The Right of Self-Determination and Protection of Minorities in Central and Eastern Europe in light of the case-law of the Human Rights Committee

1993 ◽  
Vol 1 (1) ◽  
pp. 7-16 ◽  
Author(s):  
Manfred Nowak
Keyword(s):  
Human Rights ◽  
Eastern Europe ◽  
Central And Eastern Europe ◽  
Case Law ◽  
Self Determination ◽  
Political Rights ◽  
Council Of Europe ◽  
International Treaty ◽  
The Right ◽  
Right Of Self Determination

AbstractThe right of self-determination and protection of minorities in Central and Eastern Europe is discussed in the light of the case law of the Human Rights Committee, which shows that many traditional minorities in Central and Eastern Europe are to be qualified as minorities within the meaning of article 27 of the UN Covenant. The author concludes that the UN Covenant on Civil and Political Rights still remains the only international treaty guaranteeing protection to minorities and providing measures of international supervision. He argues for a common and internationally binding European agreement providing adequate protection against minority rights violations, be it in the framework of the CSCE, Council of Europe or an enlarged European Communities.

The Right to Enter One’s Own Country: The Conflict between the Jurisprudence of the Human Rights Committee and the Travaux Préparatoires of Article 12(4) of the iccpr

2021 ◽  
Vol 10 (1) ◽  
pp. 75-123
Author(s):  
Jamil Ddamulira Mujuzi
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Political Rights ◽  
Civil And Political Rights ◽  
The Right

Abstract Article 12(4) of the International Covenant on Civil and Political Rights (iccpr) provides that ‘[n]o one shall be arbitrarily deprived of the right to enter his own country.’ The jurisprudence of the Human Rights Committee shows that Committee members have often disagreed on the question of whether the right under Article 12(4) is reserved for citizens only or it can be claimed by non-citizens who consider the countries in which they were born or they have lived for longer periods as their own. In its earlier case law, the Committee held that Article 12(4) is applicable to nationals only. Since 1999, when General Comment No.27 was adopted, the Committee has moved towards extending the right under Article 12(4) to non-nationals. Its latest case law appears to have supported the Committee’s position that Article 12(4) is applicable to non-nationals. Central to both majority and minority decisions in which the Committee has dealt with Article 12(4), is whether the travaux préparatoires of Article 12(4) support either view. This article relies on the travaux préparatoires of Article 12(4) to argue that it does not support the view that Article 12(4) is applicable to non-nationals.

Expanding Competences by Judicial Lawmaking: The Pilot Judgment Procedure of the European Court of Human Rights

2011 ◽  
Vol 12 (5) ◽  
pp. 1231-1260 ◽  
Author(s):  
Markus Fyrnys
Keyword(s):  
Human Rights ◽  
Eastern Europe ◽  
Central And Eastern Europe ◽  
Institutional Design ◽  
European Convention ◽  
Current Debate ◽  
Council Of Europe ◽  
European Court ◽  
Judicial Lawmaking

The institutional design of the Strasbourg system that has evolved over the last decades is an expression of contemporary debates surrounding the system's very nature and purpose. The current debate primarily bears on the range of choices that the Council of Europe faces in adapting to the changes in Europe, which largely have been caused by its expansion to cover nearly all post-Communist States of Central and Eastern Europe since the 1990s. This expansion, and with it the extension of the scope of the European Convention on Human Rights (the Convention) to now more than 800 million people in forty seven countries, has confronted the European Court of Human Rights (the Court) with a far broader range of human rights problems than had previously existed. By 2010, the number of pending cases had risen to 139,650 but the Court's adjudicative capacity remains limited.

scholarly journals The Right of Self-Determination: Its Emergence, Development, and Controversy

2016 ◽  
Vol 12 (1) ◽  
pp. 1
Author(s):  
Munafrizal Manan
Keyword(s):  
Human Rights ◽  
International Law ◽  
Self Determination ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Human Right ◽  
International Human Rights ◽  
International Human ◽  
The Right ◽  
Right Of Self Determination

This paper discusses the right of self-determinationfrom  international  law  and international human rights law perspective. It traces the emergence and development of self-determination from political principle to human right. It also explores the controversy of the right of self-determination. There have been different and even contradictory interpretations of the right of self-determination. Besides, there is no consensus on the mechanism to apply the right of self-determination. Both international law and international human rights law are vague about this.

Allowing the Right Margin: The European Court of Human Rights and The National Margin of Appreciation Doctrine: Waiver or Subsidiarity of European Review?

2012 ◽  
Vol 14 ◽  
pp. 381-418 ◽  
Author(s):  
Dean Spielmann
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Council Of Europe ◽  
European Court ◽  
Margin Of Appreciation ◽  
Essential Question ◽  
Domestic Courts ◽  
The Right ◽  
Domestic Law

AbstractThe doctrine of the national margin of appreciation is well established in the case law of the European Court of Human Rights. In applying this essentially judge-made doctrine, the Court imposes self-restraint on its power of review, accepting that domestic authorities are best placed to settle a dispute. The areas in which the doctrine has most often been applied will be presented here, looking at various examples from case law. After a brief overview of the doctrine’s origin, the analysis will focus on the situations in which the margin has been allowed or denied. Does it relate merely to factual and domestic-law aspects of a case? What is the scope of the margin of appreciation when it comes to interpreting provisions of the European Convention on Human Rights? What impact does an interference (whether disproportionate or not) with a guaranteed right have on the margin allowed? Is there a second-degree or ‘reverse’ margin of appreciation, whereby discretionary powers can be distributed between executive and judicial authorities at domestic level? Lastly it is noteworthy that Protocol No 14, now ratified by all Council of Europe Member States, enshrines in Article 12—at least to some extent—an obligation to apply a margin of appreciation. One essential question remains: by allowing any margin of a certain width, is the European Court simply waiving its power of review or is it attributing responsibility to the domestic courts in the interest of a healthy subsidiarity?

scholarly journals The 2013 Elections in Zimbabwe: End of an Era for Human Rights Discourse?

2013 ◽  
Vol 48 (3) ◽  
pp. 99-110 ◽  
Author(s):  
Cornelias Ncube
Keyword(s):  
Human Rights ◽  
The State ◽  
Self Determination ◽  
Coalition Government ◽  
Political Rights ◽  
Strained State ◽  
Civil And Political Rights ◽  
Rights Discourse ◽  
The Right ◽  
Human Rights Discourse

This paper examines the implications of Zimbabwe's 2013 harmonised elections on the opposition's continued deployment of the rights-based discourse to make moral and political claims against and demands of the state. Since 2000, two polarising strands of the human rights discourse −1) the right to self-determination and 2) civil and political rights – were deployed by the state and the opposition, respectively, in order to challenge extant relations and structures of power. The acutely strained state–society relations in post-2000 Zimbabwe emanated from human rights violations by the state as it responded to challenges to its political power and legitimacy. However, the relative improvement in the human rights situation in the country since the 2009 coalition government came into office, and during and since the recently concluded peaceful 2013 elections – the flawed electoral process itself notwithstanding – suggests a need for alternative new ways to make moral and political demands of the state in the future.

Right to Free Elections: Emerging Guarantees or Two Layers of Protection?

2009 ◽  
Vol 27 (3) ◽  
pp. 361-390 ◽  
Author(s):  
Sergey Golubok
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Soft Law ◽  
The Political ◽  
Council Of Europe ◽  
Venice Commission ◽  
The Right ◽  
Further Development

The article analyses the drafting history and background of the ‘political clause’ of the European Convention on Human Rights – Article 3 of Protocol No. 1 which provides for the right to free elections. It discusses main concepts developed by the Strasbourg Court's jurisprudence concerning that clause. Special attention is devoted to the new trends in the case-law, including gradual emergence of procedural obligations under Article 3, its interplay with other substantive provisions of the Convention, the influence of the ‘soft-law’ instruments emanating from other organs of the Council of Europe, primarily texts of the Venice Commission. In conclusion, two options regarding further development of the Court's case-law on the right to free elections are proposed: the avenue of newly emerging guarantees and the avenue of two (narrower and wider) layers of protection.

Property Restitution in Eastern Europe: Domestic and International Human Rights Law Responses

2004 ◽  
Vol 29 (3) ◽  
pp. 325-363 ◽  
Author(s):  
Mariana Karadjova
Keyword(s):  
Human Rights ◽  
Eastern Europe ◽  
Minority Groups ◽  
International Human Rights Law ◽  
Political Rights ◽  
European Court ◽  
The Future ◽  
Civil And Political Rights ◽  
The Right ◽  
Past Injustices

AbstractThis article presents an overview of how those East European countries that are members of the Council of Europe have approached the problems of restitution as a means of reparation for past injustices. In doing so, attention will be paid to: the entitled persons and the extent of restitution; the underlying motivations vis-à-vis the form of reparation (restitution in kind or compensation), and attitudes towards minority groups and foreigners as part of the restitution process. Emphasis will also be given to the role played by international instruments (the ECHR and its future Protocol 12, the International Covenant on Civil and Political Rights, various UN resolutions, etc), as well as by judicial institutions (the European Court of Human Rights, the UN Human Rights Committee) in the evolution of the restitution process in Eastern Europe in general, and regarding such issues as equality between foreigners and nationals as well as minority and religious groups and the elaboration of an international standard of restitution as reparation for abuses of human rights in particular. The bodies of the ECHR have managed to avoid problems related to restitution and reparations for past injustices by arguing that the right of restitution is not guaranteed by art.1 of Protocol 1 to the the ECHR. But the entry into force of a new Protocol 12 to the Convention will likely result in changes being made in this thought process, at least as regards the position of foreigners. If measures denying restitution, owing to the claimant's nationality, were taken after ratifi cation of Protocol 12, the way should be opened in the future to foreigners (in addition to procedures before the UN Human Rights Committee) to more effectively defend their rights relative to such restorative measures: notably, the possibility of seizing the Strasbourg Court with claims relating to justifi cation for "unequal treatment". The right to remedy the injustices committed to the victims of violations of human rights and international humanitarian law has appeared with increasing frequency on the agenda of the UN Commission on Human Rights. Furthermore, in its recent case law, the UN Human Rights Committee has evidenced a concern over several questions relating to the respect of possessions; it has already opted for the proposition that any discrimination on the basis of nationality in restitution legislation can be deemed to be a violation of the International Covenant on Civil and Political Rights. Lastly, after ratifi cation of Protocol 12, we can expect a link to be forged between the vision of the UN Commission on Human Rights and that of the European Court of Human Rights that may—in the future—lead to the elaboration of a common international mechanism regulating restitution as a means for the reparation of abuses of human rights.

scholarly journals Disentangling the conundrum of self-determination and its implications in Greenland

Polar Record ◽  
2020 ◽  
Vol 56 ◽  
Author(s):  
Dorothée Céline Cambou
Keyword(s):  
Human Rights ◽  
International Law ◽  
Minority Groups ◽  
Self Determination ◽  
Human Right ◽  
Significant Control ◽  
The People ◽  
The Right ◽  
Right Of Self Determination

Abstract In 2009, the Act on Greenland Self-Government was adopted. It recognises that “the people of Greenland is a people pursuant to international law with the right of self-determination”. Within this framework, the people of Greenland have gained significant control over their own affairs and the right to access to independence. Yet, the extent to which this framework ensures the right of self-determination in accordance with fundamental human rights can still be questioned. From a human rights perspective, the right of self-determination is not a one-time right. It is fundamental human right that applies in different contexts beyond decolonisation and which has implications not only for colonial countries and peoples but also for the population of all territories, including indigenous and minority groups. From this perspective, this contribution seeks to disentangle and analyse the different facets of self-determination in Greenland while considering the implications of the right based on the multifarious identity of the peoples living in the country as colonial people, citizens, indigenous and minority groups, including their claim to control mining resources.

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