Proving Bad Faith in International Law: Lessons from the Article 18 Case law of the European Court of Human Rights

AbstractThis article is an expanded and footnoted version of the lectur given at the British Institute of International and Comparative Law on Tuesday 21 March 2006, entitled ‘International Law in the European Court of Human Rights’.The article begins with some comparative comments on the application of the European Convention on Human Rights in monistic and dualistic systems It then discusses in detail the European Court's case law which confirms that the Convention, despite its special character as a human rights treaty, is indeed part of public international law. It concludes that the Convention and international law find themselves in a kind of interactive mutual relationship. checking and buildine on each other.

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

Leiden Journal of International Law ◽

10.1017/s092215651500045x ◽

2015 ◽

Vol 28 (4) ◽

pp. 863-885 ◽

Cited By ~ 2

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.

(In)certezze giuridiche sulla situazione della Crimea: una «mappa» dei casi pendenti o decisi davanti alle corti europee

Eurasiatica - L’Ucraina alla ricerca di un equilibrio ◽

10.30687/978-88-6969-382-3/004 ◽

2019 ◽

Author(s):

Sara De Vido

Keyword(s):

Human Rights ◽

International Law ◽

Case Law ◽

Current Situation ◽

European Court Of Justice ◽

Court Of Justice ◽

European Court

The purpose of this chapter is to analyse the case of Crimea from an international law perspective, by reflecting on the numerous pending cases in front of the European Court of Human Rights and on two cases decided by the European Court of Justice. The chapter will not take a position on the legitimacy or not of the facts that led to the current situation. It will rather focus on the current de facto situation, case law, and on two pivotal notions in international law: sovereignty and jurisdiction.

Migration and the European Convention on Human Rights

Migration and the European Convention on Human Rights ◽

10.1093/oso/9780192895196.003.0001 ◽

2021 ◽

pp. 3-18

Author(s):

Başak Çalı ◽

Ledi Bianku ◽

Iulia Motoc

Keyword(s):

Human Rights ◽

International Law ◽

Critical Appraisal ◽

Case Law ◽

European Convention ◽

European Court

This chapter reviews the regulation of migration in international law, and locates the treatment of the question of migration in the European Convention on Human Rights. In particular, it shows that the text of the European Convention on Human Rights is silent on the question of migration or the rights of migrants, but that the European Court of Human Rights has nonetheless emerged as a key court for the rights of migrants through its interpretation of the Convention. The chapter then introduces the overall contribution of the collection of articles as a whole: a comprehensive and critical appraisal of the migration case law of the European Court of Human Rights.

Can diplomatic assurances, in their practical application, provide effective protection against the risk of torture and ill treatment? A focus on the evolution of the pragmatic approach of the European Court of Human Rights in removal cases of suspected terrorists

New Journal of European Criminal Law ◽

10.1177/2032284417743399 ◽

2017 ◽

Vol 8 (4) ◽

pp. 453-475

Author(s):

Martina Elvira Salerno

Keyword(s):

Human Rights ◽

International Law ◽

Case Law ◽

Practical Application ◽

Pragmatic Approach ◽

Effective Protection ◽

European Court

In order to implement counterterrorism measures, governments have frequently resorted to the use of diplomatic assurances. This practice aims to facilitate and legitimize the removal of non-nationals to third states with dubious human rights records, contrary to the obligation not to refoule set out under international law. This article raises the question of whether such assurances provide, in practical terms, effective protection against the risk that the transferred person may be subjected to torture and ill treatment upon return. With the purpose of addressing this issue, it is essential to evaluate whether diplomatic assurances can be deemed adequate and reliable guarantees of safety against ill treatment. In this regard, the position taken by international and regional human rights bodies is of profound importance. For this reason, this article considers and comparatively analyses the existing jurisprudence on non-refoulement and diplomatic assurances of such bodies. In particular, it closely examines the pragmatic approach of the European Court of Human Rights, by focusing on the abundant case law on the removal of suspected terrorists.

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

Amicus Curiae ◽

10.14296/ac.v2017i110.5035 ◽

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

Significance of the case of Urgenda for the development of climate litigations in Europe

Strani pravni zivot ◽

10.5937/spz65-31054 ◽

2021 ◽

pp. 249-265

Author(s):

Ljubomir Tintor

Keyword(s):

Climate Change ◽

Human Rights ◽

International Law ◽

Case Law ◽

State Responsibility ◽

National Courts ◽

European Court ◽

Combat Climate Change ◽

The Impact ◽

Harmful Effects

The article comprehensively analyses the case of Urgenda v. the Netherlands as the first successful climate litigation in Europe. The article analyses the arguments on which the Dutch courts established state responsibility for human rights violations caused by the failure of the state in the implementation of policies to combat climate change. The significance of this case is pointed out not only for Dutch, but also for international law. The second part of the article will show how the Urgenda case affected climate litigation that began to appear before national courts across Europe. Through a comparative analysis of cases, it will be pointed out that there is uneven case law in climate litigation before national courts. It will be seen how the Urgenda case had an impact on the initiation of climate disputes and before the European Court of Human Rights. Particular attention is paid to the issue of the connection between the impact of climate change and the torture caused by the harmful effects of global warming, which was initiated before the European Court of Human Rights in Strasbourg. At the end of the article, the perspective of climate litigation is considered.

Case Law of the European Court of Human Rights as a Source of Human Rights Law

Baltic Yearbook of International Law Online ◽

10.1163/22115897_01701_008 ◽

2020 ◽

Vol 17 (1) ◽

pp. 143-165

Author(s):

Ineta Ziemele

Keyword(s):

Human Rights ◽

International Law ◽

Case Law ◽

Human Rights Law ◽

Anglo Saxon ◽

Material Source ◽

European Court ◽

Legal Nature ◽

Being There ◽

The Impact

The European Court of Human Rights with its case law has been for decades a particularly important actor in developing human rights law in Europe and beyond. At the same time the question as to the legal nature of its case law has not received a single answer. Most traditionally, the answer to this question has been that case law is binding on all States parties to the Convention at least to the extent that it contains lex interpretata as part of the Court’s authoritative interpretation of the Convention entrusted to it by the founding States of the Convention regime. In accordance with the Convention’s Article 46, judgments of the Court are binding on the respondent State. At the same time, judgments are followed more generally by the Contracting Parties while the Court’s case law has added to the original – admittedly open-ended – text of the Convention. This article explores the impact of civil law tradition, Anglo-Saxon tradition and the theory of sources of international law on better conceptualization of the legal nature of the case law of the Court. It arrives at the conclusion that at least for the time being, there is a coherent tendency in more advanced legal systems to acknowledge that the courts and judges do occasionally make law. The example of the European Court of Human Rights goes along with these developments. It is argued that case law is a material source of law while the overall consolidation of the Convention system begs for the conclusion that the Court’s case law has become a formal source of law.

Legitimate limitations on the right of freedom of thought, conscience and religion: the challenges of a globalised world

Ukrainian Journal of International Law ◽

10.36952/uail.2020.3.56-63 ◽

2020 ◽

Vol 3 ◽

pp. 56-63

Author(s):

Yulia Fysun

Keyword(s):

Human Rights ◽

International Law ◽

Case Law ◽

European Court ◽

Freedom Of Thought ◽

The Right

The article is devoted to the study of the limitations on the right of freedom of thought, conscience and religion provided by international law. The essential criteria for legitimate limitations are determined. Unconditional protection of the freedom of thought and conscience as well as the freedom to have or adopt a religion or belief of one’s choice is emphasised. Particular attention is paid to the study of the case law of the European Court of Human Rights in this field.

Sports in the Case-Law of the European Court of Human Rights

Espaço Jurídico Journal of Law [EJJL] ◽

10.18593/ejjl.20212 ◽

2019 ◽

Author(s):

Jakub Czepek

Keyword(s):

Human Rights ◽

International Law ◽

Case Law ◽

Council Of Europe ◽

Human Rights Protection ◽

Rights Protection ◽

Point Of Interest ◽

European Court ◽

Degrading Treatment ◽

The Right

Sport has been an object of interest of international law on several occasions. It has also been a point of interest of regional human rights protection, for example within the legal system of Council of Europe. Recently, the European Court of Human Rights has developed its case-law concerning sport-related issues, such as football supporters related violence and prevention of events of hooliganism, anti-doping related issues or fairness of proceedings before The Court of Arbitration for Sport (CAS) in Lausanne or the protection of professional athletes’ rights in the context of anti-doping requirements. The article focuses on the ECtHR case-law relating to sport within the meaning of the right to life (art. 2 of the ECHR), prohibition of torture of inhuman or degrading treatment or punishment (art. 3 of the ECHR), right to liberty and security (art.5 of the ECHR), right to a fair trial (art.6 of the ECHR) or right to protection of private and family life (art.8 of the ECHR).