Decisions of International Courts: Following Precedents or Consistent Jurisprudence?

2020 ◽  
Vol 10 (4) ◽  
pp. 3-21
Author(s):  
Sergei Manzhosov ◽  
Sergey Belov
Keyword(s):  
Human Rights ◽  
International Law ◽  
Separation Of Powers ◽  
Legal Regulation ◽  
Criminal Court ◽  
Stare Decisis ◽  
International Courts ◽  
Judicial Decisions ◽  
Binding Force ◽  
European Court

The contemporary international law doctrine is critical to the notion of binding force of general positions of international courts. The grounds for this critics is more weighty in international law than in domestic law. If in the latter general binding force of judicial decisions erga omnes questions the separation of powers, in the former the states as the main actors of the international relations try to participate and control any norm-making. At the same time international courts realize the necessity of consistency of interpretation and applying of legal norms and principles, as unpredictable decisions breach the certainty of law. These courts demonstrate surprising uniformity of approaches to this issue, disregarding their status, legal grounds for their jurisdiction, the nature of the cases they consider. The courts recognize their duty to follow the sustainable interpretation of international law, as it appears in the own practice of these courts and other international authorities, because this is crucial for the definiteness of legal regulation, predictability of judicial decisions and consistency of legal solutions. The international courts reject following precedents according to the stare decisis rule and are very caution to declare following the concept of jurisprudence constant, trying to be equidistant to particular legal traditions. The legal acts regulating the international justice favour this caution, as they establish the binding force of judicial decisions only inter partes and within concrete case. In a case of need to deviate from the established practice both the International Court of Justice, International Criminal Court, European Court of Human Rights and international investment arbitration tribunals tend to (1) appeal to formal arguments of non-binding force of previous decisions, or (2) argue the differences of considering case with preceding cases, or (3) base on notions developed in their practice – e.g., the idea of “European consensus” in the practice of the European Court of Human Rights.

Fragmentation of International Law Revisited: Insights, Good Practices, and Lessons to be Learned from the Case Law of the European Court of Human Rights

2015 ◽  
Vol 28 (4) ◽  
pp. 863-885 ◽  
Author(s):  
ADAMANTIA RACHOVITSA
Keyword(s):  
Human Rights ◽  
International Law ◽  
Case Law ◽  
European Convention ◽  
Vienna Convention ◽  
International Courts ◽  
Good Practices ◽  
European Court ◽  
Interpretation Process ◽  
Fragmentation Of International Law

AbstractThis article discusses the contribution of the European Court of Human Rights to mitigating difficulties arising from the fragmentation of international law. It argues that the Court's case law provides insights and good practices to be followed. First, the article furnishes evidence that the Court has developed an autonomous and distinct interpretative principle to construe the European Convention on Human Rights by taking other norms of international law into account. Second, it offers a blueprint of the methodology that the Court employs when engaging with external norms in the interpretation process. It analyses the Court's approach to subtle contextual differences between similar or identical international norms and its position towards the requirements of Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT). It concludes that international courts are developing innovative interpretative practices, which may not be strictly based on the letter of the VCLT.

scholarly journals The problem of applying reservations to international human rights agreements

2021 ◽  
pp. 68-73
Author(s):  
Ivanna Maryniv ◽  
Liubov Rudai
Keyword(s):  
Human Rights ◽  
International Law ◽  
Legal Regulation ◽  
European Convention ◽  
Effective Control ◽  
International Treaties ◽  
International Human Rights ◽  
European Court ◽  
Human Rights Treaties ◽  
International Human

A problem statement. Human rights law, as a branch of public international law, to date, is mainly codified and consists mainly of treaty rules contained in universal and regional conventions. At the same time, in most cases, the parties to these agreements make reservations of both a substantive and procedural nature that apply to all generations of human rights. The question arises as to the legitimacy of the reservations declared by states to international acts on human rights and freedoms. Аnalysis of research and publications. Many international lawyers deal with the issue of reservations to human rights treaties and their validity. Thus, the works of E.S. Alisievich, are devoted to this issue, I.I. Lukashuk, V.G. Butkevich, V.L. Tolstoy, M.V. Buromensky and others. However, there are a number of problems with the legal regime of reservations to human rights treaties. The main thesis that reveals their essence is that there is no mechanism for effective control over the legitimacy of such reservations. The main text. The article considers the concept of reservations to international treaties, examines the problem of issuing reservations to international human rights treaties. The application of the institution of reservations is studied on the example of certain international treaties in the field of human rights, such as: the European Convention on Human Rights, the Convention on the Elimination of All Forms of Discrimination against Women, the African Charter on Human and Peoples’ Rights. The case law of the European Court of Human Rights on the application of reservations to the European Convention on Human Rights is studied. Conclusions. Today, the sovereign right of every state to stipulate international treaties is firmly established in international law, but there is no clear legal regulation of this institution that would prevent abuses by states in this area. We see the need to further study the institution of reservations to human rights treaties, its development and the development of general principles, procedures, and control over their legitimacy.

scholarly journals Religious Symbols and State Regulation

2017 ◽  
Vol 12 (2-3) ◽  
pp. 128-141
Author(s):  
Dominic McGoldrick
Keyword(s):  
Human Rights ◽  
Legal Regulation ◽  
State Regulation ◽  
Reasonable Accommodation ◽  
International Courts ◽  
Religious Symbols ◽  
European Court

Abstract Religious symbols are historically significant and socially powerful. They have many forms and functions. Their legal regulation presents difficult challenges for courts, particularly international courts. This article examines how the European Court of Human Rights has approached the regulation of the regulation of religious symbols by national jurisdictions. It submits that the fundamental touchstone of the Court’s jurisprudence lies in its approach to secularism. It has accepted secularism as consistent with the values underpinning the Convention. This is a strategic and sensible approach. There are limits imposed by the prohibitions on discrimination and indoctrination. Beyond secularism there have been tentative steps towards a balancing / reasonable accommodation approach but the Court appreciates that the balances are difficult ones on which reasonable people, and even reasonable states, may legitimately disagree.

The European Convention on Human Rights and General International Law

2018 ◽  
Keyword(s):  
Human Rights ◽  
International Law ◽  
Feedback Loop ◽  
European Convention ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Courts ◽  
National Courts ◽  
European Court ◽  
Protection Of Human Rights

The European Court of Human Rights is one of the main players in interpreting international human rights law where issues of general international law arise. While developing its own jurisprudence for the protection of human rights in the European context, it remains embedded in the developments of general international law. But the Court does not always follow general international law closely and develops its own doctrines. Its decisions are influential for national courts as well as other international courts and tribunals, thereby, at times, influencing general international law. There is thus a feedback loop of influence. This book explores the interaction, including the problems arising in the context of human rights, between the European Convention on Human Rights and general international law. It contributes to the ongoing debate on fragmentation and convergence of International Law from the perspective of international judges as well as academics. Some of the chapters suggest reconciling methods and convergence while others stress the danger of fragmentation. The focus is on specific topics which have posed special problems, namely sources, interpretation, jurisdiction, state responsibility, and immunity.

scholarly journals On The Role of Modern Doctrines on Human Rights (International Legal Examination)

2019 ◽  
Vol 9 (1) ◽  
pp. 5155-5158
Keyword(s):  
Human Rights ◽  
Legal Regulation ◽  
Criminal Court ◽  
Legal Analysis ◽  
The European Union ◽  
European Court ◽  
The Subject ◽  
Rational Consideration ◽  
Human Rights Standards

The modern doctrines on human rights, which are proposed to be considered in the context of their implementation in international legal practice, are the subject of theoretical and legal analysis in the paper. It is noted that human rights have come a long way in their formation, design and subsequent genesis, and they have finally formed by the end of the last century, and it seems that now all the necessary conditions have been created for their philosophical, legal, axiological analysis and relevant rational consideration of human rights. The advantages of international law in the field of human rights are listed; namely, it is noted that international human rights standards are universal in nature and are binding based on which states are obliged to ensure a minimum standard of those rights and freedoms that are enshrined in international acts, There are listed in the paper advantages of international legal regulation regarding human rights and freedoms, such as the supranational, mandatory and imperative nature of international acts; guarantees of protection and the possibility of restoring violated rights and freedoms of citizens; a man-centred approach in resolving disputes and conflicts arising in international practice. The role of international bodies such as the International Criminal Court, the International Tribunal for the Law of the Sea, the Court of the European Union, the European Court of Human Rights, the International Tribunals for Rwanda and the Former Yugoslavia, and the Special Court for Sierra Leone, is emphasized. Particular attention is paid to the principle of presumption of innocence, which has fundamental and quintessential characteristics in the field of human rights.

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.

The Global Community Yearbook of International Law and Jurisprudence 2019

2020 ◽  
Keyword(s):  
Human Rights ◽  
International Law ◽  
Environmental Law ◽  
Criminal Court ◽  
Original Research ◽  
The European Union ◽  
Global Community ◽  
International Courts ◽  
Court Of Justice ◽  
Global Law

The 2019 edition of the Global Community Yearbook of International Law and Jurisprudence both updates readers on the important work of long-standing international tribunals and introduces readers to more novel topics in international law. The Yearbook continues to provide expert coverage of the Court of Justice of the European Union and diverse tribunals from the International Court of Justice (ICJ) to criminal tribunals such as the International Criminal Court (ICC) and the International Residual Mechanism for Criminal Tribunals (MICT), to international courts of human rights (ECtHR, IACtHR, ACtHPR), to economically based tribunals such as ICSID and the WTO Dispute Resolution panel. This edition contains original research articles on the development and analysis of the concept of global law and the views of the global law theorists such as: a judicial knowledge-sharing process as a tool for courts working together in a universal constitutional structure; the key insights emerging from the Global Environment Outlook-6, and the progress that has been made in international environmental law; the role of human rights treaty monitoring bodies in the international legal order; and an examination of the consequences of the UN Compact for Safe, Orderly and Regular Migration on international law. The Yearbook provides students, scholars, and practitioners alike a valuable combination of expert discussion and direct quotes from the court opinions to which that discussion relates, as well as an annual overview of the process of cross-fertilization between international courts and tribunals.

The right to appeal to the European Court of Human Rights

2020 ◽  
Author(s):  
Yuliya Samovich
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Legal Regulation ◽  
The European Union ◽  
Educational Organizations ◽  
European Court ◽  
Protection Of Human Rights ◽  
Judicial Procedure ◽  
The Right ◽  
Judicial Protection

The manual is devoted to making individual complaints to the European Court of human rights: peculiarities of realization of the right to appeal, conditions of admissibility and the judicial procedure of the European Court of Human Rights. The author analyses some “autonomous concepts” used in the court's case law and touches upon the possibility of limiting the right to judicial protection. The article deals with the formation and development of the individual's rights to international judicial protection, as well as the protection of human rights in universal quasi-judicial international bodies and regional judicial institutions of the European Union and the Organization of American States. This publication includes a material containing an analysis of recent changes in the legal regulation of the Institute of individual complaints. The manual is recommended for students of educational organizations of higher education, studying in the areas of bachelor's and master's degree “Jurisprudence”.

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.

Introductory Note

2018 ◽  
Author(s):  
Guido Raimondi
Keyword(s):  
Human Rights ◽  
Separation Of Powers ◽  
Freedom Of Expression ◽  
European Convention ◽  
European Court ◽  
European Public ◽  
Introductory Note ◽  
Un Security Council ◽  
The Right ◽  
The Eu

This article comments on four important judgments given by the European Court of Human Rights in 2016. Al-Dulimi v. Switzerland addresses the issue of how, in the context of sanctions regimes created by the UN Security Council, European states should reconcile their obligations under the UN Charter with their obligations under the European Convention on Human Rights to respect the fundamentals of European public order. Baka v. Hungary concerns the separation of powers and judicial independence, in particular the need for procedural safeguards to protect judges against unjustified removal from office and to protect their legitimate exercise of freedom of expression. Magyar Helsinki Bizottság v. Hungary is a judgment on the interpretation of the Convention, featuring a review of the “living instrument” approach. Avotiņš v. Latvia addresses the principle of mutual trust within the EU legal order and the right to a fair trial under Article 6 of the Convention.

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