The Transitional Justice Model in Colombia vis-à-vis the Inter-American Human Rights SystemAmidst the Conventionality Control and the National Margin of Appreciation

2021 ◽  
pp. 331-350
Author(s):  
Juana I. Acosta-López ◽  
Cindy Vanessa Espitia Murcia
Keyword(s):  
Human Rights ◽  
Transitional Justice ◽  
Integrated System ◽  
Transitional Process ◽  
European Court ◽  
Margin Of Appreciation ◽  
Lasting Peace ◽  
Justice Model

This chapter assesses the international consequences of the transitional justice model in Colombia. It demonstrates that the Colombian transitional justice model, and particularly the integrated system for truth, justice, reparation, and non-repetition, are likely to successfully withstand the 'conventionality control' by the Inter-American Court of Human Rights (ICtHR). The chapter then presents a model to be used by the Inter-American organs when analysing the Colombian transitional justice model. In seeking to accommodate the needs of the transitional process with the demands for justice, the model proposes a harmonizing technique between the notions of 'conventionality control', developed by the Inter-American Court since 2006, and the 'national margin of appreciation' doctrine, developed by the European Court of Human Rights (ECtHR). This harmonizing approach would allow States to implement the most adequate mechanisms for the consolidation of a lasting peace scenario.

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.

Muslim Reformists, Female Citizenship, and the Public Accommodation of Islam in Liberal Democracy

2012 ◽  
Vol 5 (1) ◽  
pp. 2-35 ◽  
Author(s):  
Mohammad Fadel
Keyword(s):  
Human Rights ◽  
Gender Equality ◽  
Islamic Law ◽  
European Convention ◽  
Political Equality ◽  
The Public ◽  
European Court ◽  
Margin Of Appreciation ◽  
Gender Hierarchy ◽  
Normative Justification

AbstractThe European Court of Human Rights (ECHR), in a trilogy of cases involving Muslim claimants, has granted state parties to the European Convention on Human Rights a wide margin of appreciation with respect to the regulation of public manifestations of Islam. The ECHR has justified its decisions in these cases on the grounds that Islamic symbols, such as the ḥijāb, or Muslim commitments to the shari‘a — Islamic law — are inconsistent with the democratic order of Europe. This article raises the question of what kinds of commitments to gender equality and democratic decision-making are sufficient for a democratic order, and whether modernist Islamic teachings manifest a satisfactory normative commitment in this regard. It uses the arguments of two modern Muslim reformist scholars — Yūsuf al-Qaraḍāwī and ‘Abd al-Ḥalīm Abū Shuqqa — as evidence to argue that if the relevant degree of commitment to gender equality is understood from the perspective of political rather than comprehensive liberalism, doctrines such as those elaborated by these two religious scholars evidence sufficient commitment to the value of political equality between men and women. This makes less plausible the ECHR's arguments justifying a different treatment of Muslims on account of alleged Islamic commitments to gender hierarchy. It also argues that in light of Muslim modernist conceptions of the shari‘a, there is no normative justification to conclude that faithfulness to the shari‘a entails a categorical rejection of democracy as the ECHR suggested.

When interpreting domestic legislation courts must, so far as it is possible, read and give effect to such legislation in a way which is compatible with the Convention rights; see s3(1). Hence domestic courts are given a degree of latitude – reference to the jurisprudence of Strasbourg is mandatory – but it need only be taken into account. Legislation must be construed in a manner compatible with the Convention but only so far as is possible. Three points are particularly worth noting: • When applying the European Convention on Human Rights a domestic court should be prepared to take a generous view as to whether an activity falls within the protection afforded by the Convention’s articles. • The Convention is to be regarded as a ‘living’ or ‘dynamic’ instrument to be interpreted in the light of current conditions. More recent decisions of the European Court of Human Rights will be regarded as carrying more weight than earlier decisions. • Where an Article of the Convention permits some state interference with the enjoyment of a right, a court assessing the extent to which that interference is compatible with the Convention should consider (i) whether the interference is provided for by law; (ii) whether it serves a legitimate purpose; (iii) whether the interference is proportionate to the end to be achieved; (iv) whether it is necessary in a democratic society; (v) whether it is discriminatory in operation; and (vi) whether the state should be allowed a margin of appreciation in its compliance with the Convention – that is, be allowed to apply the Convention to suit national standards. The ‘quality of law test’

1996 ◽  
pp. 88-88
Keyword(s):  
Human Rights ◽  
National Standards ◽  
European Convention ◽  
Domestic Court ◽  
European Court ◽  
Margin Of Appreciation ◽  
Domestic Legislation ◽  
Domestic Courts ◽  
State Interference

How Freedom of Expression Defines the Parody Exception

2019 ◽  
pp. 134-166
Author(s):  
Sabine Jacques
Keyword(s):  
United States ◽  
Human Rights ◽  
Intellectual Property Rights ◽  
Freedom Of Expression ◽  
The United States ◽  
Fundamental Rights ◽  
The United Kingdom ◽  
European Court ◽  
Margin Of Appreciation ◽  
Proportionality Test

This chapter examines the relevance of freedom of expression to the parody exception. It first considers the debate on the interaction between intellectual property rights and fundamental rights before discussing the ways in which freedom of expression may address the excessive expansion of exclusive rights as well as the outer limits of the parody exception. The chapter explains how human rights are embodied in the parody exception and how factors established in the European Court of Human Rights jurisprudence may legitimately restrict freedom of expression. It also explores how national legislators and courts in France, Australia, Canada, the United States, and the United Kingdom strike a balance between freedom of expression values and copyright values. It shows that the outer limits of the parody exception in each jurisdiction are determined by the influence of freedom of expression on copyright, the margin of appreciation, and the proportionality test.

Handyside v United Kingdom (1979–80) 1 EHRR 737, European Court of Human Rights

2020 ◽  
Author(s):  
Thomas E. Webb
Keyword(s):  
Human Rights ◽  
United Kingdom ◽  
Public Law ◽  
European Convention ◽  
European Court ◽  
Margin Of Appreciation ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Domestic Law

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Handyside v United Kingdom (1979-80) 1 EHRR 737, European Court of Human Rights. This case concerned a book which breached the Obscene Publications Act 1959. The publisher, Handyside, contended that the domestic law (the 1959 Act) breached his Article 10 rights under the European Convention on Human Rights. The case introduced the concept of the ‘margin of appreciation’ accorded to states as regards the implementation of convention rights. The case predates the passage of the Human Rights Act 1998. The document also includes supporting commentary from author Thomas Webb.

scholarly journals Tribunal Europeo de Derechos Humanos: mutaciones y desafíos. Repertorio bibliográfico (2007-2018)

2019 ◽  
pp. 635
Author(s):  
Lucía Alonso Sanz
Keyword(s):  
Human Rights ◽  
Derechos Humanos ◽  
European Court ◽  
Margin Of Appreciation ◽  
Selection Of

El presente repertorio ofrece una selección de obras bibliográficas (libros, capítulos de libro y artículos de revistas) sobre el Tribunal Europeo de Derechos Humanos publicadas desde hace algo más de una década. Estos trabajos reflejan algunos de los desafíos a los que se ha enfrentado el Tribunal en los últimos tiempos, y se centran en temas como la organización de la institución y el procedimiento que ante la misma se sustancia, la ejecución y los efectos de sus sentencias, su interacción o diálogo con otros tribunales, o ciertos principios y conceptos que orientan su actuación, como son la subsidiariedad, el consenso y el margen de apreciación nacional.The present repertoire gathers a selection of various doctrinal contributions (books, chapters and papers) on the European Court of Human Rights which have been published in the last decade. They are a reflection of some of the challenges that the Court has lately faced, and they tackle issues as its organization, the procedure and access to its jurisdiction, the enforcement of its judgments and their impact, its dialogue with other courts, and some principles or concepts guiding its practice, such as the margin of appreciation, consensus and subsidiarity.

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