The European Court of Human Rights on the UN Individual Counter-Terrorist Sanctions Regime: Safeguarding Convention Rights and Harmonising Conflicting Norms in Nada v. Switzerland

2014 ◽  
Vol 83 (1) ◽  
pp. 39-60 ◽  
Author(s):  
Auke Willems
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Due Process ◽  
United Nations Security Council ◽  
European Convention ◽  
European Court ◽  
The United Nations ◽  
Legal Contexts ◽  
Effective Remedy ◽  
Due Process Rights

This article analyses the judgment of the European Court of Human Rights in the case of Nada v. Switzerland from the perspective of individual due process rights and the wider constitutional implications. In Nada v. Switzerland, the Strasbourg Court was asked to rule on the conformity of a State Party to the European Convention on Human Rights in its implementation of the United Nations individual counter-terrorist sanctions regime. The Court found violations of an applicant’s right to respect for private and family life and right to an effective remedy. What the Court did not do was rule on the wider questions of hierarchy, i.e. the relationship between the Convention and binding resolutions by the United Nations Security Council that have precedence over any other international agreement by virtue of Article 103 UN Charter. By choosing to harmonise norms originating in different legal contexts, the Court avoided this fundamental question. However, elements of pluralism and constitutionalism can be found in the judgment. By not giving precedence to the United Nations sanctions regime, the Court has implicitly made a statement about the question of hierarchy, while at the same time managing to uphold its primary task of safeguarding States Parties’ compliance with the Convention.

The European Court of Human Rights: Nada v. Switzerland

2013 ◽  
Vol 52 (1) ◽  
pp. 268-322 ◽  
Author(s):  
Miša Zgonec-Rožej
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Security Council ◽  
Family Life ◽  
United Nations Security Council ◽  
European Convention ◽  
European Court ◽  
Grand Chamber ◽  
Effective Remedy ◽  
The Right

On September 12, 2012, the Grand Chamber of the European Court of Human Rights (the Court) ruled in Nada v. Switzerland that the implementation by Switzerland of the United Nations Security Council Al-Qaida Sanctions Regime violated the right to private and family life under Article 8, and the right to an effective remedy under Article 13 of the European Convention on Human Rights (ECHR).

Stichting Mothers of Srebrenica v. Netherlands

2013 ◽  
Vol 107 (4) ◽  
pp. 884-890 ◽  
Author(s):  
Jacob Katz Cogan
Keyword(s):  
Human Rights ◽  
United Nations ◽  
European Convention ◽  
National Authority ◽  
European Court ◽  
The United Nations ◽  
Effective Remedy ◽  
The Right ◽  
Republika Srpska ◽  
Right Of Access

On June 11, 2013, in Stichting Mothers of Srebrenica, a chamber of the European Court of Human Rights found that the Dutch courts’ grant of immunity to the United Nations in a case brought by and on behalf of relatives of individuals killed by the Army of the Republika Srpska in and around Srebrenica in July 1995 did not run afoul of Articles 6 and 13 of the European Convention on Human Rights (Convention). Those provisions guarantee, respectively and among other things, the right of access to a court and the right to “an effective remedy before a national authority” if any Convention right is violated. Having found that the challenged decisions accorded with Dutch obligations under the Convention, the chamber declared the application before the Court inadmissible as “manifestly ill-founded” and “rejected” it pursuant to Article 35(3)(a) and 4. The chamber’s decision was unanimous.

scholarly journals Hard Protection through Soft Courts? Non-Refoulement before the United Nations Treaty Bodies

2020 ◽  
Vol 21 (3) ◽  
pp. 355-384
Author(s):  
Başak Çalı ◽  
Cathryn Costello ◽  
Stewart Cunningham
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
United Nations ◽  
Dimensional Analysis ◽  
European Convention ◽  
Individual Decision ◽  
Individual Decision Making ◽  
Original Dataset ◽  
European Court ◽  
The United Nations

AbstractThis Article comparatively analyses how the prohibition of refoulement is interpreted by United Nations Treaty Bodies (UNTBs) in their individual decision-making, where we suggest they act as “soft courts.” It asks whether UNTBs break ranks with or follow the interpretations of non-refoulement of the European Court of Human Rights. This investigation is warranted because non-refoulement is the single most salient issue that has attracted individual views from UNTBs since 1990. Moreover, our European focus is warranted as nearly half of the cases concern states that are also parties to the European Convention on Human Rights. Based on a multi-dimensional analysis of non-refoulement across an original dataset of over 500 UNTB non-refoulement cases, decided between 1990–2020, as well as pertinent UNTB General Comments, the Article finds that whilst UNTBs, at times, do adopt a more progressive position than their “harder” regional counterpart, there are also instances where they closely follow the interpretations of the European Court of Human Rights and, on occasion, adopt a more restrictive position. This analysis complicates the view that soft courts are likely to be more progressive interpreters than hard courts. It further shows that variations in the interpretation of non-refoulement in a crowded field of international interpreters present risks for evasion of accountability, whereby domestic authorities in Europe may favor the more convenient interpretation, particularly in environments hostile to non-refoulement.

Human rights in the fight against terrorism: Sanctions regimes of the United Nations Security Council

2020 ◽  
Vol 15 (1-3) ◽  
pp. 35-42
Author(s):  
Mariya Hristozova
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Security Council ◽  
United Nations Security Council ◽  
World Peace ◽  
Islamic State ◽  
The Social ◽  
The United Nations ◽  
Effective Remedy ◽  
The Right

In the last decade, the growing num­ber of acts of terrorism that threaten world peace and security, as well as the funda­mental values in every democratic socie­ty, in particular respect for fundamental human rights, have called for more active action by the international community in the struggle with terrorism. In this regard, the United Nations Security Council adopted a number of resolutions establish­ing sanctions regimes against the Islamic State of Iraq and Levant (IDES), Al-Qai­da and the Taliban, and other individuals, groups, and related entities and suspected terrorist suspects. Despite the social pur­pose of these regimes, they created se­rious preconditions for violations of the human rights of the affected subjects, in particular the right to a fair trial, the right to an effective remedy, the right to prop­erty, the right of the persons concerned to be informed of the charges against them, the right to be heard and other procedur­al rights. This circumstance calls for re­forms to be made to the arrangements in place to ensure fundamental human rights in the fight against terrorism.

scholarly journals Asset Freezing at the European and Inter-American Courts of Human Rights: Lessons for the International Criminal Court, the United Nations Security Council and States

2020 ◽  
Vol 20 (3) ◽  
pp. 502-525
Author(s):  
Daley J Birkett
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Security Council ◽  
International Criminal Court ◽  
International Criminal ◽  
Case Law ◽  
Criminal Court ◽  
United Nations Security Council ◽  
European Convention ◽  
The United Nations

Abstract This article examines the human rights implications of the asset freezing processes available to the International Criminal Court and the United Nations Security Council. It does so through the lens of the case law of the European Court of Human Rights and the Inter-American Court of Human Rights, from whose jurisprudence, although not uniform, a number of principles can be distilled. By scrutinising a series of cases decided under the European Convention on Human Rights and American Convention on Human Rights, respectively, the article demonstrates that the rights to the peaceful enjoyment of property and to respect for one’s private and family life, home and correspondence are necessarily implicated by the execution of asset freezing measures in criminal and administrative contexts. The article concludes that, considering the human rights constraints placed on the exercise of their powers, both the International Criminal Court and United Nations Security Council, as well as States acting at their request, must pay attention to this case law with a view to respecting the human rights of those to whom asset freezing measures are applied.

9. Freedom from discrimination

2017 ◽  
Author(s):  
Bernadette Rainey
Keyword(s):  
Human Rights ◽  
Northern Ireland ◽  
United Nations ◽  
Case Law ◽  
European Convention ◽  
Essential Information ◽  
European Court ◽  
The United Nations ◽  
The Uk ◽  
Nations Development

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter focuses on freedom from discrimination, beginning with an overview of equality as a contested concept as well as formal and substantive forms of equality, and then examines the United Nations’ development of specific treaty and charter mechanisms to protect individuals against discrimination. It then discusses Article 14 of the European Convention on Human Rights (ECHR), which gives limited protection against discrimination but has been expanded by the European Court of Human Rights (ECtHR) in its case law and via Protocol 12. Finally, the chapter examines the consolidation and expansion of equality laws in the UK (except for Northern Ireland) under the Equality Act 2010.

Standardy należytego uzasadnienia w świetle orzecznictwa Trybunału Konstytucyjnego i Europejskiego Trybunału Praw Człowieka

2014 ◽  
pp. 33-48
Author(s):  
Przemysław Florjanowicz-Błachut
Keyword(s):  
European Union ◽  
Human Rights ◽  
Due Process ◽  
Case Law ◽  
Fair Trial ◽  
Fundamental Rights ◽  
European Convention ◽  
European Court ◽  
Judicial Reasoning ◽  
The Right

The core function of the judiciary is the administration of justice through delivering judgments and other decisions. The crucial role for its acceptance and legitimization by not only lawyers, but also individulas (parties) and the hole society plays judicial reasoning. It should reflect on judge’s independence within the exercise of his office and show also judicial self-restraint or activism. The axiology and the standards of proper judicial reasoning are anchored both in constitutional and supranational law and case-law. Polish Constitutional Tribunal derives a duty to give reasoning from the right to a fair trial – right to be heard and bring own submissions before the court (Article 45 § 1 of the Constitution), the right to appeal against judgments and decisions made at first stage (Article 78), the rule of two stages of the court proceedings (Article 176) and rule of law clause (Article 2), that comprises inter alia right to due process of law and the rule of legitimate expactation / the protection of trust (Vertrauensschutz). European Court of Human Rights derives this duty to give reasons from the guarantees of the right to a fair trial enshrined in Article 6 § 1 of European Convention of Human Rights. In its case-law the ECtHR, taking into account the margin of appreciation concept, formulated a number of positive and negative requirements, that should be met in case of proper reasoning. The obligation for courts to give sufficient reasons for their decisions is also anchored in European Union law. European Court of Justice derives this duty from the right to fair trial enshrined in Articles 6 and 13 of the ECHR and Article 47 of the Charter of Fundamental Rights of the European Union. Standards of the courts reasoning developed by Polish constitutional court an the European courts (ECJ and ECtHR) are in fact convergent and coherent. National judges should take them into consideration in every case, to legitimize its outcome and enhance justice delivery.

O’Keeffe v. Ireland: overview and analysis

2017 ◽  
Author(s):  
James Gallen
Keyword(s):  
Human Rights ◽  
Sexual Abuse ◽  
Tort Law ◽  
European Convention ◽  
Human Right ◽  
Vicarious Liability ◽  
European Court ◽  
Effective Remedy ◽  
The Right ◽  
The Impact

James Gallen’s chapter reviews the case and the contributions of Adrian Hardiman and Conor O’Mahony to this book. Gallen argues that their discussion reveals the tension between the principle of subsidiarity and the right to effective protection and an effective remedy in the European Convention on Human Rights. The chapter argues that the case of O’Keeffe v Ireland also raises concerns about the European Court of Human Right methodology for the historical application of the Convention and about the interaction of Article 3 positive obligations with vicarious liability in tort. A further section examines the impact of the decision for victims of child sexual abuse and identifies that the decision provides the potential for an alternative remedy to the challenging use of vicarious liability in Irish tort law.

Art.20 Personal Mobility

2018 ◽  
Author(s):  
Kovudhikulrungsri Lalin ◽  
Hendriks Aart
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Human Beings ◽  
Persons With Disabilities ◽  
Personal Mobility ◽  
Cultural Activities ◽  
European Court ◽  
United Nations Convention ◽  
The United Nations ◽  
The Right

This chapter examines Article 20 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD). Personal mobility is a prerequisite for inclusion in a society. According to the European Court of Human Rights, to be mobile and to have access to transport, housing, cultural activities, and leisure is a precondition for the ‘right to establish and develop relations with other human beings’, ‘in professional or business contexts as in others’. The CRPD does not establish new rights for persons with disabilities. It is merely thought to identify specific actions that states and others must take to ensure the effectiveness and inclusiveness of all human rights and to protect against discrimination on the basis of disability. However, the fact that there is no equivalent of the right to personal mobility in any other human rights treaty makes it particularly interesting to examine the genesis and meaning of this provision.

6 Responsibility, 6.6 Agim Behrami and Bekir Behrami v France , App. No. 71412/01 and Ruzhdi Saramati v France, Germany, and Norway , App. No. 78166/01, European Court of Human Rights, 2 May 2007

2016 ◽  
Author(s):  
Villalpando Santiago
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Security Council ◽  
International Organizations ◽  
Security Council Resolution ◽  
European Court ◽  
The United Nations

In 2007, the European Court of Human Rights issued a landmark decision on the admissibility of two applications (Behrami and Saramati) concerning events that had taken place in Kosovo subsequent to Security Council Resolution 1244 (1999). This note examines the two main legal findings of this decision, namely (i) that the impugned actions and omissions were, in principle, attributable to the United Nations, and (ii) that this attribution implied that the respondent states could not be held accountable for such actions and omissions under the Convention. The note deconstructs the reasoning of the Court on these points and assesses the legacy of this precedent in the field of the responsibility of international organizations.

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