ◽  
Refugee Law ◽  
Domestic Legislation ◽  
International Refugee Law

AbstractIn the last decade, several states have increasingly tried to ‘un-sign’ to their humanitarian obligations by seeking ways to circumvent European or international law. Through an analysis of a recently passed act in Australia on the management of asylum seekers, this paper examines how the practice of ‘un-signing’ can be seen as a symptomatic instance of reconfiguring asylum in late modernity. We focus on the proliferation of ‘legal pragmatics’ in the management of refugees. By ‘legal pragmatics’, we refer to theprocessualways in which the state attempts to hollow out international refugee law and in which courts respond by reinstating it. Normative consequences are thecriminalisationand thejuridificationof refugees. We argue that the proliferation of ‘legal pragmatics’ illuminates not only the ever-expanding reach of neoliberal changes in domestic legislation, but also the limitations of human rights to adequately respond to the neoliberal vicissitudes of humanitarian government.

Comparative Views on the Right to Vote in International Law

2018 ◽  
Author(s):  
Shai Dothan
Keyword(s):  
Human Rights ◽  
International Law ◽  
National Courts ◽  
European Court ◽  
Right To Vote ◽  
The Right ◽  
Democratic Elections ◽  
The Way

There is a consensus about the existence of an international right to vote in democratic elections. Yet states disagree about the limits of this right when it comes to the case of prisoners’ disenfranchisement. Some states allow all prisoners to vote, some disenfranchise all prisoners, and others allow only some prisoners to vote. This chapter argues that national courts view the international right to vote in three fundamentally different ways: some view it as an inalienable right that cannot be taken away, some view it merely as a privilege that doesn’t belong to the citizens, and others view it as a revocable right that can be taken away under certain conditions. The differences in the way states conceive the right to vote imply that attempts by the European Court of Human Rights to follow the policies of the majority of European states by using the Emerging Consensus doctrine are problematic.

On the Legality Under International Law of the Criminalization or Suppression of the Expression of Solidarity to Refugees

2020 ◽  
Vol 114 ◽  
pp. 102-113
Author(s):  
Obiora Chinedu Okafor
Keyword(s):  
International Law ◽  
Asylum Seekers ◽  
Legal Protection ◽  
Refugee Law ◽  
International Refugee Law

As Professor Jastram has noted, in and of itself, international refugee law is not explicit enough on the issue at hand. It is not clear enough in protecting persons who come in aid of, or show solidarity to, refugees or asylum-seekers. That does not mean, however, that no protections exist for them at all in other, if you like, sub-bodies of international law. This presentation focuses on the nature and character of those already existing international legal protections, as well as on any protection gaps that remain and recommendations on how they can be closed. It should be noted though that although the bulk of the presentation focuses on the relevant international legal protection arguments, this presentation begins with a short examination of the nature of the acts of criminalization and suppression at issue.

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.

The European Convention on Human Rights and International Law

2007 ◽  
Vol 56 (2) ◽  
pp. 217-231 ◽  
Author(s):  
Luzius Wildhaber
Keyword(s):  
Human Rights ◽  
International Law ◽  
Comparative Law ◽  
Case Law ◽  
European Convention ◽  
Mutual Relationship ◽  
Public International Law ◽  
European Court ◽  
Special Character ◽  
British Institute

AbstractThis article is an expanded and footnoted version of the lectur given at the British Institute of International and Comparative Law on Tuesday 21 March 2006, entitled ‘International Law in the European Court of Human Rights’.The article begins with some comparative comments on the application of the European Convention on Human Rights in monistic and dualistic systems It then discusses in detail the European Court's case law which confirms that the Convention, despite its special character as a human rights treaty, is indeed part of public international law. It concludes that the Convention and international law find themselves in a kind of interactive mutual relationship. checking and buildine on each other.

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