scholarly journals Uprootedness and the protection of migrants in the International Law of Human Rights

2008 ◽  
Vol 51 (1) ◽  
pp. 137-168
Author(s):  
Antônio Augusto Cançado Trindade
Keyword(s):  
Human Rights ◽  
International Law ◽  
Regional Level ◽  
Global Level ◽  
European Court ◽  
International Court ◽  
The Subject ◽  
Turn Over

The article attempt to demonstrate the evolution of international law in connected to the subject of the forced immigrants'. The author supported by several texts, cases and resolutions of the regional level, through interamerican court and European court, and the global level, through the international court. It's shown the evolution that occurred in international law in millennium turn over, which recognize the immigrants' rights. However, it's stressed the necessity of the development of those laws connected to the theme e the recognition, from the States; the importance of law's that effort to ensure the respect to human rights relative to the immigrants and their families.

scholarly journals The Future of International Law: A Human Rights Perspective – With Some Comments on the Leiden School of International Law

2007 ◽  
Vol 20 (4) ◽  
pp. 729-739 ◽  
Author(s):  
JOHN DUGARD
Keyword(s):  
Human Rights ◽  
International Law ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Occupied Palestinian Territory ◽  
Peaceful Settlement ◽  
International Court ◽  
The Subject ◽  
Jus Cogens ◽  
Palestinian Territory

In the past fifty years there have been changes in relation to the nature and sources of international law. Academic lawyers have welcomed these changes, which show a movement away from strict consent as the basis of international law. States and government law advisers have adopted a more conservative approach and emphasize the importance of consent as a basis for international law. Different approaches are apparent in the practice of the Human Rights Council. The Council has focused on the Occupied Palestinian Territory, much to the annoyance of Western states. The developing world sees the Occupied Palestinian Territory in much the same way as the United Nations saw apartheid in South Africa. The International Court of Justice has responded wisely to both these phenomena. It has given cautious approval to new notions of international law, encapsulated in the doctrines of obligations erga omnes and jus cogens. On the subject of Palestine the Court has given an Advisory Opinion which should form the basis for a peaceful settlement of the conflict in the Middle East. Unfortunately the international community has failed to give effect to this opinion.

The End of the Road for the Prince? Sixty Years after the Czechoslovak Confiscation of Liechtenstein Property

2006 ◽  
Vol 19 (2) ◽  
pp. 441-458
Author(s):  
BART DELMARTINO
Keyword(s):  
Human Rights ◽  
International Law ◽  
The Other ◽  
Nazi Germany ◽  
International Court Of Justice ◽  
The Road ◽  
Court Of Justice ◽  
European Court ◽  
International Court ◽  
International Obligations

In 1945 Czechoslovakia confiscated Liechtenstein property as reparation for the damage done by Nazi Germany. Private claims failed before the courts of Czechoslovakia, and international law did not provide Liechtenstein with a means of action against Czechoslovakia. When the property was on loan in Germany, a private case for recovery was declared inadmissible by the German courts, in line with Germany's international obligations. The European Court of Human Rights accepted these decisions. Liechtenstein, on the other hand, considered them to violate its sovereignty. In 2005, the International Court of Justice decided that it lacked temporal jurisdiction to rule on the issue.

scholarly journals Exhaustion of domestic remedies as a condition of lodging a complaint before the European Court of Human Rights

2017 ◽  
Vol 1 (3) ◽  
pp. 168-173
Author(s):  
Tamara Gerasimenko
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Scientific Methods ◽  
European Court ◽  
International Court ◽  
Scope Of Application ◽  
The Subject ◽  
Effective Remedy ◽  
The Right

The subject. The article is devoted to the subject of the exhaustion of domestic remediesbefore filing a complaint to the European Court of Human Rights.The purpose. The purpose of this article is to show and reveal the characteristics of suchimportant condition of lodging a complaint before the European Court of Human Rights asthe exhaustion of domestic remedies.The methodology. The following scientific methods have been used to write this article:analysis, comparing and making conclusions.Results, scope of application. The right of individual petition is rightly considered to be thehallmark and the greatest achievement of the European Convention on Human Rights. Individualswho consider that their human rights have been violated have the possibility oflodging a complaint before the European Court of Human Rights. However, there are importantadmissibility requirements set out in the Convention that must be satisfied beforea case be examined. Applicants are expected to have exhausted their domestic remediesand have brought their complaints within a period of six months from the date of the finaldomestic decision. The obligation to exhaust domestic remedies forms part of customaryinternational law, recognized as such in the case – law of the International Court of Justice.The rationale for the exhaustion rule is to give the national authorities, primarily the courts,the opportunity to prevent or put right the alleged violation of the Convention. The domesticlegal order should provide an effective remedy for violations of Convention rights.Conclusions. The rule of exhaustion of domestic remedies is an important part of the functioningof the protection system under the Convention and its basic principle. 

scholarly journals The European Court of Human Rights and Its Contribution to Judicial Fragmentation in International Human Rights Law

2019 ◽  
Vol 113 ◽  
pp. 92-95
Author(s):  
Elena Abrusci
Keyword(s):  
Human Rights ◽  
International Law ◽  
Regional Level ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
European Court ◽  
Commission Report ◽  
International Human ◽  
International Law Commission

Following the International Law Commission Report on Fragmentation in International Law (IL), scholars have started to question whether such fragmentation could also have affected its subbranches, and, especially, international human rights law (IHRL). Due to the proliferation of both IHRL norms and institutions, especially at the regional level, this appeared to be a real possibility.

Territorial Jurisdiction and Positive Obligations of an Occupied State

2018 ◽  
Author(s):  
Ganna Yudkivska
Keyword(s):  
Human Rights ◽  
International Law ◽  
Effective Control ◽  
Territorial Jurisdiction ◽  
European Court ◽  
International Court ◽  
Occupied State ◽  
New Development ◽  
Occupied Territories ◽  
High Degree

The international law of occupation—as it has developed since the nineteenth century—traditionally regulates the conduct and obligations of occupying forces. Very little is said about the obligations of an occupied State, or a ‘victim’ State. This chapter focuses on a limited practice of the European Court of Human Rights in developing some principles in this respect. The main emphasis is put on the landmark judgment Ilascu v Moldova and Russia, in which, for the first time, the Court has found that a State, which lost effective control over a part of its territory and was unable to exercise its jurisdiction there, still had some positive obligations deriving from its de jure jurisdiction. It is argued that the Court’s approach represented a new development in international law, which traditionally considered human rights obligations to be primarily triggered by an effective territorial control. It is further discussed that it might be quite difficult to reconcile positive obligations towards people remaining in occupied territories with a State’s obligation to refrain from supporting separatist regimes. Substitution of effective control for the concept of ‘positive obligations’ necessitates a very delicate assessment of different political, diplomatic, judicial, and other measures, which requires a high degree of sensitivity on the part of the international court. The scope of the positive obligations of an injured State vis-à-vis the positive obligations of an occupying State needs to be elucidated further.

scholarly journals Human dignity: an illusory limit for the evolutive interpretation of the ECHR?

Amicus Curiae ◽  
2019 ◽  
pp. 20-28
Author(s):  
Pavel Bureš
Keyword(s):  
Human Rights ◽  
International Law ◽  
Human Dignity ◽  
Case Law ◽  
Senior Lecturer ◽  
Public International Law ◽  
European Court ◽  
The Subject ◽  
The Relationship

In this article Pavel Bureš (Senior Lecturer in Public International Law in the Faculty of Law at Palacky University, Czech Republic) aims to portray some basic elements of the relationship between the concepy of human dignity and the evolutive interpretation, setting out key elements, notions and considerations for further thoughts. The article presents some basic issues related to the subject matter, then focuses on the evolutive interpretation, and finally outlines the role of human dignity in the case law related to the evolutive interpretation. Index keywords: Human rights, human dignity, European Court of Human Rights

Apology of Freedom: Book review: Nussberger A. The European Court of Human Rights. Oxford: Oxford University Press, 2020

2021 ◽  
Vol 11 (1) ◽  
pp. 153-163
Author(s):  
Maria Filatova
Keyword(s):  
Human Rights ◽  
International Law ◽  
Vice President ◽  
Academic Community ◽  
Human Rights Protection ◽  
Oxford University ◽  
European Court ◽  
The Subject ◽  
Distinguished Scholar ◽  
Oxford University Press

The subject of this review is the book written by a famous German legal scholar, Angelika Nussberger, whose name is well known to the Russian legal academic community. Professor Nussberger was a judge in respect of Germany at the European Court of Human Rights from 2011 to 2019, and Vice-President of the Court in 2017–2019. The book, published in Oxford University Press, is a part of their series “Elements of International Law”, which explains its structure and comprehensive approach to the subject. The book embraces all important relevant topics of the Court’s activities, from its conception and the beginning of its activities as an optional jurisdiction up to its transformation to the most authoritative international court in the area of human rights protection. Special attention is paid to the Court’s role in the creation of human rights culture in Europe and worldwide. Other topics covered by the book include its organization and procedure before the Court; the evolution of the Court’s methodology; interaction with other «actors» on human rights law field (national and other international courts); enforcement of the Court’s judgments and its efficiency; the Court’s future: main challenges and perspectives. The book offers a very focused and concentrated narrative combined with a deep analysis and very personal sight of a judge at the Court and of a distinguished scholar. It may serve as a very useful source of information about the Court’s judicial doctrines, vividly discussed by the ECtHR observers. The author gives her own view on these doctrines and reveals many problematic aspects of their application by the Court. The book is abundant in illustrations how the doctrines in question have evolved. The special character of the book is that it combines the overview of the Court’s procedure (composition of the bench, the Registry’s tasks, interaction with the Committee of Ministers related to the execution of judgments) with the analysis of the Court’s role in the modern international law development. It distinguishes the book from other works on the Convention and the European Court of Human Rights. The extensive list of references on the Court and the Convention system makes the book a perfect guide on the matter for specialists and students. It may be concluded that the book will enter the «golden fund» of international law doctrine, and its translation into Russian would be very useful for the Russian legal audience.

The ECHR and Responsibility of the State: Moving Towards Judicial Integration

2018 ◽  
Author(s):  
Iulia Motoc ◽  
Johann Justus Vasel
Keyword(s):  
Human Rights ◽  
International Law ◽  
The State ◽  
European Convention ◽  
Effective Control ◽  
European Court ◽  
International Court ◽  
The Icj ◽  
First Time

This chapter discusses the recent jurisprudence of the European Court of Human Rights (ECtHR), reaching the conclusion that the Court’s approach evolves towards judicial integration. After analysing the notion of lex specialis with regards to the question of responsibility and jurisdiction, as (implicitly) proposed by the ECtHR in the Catan judgement, the chapter considers the question of the attribution of conduct introduced for the first time in the Jaloud judgment. The chapter draws a parallel between the notion of effective control used in the International Court of Justice’s (ICJ’s) Nicaragua case and the Chiragov case. It argues that the Courts ruling in Chiragov is closer to the criteria of effective control imposed by the ICJ. The analysis will display that, in both recent decisions, the Court is moving towards judicial integration in the sense of a reasoned difference between the responsibility of human rights and general international law. It is evident that the European Convention of Human Rights is no self-contained regime.

Wyrok ETPC jako precedens wiążący quasi de iure a efektywność porządku Europejskiej Konwencji Praw Człowieka (perspektywa teoretycznoprawna)

2017 ◽  
pp. 7-29
Author(s):  
Bartosz Liżewski
Keyword(s):  
Human Rights ◽  
International Law ◽  
Case Law ◽  
European Convention ◽  
International Court Of Justice ◽  
Stare Decisis ◽  
European Court ◽  
International Court ◽  
Protection Of Human Rights ◽  
The One

In the system of the European Convention on Human Rights (ECHR or the Convention), the basic formula for creating standards for the protection of human rights is to define their understanding of and possible modifications or changes as a result of a law-making interpretation of the provisions of the Convention. The substantive rules of the Convention since its inception, not only have not changed (they were amended or derogated), but in addition are very general. This causes, that the way their understanding sets the European Court of Human Rights (ECHR or tribunal) forming in a legislative standards for the protection of human rights. That raises the interesting question of theoretical, since in public international law on the one hand the judgment of an international court is recognized as an auxiliary source of international law (art. 38 sec. 1 point d Statute of the International Court of Justice), while not applicable rule of stare decisis, meaning legally bound judgment precedent of other courts in similar cases. If, however, a violation of well-established case law of the ECHR by the national authorities is the reason for the judgment of the committee of three judges without a hearing (art. 28 paragraph. 1 point b ECHR). Judgments of the Court (the monopoly of interpretation of the ECHR) must be respected and enforced in order of national law (Art. 46 paragraph. 1 and 2 of the ECHR). This raises the natural question of the scope of their precedensowości for the tribunal and law enforcement organs in the national legal system. It is with this problem both theoretical and practical. The obvious fact is that the decision of the ECHR does not create a precedent in the sense of how suitable term in common law. However, its decisions affect application of the law on domestic, not only in reality, but partly also legal, so that it can be concluded that the judgment has the power of the normative and, to some extent binding. But what is the scope of the precedent character of this sentence? The answer to this question is the subject of considerations to be taken in the paper.

Comparative Views on the Right to Vote in International Law

2018 ◽  
Author(s):  
Shai Dothan
Keyword(s):  
Human Rights ◽  
International Law ◽  
National Courts ◽  
European Court ◽  
Right To Vote ◽  
The Right ◽  
Democratic Elections ◽  
The Way

There is a consensus about the existence of an international right to vote in democratic elections. Yet states disagree about the limits of this right when it comes to the case of prisoners’ disenfranchisement. Some states allow all prisoners to vote, some disenfranchise all prisoners, and others allow only some prisoners to vote. This chapter argues that national courts view the international right to vote in three fundamentally different ways: some view it as an inalienable right that cannot be taken away, some view it merely as a privilege that doesn’t belong to the citizens, and others view it as a revocable right that can be taken away under certain conditions. The differences in the way states conceive the right to vote imply that attempts by the European Court of Human Rights to follow the policies of the majority of European states by using the Emerging Consensus doctrine are problematic.

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