Diversity on the Bench of the European Court of Human Rights

2020 ◽  
pp. 479-493
Author(s):  
Angelika Nußberger ◽  
Freya Baetens
Keyword(s):  
Human Rights ◽  
Judicial Process ◽  
National Courts ◽  
Factors Influencing ◽  
European Court ◽  
International Court ◽  
The World ◽  
Individual Justice ◽  
Domestic Level

International courts differ from national courts in terms of the perception of their diversity. Factors that constitute the identity of adjudicators and are perceived as neutral at the domestic level, such as age, former profession, and cultural background, are not necessarily considered neutral in an international court. Conversely, factors that are not seen as acceptable domestically, such as membership of a political party, may be acceptable for judges at the international level. In order to understand the role of international judges in general and those on the European Court of Human Rights (ECtHR) bench in particular, this chapter scrutinizes the factors influencing the world views and personalities of judges and their effects on the judicial process (leaning towards collective or individual decision-making) as well as the extent to which the judiciary is perceived as trustworthy. The chapter also analyses the ECtHR’s continuous battle with the fundamental balancing act of dispensing individual justice while safeguarding the consistency of the system in its entirety. In the final section, the chapter examines the factors that unify the Court despite, or perhaps even because of, its diversity.

A rationale for the legitimacy of the world legal order: Kant’s idea of a cosmopolitan will

2020 ◽  
Vol 9 (3) ◽  
pp. 523-530
Author(s):  
CLAUDIO CORRADETTI
Keyword(s):  
Human Rights ◽  
Legal Order ◽  
European Court ◽  
The World ◽  
Global Constitutionalism

AbstractIn this contribution I provide an interpretation of Stone Sweet’s and Ryan’s cosmopolitan legal order in conjunction with a certain reconstruction of the Kantian cosmopolitan rationale. Accordingly, I draw attention to the connection between the notion of a general (cosmopolitan) will in Kant’s reinterpretation of Rousseau and the role of the European Court of Human Rights (ECtHR) as an ‘interpreter’ of such will. I conclude by suggesting that the opportunity of extending the CLO also accounts for a variety of other poliarchical regimes that, taken as a whole, illustrate the landscapes of contemporary global constitutionalism.

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 Non-pecuniary damages before the European Court of Human Rights: Forget the victim; it’s all about the state

2020 ◽  
Vol 33 (2) ◽  
pp. 335-369
Author(s):  
Veronika Fikfak
Keyword(s):  
Human Rights ◽  
Case Law ◽  
The State ◽  
European Convention ◽  
Human Rights Violations ◽  
International Treaty ◽  
European Court ◽  
International Court ◽  
Degrading Treatment ◽  
Individual Justice

AbstractThis article studies how the European Court of Human Rights (ECtHR, the Court) adjusts damages for human rights violations. The article empirically analyses 13 years of ECtHR’s case law in relation to Articles 2 (right to life), 3 (torture, inhuman and degrading treatment), and 5 (arbitrary detention) of the European Convention on Human Rights (ECHR, the Convention). The goal is to understand whether the statements made by the Court about the aims pursued through just satisfaction are confirmed in practice. Through an empirical quantitative study relating to non-pecuniary damages, the article analyses the practice of the Court in awarding non-pecuniary damages for human rights violations and compares it to the competing visions of the ECtHR’s function. In particular, I am interested in determining whether just satisfaction is aimed at redressing the suffering of the victim, her circumstances and vulnerability, or whether the focus is more on the respondent state, its conduct and its past human rights record. The answers to these questions will contribute to the debate whether the ECtHR’s role is one of delivering ‘individual justice’ or whether the Court is – as an international court enforcing an international treaty – focused on the ‘state’.

scholarly journals BLANKET BANS, SUBSIDIARITY, AND THE PROCEDURAL TURN OF THE EUROPEAN COURT OF HUMAN RIGHTS

2019 ◽  
Vol 68 (3) ◽  
pp. 611-638
Author(s):  
Peter Cumper ◽  
Tom Lewis
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Rights Protection ◽  
European Court ◽  
Domestic Level

AbstractIn recent years several commentators have identified a ‘procedural turn’ by the European Court of Human Rights whereby it places increased emphasis on the presence or absence and/or quality of legislative and judicial deliberations at domestic level when assessing the proportionality of allegedly rights-infringing measures. One area where the procedural turn has been particularly apparent is in relation to cases involving blanket bans on activities protected by the European Convention. On most accounts this move to ‘process-based review’ is causally linked to the principle of subsidiarity. In this article it is argued that whilst the shift to process-based review may generally have sound justifications in terms of the subsidiary role of the European Court as compared to States parties to the Convention, there are nevertheless several ironic downsides to this approach in the case of blanket bans, in terms of the certainty and predictability of the Court's case law. Furthermore, and more critically, there may be serious consequences in terms of the rights protection afforded to vulnerable minorities within States who may be at the receiving end of such legislative blanket bans.

scholarly journals Establishment of the International Criminal Court and the Role of USA: A Legal Appraisal

2014 ◽  
Vol 1 ◽  
pp. 51-69
Author(s):  
Saud Hassan
Keyword(s):  
Human Rights ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Criminal Court ◽  
Armed Conflicts ◽  
Humanitarian Law ◽  
National Courts ◽  
The World

In order to end global impunity of perpetration of heinous crimes against humanity and gross violation of human rights and to bring individual perpetrators to justice, international community felt the need for a permanent international criminal court.2 As the armed conflicts and serious violations of human rights and humanitarian law continue to victimize millions of people throughout the world, the reasons for an international criminal court became compelling.3 In many conflicts around the world, armies or rebel groups attack ordinary people and commit terrible human rights abuses against them. Often, these crimes are not punished by the national courts. Here the ICC is complementary to national criminal jurisdictions.4 The court only acts in cases where states are unwilling or unable to do so.5 The jurisdiction of the Court is not retrospective and binds only those States that ratify it.6 Unlike the International Court of Justice in The Hague, whose jurisdiction is restricted to states, the ICC has individualized criminal responsibility. However, the role of USA regarding the establishment and continuation of ICC has caused the organization fall in a trouble. The better cooperation of USA and other states could make the organization more active and effective as to its activities. The view of this paper is to analyze the role of USA towards the establishment, continuation and function of the International Criminal Court. DOI: http://dx.doi.org/10.3329/nujl.v1i0.18525 Northern University Journal of Law Vol.1 2010: 51-69

scholarly journals Amendments to the Constitution and Issues of Interpretation in National and International Justice

2020 ◽  
Vol 15 (12) ◽  
pp. 181-189
Author(s):  
M. L. Galperin
Keyword(s):  
Human Rights ◽  
International System ◽  
The European Union ◽  
Legal Doctrine ◽  
National Courts ◽  
Law And Politics ◽  
European Court ◽  
International Court ◽  
Russian Constitution ◽  
Broad Interpretation

The paper examines the changes made to the Constitution of the Russian Federation through the prism of the current problem of interpretation by international and national courts of the rule of law, since approaches to the interpretation of any legal text are of fundamental importance. The questions of interpretation have already ceased to be technical in nature. Different approaches to interpretation determine what the democracy and people’s rule mean, the relationship between law and politics, the place of the country in the international system of coordinates. Special attention is given to the term and the problem of "interpretation" — one of the novels of the Russian Constitution. The author addresses the question of what “an interpretation contrary to the Constitution” means. It is precisely the different understanding of the same norms by the courts, the use of different approaches to the interpretation of legal texts that can lead to conflicts and even conflicts of jurisdictions resulting in serious consequences. The paper critically evaluates the application of the so-called evolutionary, broad interpretation of the European Court of Human Rights, which encourages states to develop mechanisms in national legal systems to protect against arbitrary decisions of the international court. In addition to the evolutionary one, the paper examines other modern approaches to interpretation: consequentialism, textualism, and originalism. The problems of interpretation are considered based on an analysis of the practice of the European Court of Human Rights, the Court of the European Union, American and European legal doctrine.

The Echr Implications of the Investigation Provisions of the Draft Competition Regulation

2002 ◽  
Vol 51 (1) ◽  
pp. 55-89 ◽  
Author(s):  
Alan Riley
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fundamental Rights ◽  
European Convention ◽  
Notification System ◽  
National Courts ◽  
European Court ◽  
Council Regulation ◽  
Draft Regulation

In September 2000 the European Commission published its long-awaited proposed replacement for Regulation 17, the Proposal for a Council Regulation on the Implementation of the Rules on Competition laid down in Articles 81 and 82 of the Treaty (hereafter the draft regulation).1 The debate on the draft regulation has focused on the abolition of the notification system, the role of the national courts, and the role of the national competition authorities (hereafter the NCAs). However, there is one significant overlooked issue, namely the extent to which the investigation provisions of the draft regulation comply with the case law of the European Court of Human Rights (hereafter ECtHR).2 Given the paucity of the ECtHR's case law in 1961 it is understandable that the implications of the European Convention of Human Rights (hereafter ECHR) for the investigative provisions of what was to become Regulation 17 were not at that time given any great consideration by the European Parliament and the Council of Ministers. However, there is now an extensive human rights case law, developed by the Strasbourg authorities which, it is argued, casts a major shadow over the Commission's existing and proposed investigative powers. It is further argued that the case law of the European Court of Justice (hereafter ECJ) and the Court of First Instance (hereafter CFI) in respect of fundamental rights as general principles of law, does not provide an equivalent standard of protection to that offered by the ECtHR.

Inter-regime conversations: What barriers persist for individuals in international law?

2021 ◽  
pp. 1-14
Author(s):  
Nicholas J. Diamond ◽  
Kabir A. N. Duggal
Keyword(s):  
Human Rights ◽  
International Law ◽  
Structural Reforms ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The World ◽  
Treaty Interpretation ◽  
The Individual

Abstract Individuals have long occupied a precarious position within international law. Historically, conceived as the relation between states, international law rarely saw a need to consider individual claims; it was, instead, the role of states to bring claims on behalf of their nationals. As international law has become increasingly fragmented, however, globalization has thrust the individual onto the international legal plane. Within this landscape, we briefly consider individuals’ claims across three separate international regimes: (i) the International Court of Justice, (ii) investment treaties, and (iii) the World Trade Organization. We find that barriers for individuals’ recognition as rights holders persist across each. First, jurisdictional barriers remain fundamentally problematic for recognizing individuals’ claims. Second, the longstanding focus on treaty interpretation techniques has yielded little, if any, demonstrable impact on recognizing individuals’ rights. Third, mere reliance on reflecting human rights values, rather than specific and concrete structural reforms, has proven incompatible with realizing individuals’ rights within these three systems. Individuals qua rights holders have, rather acutely, recently experienced deeply troubling human rights violations on several fronts. Fundamentally, international law must protect human rights. This moment invites us to consider the systems on the international legal plane for individuals to seek such remedy and what barriers must be addressed to further such efforts.

scholarly journals The international legal basis for implementation of judgments of the european court of human rights into the domestic legal system

2021 ◽  
pp. 31-35
Author(s):  
Guliam Umid
Keyword(s):  
Human Rights ◽  
Legal System ◽  
Case Law ◽  
Legal Systems ◽  
Legal Certainty ◽  
Progressive Development ◽  
National Courts ◽  
European Court ◽  
International Court ◽  
The Impact

An analysis of the international legal bases of implementation of decisions of the European Court of Human Rights to the national legislations of the member states of the Council of Europe is carried out. Such implementation takes various forms, and in general there is no single implementation mechanism. At the same time, the importance of implementing decisions of the European Court of Human Rights lies in the state's fulfillment of its obligations both to the world community of states and to its own citizens. Forms and methods that ensure the progressive development of national law, taking into account the practice of international courts, are considered. The synthetic research method determines the impact of ECtHR decisions on the structure of national law, which stimulates the transformation of its entire branches. It is demonstrated, how the ECtHR promotes the formation of progressive legal institutions in legal systems, exerting organizational and civilizational influence on the legal systems of states. It is emphasized, that the principle of legal certainty, by which the international court assesses vague and insufficiently clear provisions of national law, is fundamental for the implementation of the case law of the ECtHR into national laws. With this influence, the ECtHR determines the nature of lawmaking and law enforcement in a country. As a result, it is concluded, that the most effective mechanism for implementing the principle of legal certainty in a state is the adoption of general measures, contained in the pilot decisions of the ECtHR. The second important mechanism is the application of the rules of law by national courts, taking into account the case law of the ECtHR, which ensures the interpretation of human rights rules in a way that is most acceptable to the national legal system

scholarly journals ROLE OF JUDGES’ DIALOG IN PROVING OF THE RULE OF LAW

2017 ◽  
pp. 0-0
Author(s):  
Ханлар Гаджиев ◽  
Khanlar Gadzhiev
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Social Relations ◽  
European Convention ◽  
The Rule Of Law ◽  
National Courts ◽  
European Court ◽  
Protection Of Human Rights ◽  
Legal Space

The article discusses the problem of interpretation of the provisions of the European Convention on human rights by European Court of Human Rights, as well as the development of dialogue between judges of different levels, aimed at the formation of the European “common” law. Placing at the forefront the principle of the rule of law as the basis for all the guarantees of human rights, the author substantiates the necessity of the interaction of various levels courts, based on mutual respect, dialogue of the courts, what will undoubtedly lead to the enrichment of the legal system, searching for the most complete and effective regulation of social relations. According to the author, the effectiveness of interaction between courts is based primarily on a shared understanding of the importance of the activities of ECtHR judges in the development of common approaches to the protection of human rights and consolidation of the efforts in search of forming a common legal space. Using the example of some cases considered by the ECtHR, the article illustrated the options of interaction of the Court with national courts. The article reveals some problematic issues in the activity of the ECtHR, in particular the lack of involvement the principle of harmonious interpretation.

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