SOME OBSERVATIONS ON THE LEGAL RESPONSIBILITY OF STATES AND INTERNATIONAL ORGANIZATIONS IN THE EXTRATERRITORIAL PROCESSING OF ASYLUM CLAIMS

2016 ◽  
Vol 25 (1) ◽  
pp. 135-158
Author(s):  
Anna Liguori
Keyword(s):  
Human Rights ◽  
The United States ◽  
Legal Responsibility ◽  
European Convention ◽  
African Countries ◽  
Present Contribution ◽  
Member States ◽  
Eu Member States ◽  
European Court ◽  
The Pacific

The idea of establishing centres for the “external processing” of asylum claims – already supported by some European Union (EU) Member States, and actually realized in the Caribbean by the United States and in the Pacific area by Australia – has recently come to the fore again in European debates. The recent proposals – which tend to create offshore centres in Turkey and probably in African countries too – envisage various levels of involvement of EU Member States and of the EU itself. The present contribution aims to analyse, in particular, which of the various actors implicated would be responsible, and to what extent, in cases of violation of asylum seekers’ human rights. The scenario that could be envisaged is extremely complex. Disentangling the web of action/attribution/responsibility is very difficult and the risk of “blame shifting” or “passing the buck” among the various actors is high. The possibility of the extraterritorial application of the European Convention on Human Rights will also be explored, in order to assess to what extent individuals would have access to a remedy before the European Court of Human Rights.

KILLING TWO BIRDS WITH ONE STONE? THE COURT OF JUSTICE'S OPINION ON THE EU'S ACCESSION TO THE ECHR

2015 ◽  
Vol 74 (2) ◽  
pp. 185-188 ◽  
Author(s):  
Eva Nanopoulos
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
European Convention ◽  
Political Agenda ◽  
Eu Law ◽  
Member States ◽  
Eu Member States ◽  
European Court ◽  
The Eu

ACCESSION to the European Convention on Human Rights (ECHR) has long been on the EU's political agenda. The EU's membership of the ECHR is not only seen as symbolically significant, but is also aimed at filling an important gap in the enforceability of human rights across Europe. At present, the EU cannot be brought before the European Court of Human Rights (ECtHR) and, while all EU Member States are parties to the ECHR, as long as the EU protects fundamental rights to a standard equivalent to that required under the ECHR, Member States cannot be held responsible for alleged violations of the Convention resulting from EU law either (Bosphorus v Ireland (2006) 42 E.H.R.R. 1).

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.

“Unity in Diversity” Reloaded: The European Court of Human Rights’ Turn to Subsidiarity and its Consequences

2021 ◽  
Vol 15 (1) ◽  
pp. 93-123
Author(s):  
Mikael Rask Madsen
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Reform Process ◽  
Individual Member ◽  
Member States ◽  
European Court ◽  
Recent Developments ◽  
Unity In Diversity ◽  
The Common ◽  
Individual Justice

Abstract The European Convention of Human Rights system was originally created to sound the alarm if democracy was threatened in the member states. Yet, it eventually developed into a very different system with a focus on providing individual justice in an ever growing number of member states. This transformation has raised fundamental questions as to the level of difference and diversity allowed within the common European human rights space. Was the system to rest on minimum standards with room for domestic differences, or was it to create uniform standards? These questions have come up as increasingly contentious issues over the past years and have triggered a number of reforms seeking to introduce more subsidiarity in the system, striking a different balance between the European and national oversight of human rights. The article analyses this turn to subsidiarity by exploring whether the reform process has introduced new forms of difference and diversity within the common space of European human rights. Covering the period from 2000 to the end of 2019 and using a dataset of all judgments of the period, the article provides a structural analysis of developments in reference to the margin of appreciation which is the European Court of Human Rights’ long-standing tool for balancing the common standards, yet leaving space for individual member states to find local solutions to implementing those standards. It concludes that recent developments have contributed to a more federal-style construction of European human rights with more space for differences within the common general standards.

scholarly journals 4 The Court and Domestic and International Legal Systems

2020 ◽  
Author(s):  
Nussberger Angelika
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Vienna Convention ◽  
Legal Systems ◽  
Member States ◽  
Supreme Courts ◽  
European Court ◽  
Set Up ◽  
The One ◽  
The Relationship

This chapter assesses the relationship between the European Court of Human Rights (ECtHR) and domestic and international legal systems. With the ratification of the European Convention on Human Rights (ECHR), the Member States accept to be bound by final judgments of the Court and to implement them in their domestic legal systems. The Convention system does not make any difference as to the set-up of the national legal system or to the hierarchical position accorded to the Convention in national law. This is in line with a purist international law perspective, summarized in Article 27 of the Vienna Convention of the Law on Treaties: ‘A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.’ However, from the constitutional law perspective of the Member States, the situation is much more multi-faceted and complex. While it is generally accepted that the Court's judgments are binding and have to be implemented, the relationship between the Convention and the national constitutions as well as between their respective guardians, the Court on the one hand and national constitutional or supreme courts on the other hand, is not seen as one-way and hierarchical, but nuanced and differentiated. Implementation of judgments is accepted to be a duty, but not necessarily without exceptions. The chapter then considers the relationship between the ECtHR and the European Court of Justice (ECJ).

1 The Court Over Sixty Years

2020 ◽  
Author(s):  
Nussberger Angelika
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Peace Treaty ◽  
Member States ◽  
Human Rights Protection ◽  
Rights Protection ◽  
European Court ◽  
Definition Of ◽  
The Individual ◽  
Violent Conflicts

This introductory chapter provides a background of the European Convention on Human Rights (ECHR), a multilateral treaty based on humanism and rule of law. Similar to the—albeit non-binding—Universal Declaration of Human Rights (UDHR), the ECHR is a document that marks a change in philosophy and gives a new definition of the responsibility of the State towards the individual. It fixes basic values in times of change and paves the way towards reconciliation in Europe. Unlike in a peace treaty, not all wartime enemies participate in its elaboration, but, one by one, all the European States accede to it, signalling their consent to the values fixed by a small community of States in the early 1950s. Seven decades later, forty-seven European States have ratified the Convention. Admittedly, the new start based on common values could not prevent the outbreak of violent conflicts between Member States. At the same time, the resurgence of anti-democratic tendencies could not be successfully banned in all Member States, but such tendencies could be stigmatized as grave human rights violations in binding judgments of the European Court of Human Rights (ECtHR). Thus, it is not surprising that the European model of human rights protection has been attractive and inspirational for other parts of the world. Nevertheless, there was and is a debate in some Member States to withdraw from the Convention as the Court’s jurisprudence is seen to be too intrusive on national sovereignty.

Some decisions of the European Court of Human Rights and the Court of the European Union con cerning the right of asylum

10.12737/5251 ◽  
2014 ◽  
Vol 2 (1) ◽  
pp. 68-74
Author(s):  
Габриэлла Белова ◽  
Gabriela Belova ◽  
Мария Хаджипетрова-Лачова ◽  
Maria Hadzhipetrova-Lachova
Keyword(s):  
European Union ◽  
Human Rights ◽  
European Convention ◽  
The European Union ◽  
Protective Mechanisms ◽  
Eu Member States ◽  
European Court ◽  
Protection Of Human Rights ◽  
The Right ◽  
The Eu

The authors analyze certain cases considered in recent years by the European Court of Human Rights and the Court of European Union in Luxembourg and associated with providing of asylum to the third country nationals. In individual EU member states there are huge differences in the procedures and protective mechanisms for asylum seekers in their access to work, as well as in the use of mechanism of forced detention. Due to accession of the EU to the European Convention for the Protection of Human Rights and Fundamental Freedoms, the EU should comply the standards set by the Council of Europe. The authors analyze the new approach of the Strasbourg Court in decision MSS v. Belgium and Greece unlike other "Dublin" cases. They also consider certain new judgements of the Court of European Union in Luxembourg, some of which were accepted in order of urgent prejudicial production.

Do the Challenges of LGBTQ Asylum Applicants Under Dublin Register With the European Court of Human Rights?

2020 ◽  
pp. 096466392094636
Author(s):  
Raoul Wieland ◽  
Edward J Alessi
Keyword(s):  
Human Rights ◽  
Asylum Seekers ◽  
Human Rights Violations ◽  
Member States ◽  
Eu Member States ◽  
European Court ◽  
Dublin Regulation

Evidence suggests that Europe’s Dublin Regulation is increasing the precarity of lesbian, gay, bisexual, transgender, and queer (LGBTQ) asylum applicants. Dublin allocates responsibility for examining asylum claims between EU Member States. The European Court of Human Rights (ECtHR) guides the obligations of States under Dublin. Increasingly, the ECtHR draws on the concept of vulnerability to frame the experiences of asylum seekers. Vulnerability purportedly functions for the ECtHR as a lens through which the harm experienced by asylum applicants is magnified, enabling it to better recognize human rights violations. Nevertheless, the ECtHR’s vulnerability lens may be distorted by hetero- and cisgender normativity. We explore some implications of the ECtHR’s assumptions for how the vulnerabilities of LGBTQ asylum seekers in Europe under Dublin register with the ECtHR. We suggest that the combined frameworks of intersectional invisibility and layers of vulnerability can improve the ECtHR’s capacity to understand how LGBTQ asylum applicants may be particularly vulnerable under Dublin.

The Soering Case

1991 ◽  
Vol 85 (1) ◽  
pp. 128-149 ◽  
Author(s):  
Richard B. Lillich
Keyword(s):  
United States ◽  
Human Rights ◽  
The United States ◽  
International Criminal Law ◽  
European Convention ◽  
International Human Rights Law ◽  
Council Of Europe ◽  
European Court ◽  
Capital Murder ◽  
To Come

The unanimous judgment of the European Court of Human Rights in the Soering case, handed down on July 7, 1989, holds that Great Britain’s extradition of the applicant to the United States to stand trial for capital murder, an offense punishable under the applicable Virginia law by “death, or imprisonment for life,” would violate the prohibition against “inhuman or degrading treatment or punishment” in the European Convention on Human Rights. Aside from its effect on the future ability of the United States (and many other countries) to obtain the extradition from Council of Europe countries of persons charged with offenses carrying the death penalty, the judgment in Soering has implications of a far wider nature for international criminal law, the law of state responsibility, the jurisprudence of the European Convention, and international human rights law in general. Some of these implications are obvious and immediate; others are more speculative and long range. Like the proverbial pebble thrown in the pond, Soering will cause ripples for some time to come.

scholarly journals Pilot Judgments Delivered by the European Court of Human Rights against Romania

2020 ◽  
Vol 6 (2) ◽  
pp. 38-46
Author(s):  
Crina Mihaela Verga ◽  
◽  
◽  
◽  
◽  
...  
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Council Of Europe ◽  
Member States ◽  
European Court ◽  
The Subject

The article defines first the concept of pilot decision. Then it details the procedure employed in case of systemic or systematic violations of any right provided by the European Convention on Human Rights. Some relevant pilot judgments against certain member states of the Council of Europe are highlighted. Next, two pilot judgments delivered against Romania (Maria Atanasiu and Others v. Romania and Rezmives and Others v. Romania) are thoroughly examined. Finally, some relevant opinions on the subject are expressed. The issue is very topical for the Romanian state and the specialists in the field, precisely because of the consequences determined by the two analyzed pilot judgments.

The UN Security Council, State Responsibility, and the European Court of Human Rights

2018 ◽  
Author(s):  
Linos-Alexandre Sicilianos
Keyword(s):  
Human Rights ◽  
Security Council ◽  
Economic Sanctions ◽  
Case Law ◽  
European Convention ◽  
Eu Member States ◽  
Peacekeeping Operations ◽  
Un Peacekeeping ◽  
European Court ◽  
The Eu

The European Court of Human Rights is in the process of refining its conceptual tools for determining the responsibility of the States Parties to the European Convention on Human Rights (ECHR) acting in execution of a Security Council resolution. Where the implementation of resolutions involving the use of force is concerned, the Court’s recent case law has shown a shift towards systematic acceptance of the extraterritorial scope of the ECHR. As to whether the conduct in issue should be attributed to the States Parties or to the UN, the Court now makes a clear distinction between operations authorized by the Security Council and UN peacekeeping operations. The implementation of UN economic sanctions will be addressed differently according to whether or not the respondent State is a member of the EU. The criterion of ‘equivalent protection’ is only applicable in the former scenario. And in any event, it needs to be applied cautiously on a case-by-case basis. As regards the enforcement of economic sanctions by non-EU Member States, the Court tends to interpret Security Council resolutions in a manner consistent with the obligations deriving from the ECHR. More generally, the Court’s approach is oriented towards systemic harmonization rather than towards normative conflict.

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