scholarly journals The State of Democratization in Post-Soviet Russia: The Role of the European Court of Human Rights and the Growth of Rule of Law

2014 ◽  
Author(s):  
Lauren Montgomery
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
The State ◽  
European Court ◽  
Soviet Russia

scholarly journals Fault, knowledge and risk within the framework of positive obligations under the European Convention on Human Rights

2020 ◽  
Vol 33 (3) ◽  
pp. 601-620
Author(s):  
Vladislava Stoyanova
Keyword(s):  
Human Rights ◽  
The State ◽  
European Convention ◽  
Main Argument ◽  
European Court ◽  
Normative Considerations

AbstractThe European Court of Human Rights has consistently reiterated that positive obligations under the European Convention on Human Rights arise when state authorities know or ought to have known about the risk of harm. This article attempts to describe and assess the role of state knowledge in the framework of positive obligations, and to situate the Court’s approach to knowledge about risk within an intelligible framework of analysis. The main argument is that the assessment of state knowledge is imbued with normative considerations. The assessment of whether the state ‘ought to have known’ is intertwined with, first, concerns that positive obligations should not impose unreasonable burden on the state and, second, the establishment of causal links between state omissions and harm.

How Loud Do the Alarm Bells Toll? Execution of ‘Article 18 Judgments’ of the European Court of Human Rights

2021 ◽  
pp. 1-29
Author(s):  
Başak Çali
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Significant Risk ◽  
The State ◽  
Execution Phase ◽  
European Court ◽  
Over Time

Abstract This article investigates whether Article 18 judgments of the European Court of Human Rights, indicating that the state authorities pursued ulterior and illegitimate motives when violating the Convention, receive the seriousness and the urgency that they call for at the execution phase. By way of an analysis of the responses of the Committee of Ministers and states on the receiving end of Article 18 judgments between 2004 and June 2021, this article finds that the collective responsiveness of the Committee of Ministers to Article 18 judgments has increased over time, especially with respect to individual measures required to implement Article 18 judgments. So far, the responsiveness of individual states to their Article 18 judgments does, however, vary significantly, ranging from taking concrete steps to implement the judgments to outright resistance and no response, posing a significant risk to the Convention system’s ability to respond to the decay of rule of law.

scholarly journals The Ramifications of Reservations to Human Rights Treaties

2020 ◽  
Vol 8 (1) ◽  
pp. 150-165
Author(s):  
Lara Mullins
Keyword(s):  
Human Rights ◽  
International Law ◽  
The United States ◽  
The State ◽  
State Sovereignty ◽  
Political Climate ◽  
European Court ◽  
Human Rights Treaties ◽  
Conservative Values

This paper discusses the legal ramifications of reservations to multilateral human rights treaties. It examines the approach of the International Court of Justice (ICJ), compared to that of the European Court of Human Rights (ECtHR), in light of the general practice in international law relating to reservations and the International Law Commission’s commentary. The paper then discusses the scope for change and growth, given the nature of the two different approaches. Once it has set out the current law it describes the role of the evolving moral, social and political climate in society and the effect that it has on the conversation around human rights and treaty reservations. It answers three main questions around reservations: first, whether reservations are allowed; second, the conditions under which they are allowed; and third, if reservations are not allowed, whether the invalid reservation cancels a party’s membership of the treaty. Having answered these three questions, the paper draws to the conclusion that, ultimately, for international law to continue to be effective, state sovereignty must be given the utmost respect and importance in relation to reservations. With the current polarisation of the political climate, as is evidenced by the traditionally liberal states’ leaning towards conservative values, as in Britain and the United States, a push by the ECtHR to sever reservations from treaties and still bind the state will only alienate key players from the international stage. At face value, one may be inclined to think that the stringent protection of human rights values and limiting the reservations to such values is beneficial but, in reality, this would make participation in the international framework unappealing to states as their sovereignty would be infringed. Therefore, the ICJ’s approach is advantageous as it understands the role of reservations in achieving participation and it also understands the state practice element. Thus, in line with the ILC commentary and the ICJ’s judgements, the ECtHR’s recent rulings will not become the international law norm and state sovereignty with respect to reservations will continue to prevail.

scholarly journals The Role of the European Court of Human Rights in Promoting Horizontal Positive Obligations of the State

2017 ◽  
Vol 17 (2) ◽  
pp. 39-53 ◽  
Author(s):  
Monika Florczak-Wątor
Keyword(s):  
Human Rights ◽  
The State ◽  
European Convention ◽  
Wide Margin ◽  
European Court ◽  
Margin Of Appreciation

Summary Over the last forty years the concept of the horizontal positive obligations of the State Parties to the European Convention on Human Rights has been developing in a number of cases of the European Court of Human Rights. This concept extends the protection of Convention rights and freedoms to horizontal relations, that is, to the relations between two private parties. However, the Convention on Human Rights can be violated only by the State; the violation by private parties is not possible, as private parties are not parties to the Conventions. Therefore, the only way to challenge a violation of Convention rights committed by private parties is to link this action to an act or omission of the State, and to claim that the State is responsible for it. This, in turn, requires demonstrating that the Convention obliges the State to protect one individual’s Convention rights from violations committed by other individuals. The State has a wide margin of appreciation as to how it discharges the obligation to protect Convention rights against violations by private individuals.

scholarly journals HAK ASASI MANUSIA DAN DEMOKRASI DI INDONESIA

2018 ◽  
Vol 9 (2) ◽  
pp. 172
Author(s):  
Fitriani Amalia ◽  
Anies Prima Dewi
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Descriptive Analysis ◽  
The State ◽  
Legal Research ◽  
The Rule Of Law ◽  
Role Of The State ◽  
Qualitative Descriptive ◽  
Democratic Country

The existence of human rights in the conception of the rule of law and democracy in Indonesia is the most basic. However, the concept of regulating human rights by the state does not mean that there is a restriction on human rights by the State, but the concept is regulation by the State. Using normative legal research, also called doctrinal law research. In this type of legal research, law is often conceptualized as what is written in laws and regulations (law in books). Analyzed using qualitative descriptive analysis. The results of this study indicate that, in a democratic country, the implementation of human rights is a must. The degree of implementation of democracy and human rights is also influenced by the role of the State. The implementation of democracy and human rights with the people's sovereignty are ideals to be achieved.Keywords: democracy; human rights. AbstrakKeberadaan Hak Asasi Manusia dalam konsepsi Negara hukum dan demokrasi di Indonesia suatu hal yang paling mendasar. Namun konsepsi pengaturan hak asasi manusia oleh negara tersebut bukan berarti terjadinya pengekangan hak asasi manusia oleh Negara, namun konsepsinya adalah pengaturan oleh Negara. Menggunakan penelitian hukum normatif, di sebut juga penelitian hukum doktrinal. Pada penelitian hukum jenis ini, acapkali hukum di konsepkan sebagai apa yang tertulis dalam peraturan perundang undangan (law in books). Dianalisis menggunakan analisis deskriptif kualitatif. Hasil penelitian ini menunjukkan bahwa, pada suatu Negara yang berdemokrasi, implementasi Hak Asasi Manusia merupakan suatu keharusan. Tingkatan implementasi demokrasi dan hak asasi manusia juga dipengaruhi oleh peran Negara. Implementasi demokrasi dan Hak asasi manusia yang berkedaulatan rakyat merupakan cita-cita yang hendak dicapai.Kata Kunci : demokrasi; hak asasi manusia.

scholarly journals ROLE OF JUDGES’ DIALOG IN PROVING OF THE RULE OF LAW

2017 ◽  
pp. 0-0
Author(s):  
Ханлар Гаджиев ◽  
Khanlar Gadzhiev
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Social Relations ◽  
European Convention ◽  
The Rule Of Law ◽  
National Courts ◽  
European Court ◽  
Protection Of Human Rights ◽  
Legal Space

The article discusses the problem of interpretation of the provisions of the European Convention on human rights by European Court of Human Rights, as well as the development of dialogue between judges of different levels, aimed at the formation of the European “common” law. Placing at the forefront the principle of the rule of law as the basis for all the guarantees of human rights, the author substantiates the necessity of the interaction of various levels courts, based on mutual respect, dialogue of the courts, what will undoubtedly lead to the enrichment of the legal system, searching for the most complete and effective regulation of social relations. According to the author, the effectiveness of interaction between courts is based primarily on a shared understanding of the importance of the activities of ECtHR judges in the development of common approaches to the protection of human rights and consolidation of the efforts in search of forming a common legal space. Using the example of some cases considered by the ECtHR, the article illustrated the options of interaction of the Court with national courts. The article reveals some problematic issues in the activity of the ECtHR, in particular the lack of involvement the principle of harmonious interpretation.

The ECtHR's Role as a Guardian of Discourse: Safeguarding a Decision-Making Process Based on Well-Established Standards, Practical Rationality, and Facts

2018 ◽  
Vol 31 (2) ◽  
pp. 335-361
Author(s):  
BJÖRNSTJERN BAADE
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Rule Of Law ◽  
Practical Rationality ◽  
European Convention ◽  
Decision Making Process ◽  
The Rule Of Law ◽  
European Court ◽  
Basic Standards

AbstractThis article argues that understanding the role of the European Court of Human Rights (ECtHR or the Court) to be that of a guardian of discourse would respect legitimate disagreement among pluralist democracies, while enabling the Court to safeguard human rights in a meaningful and effective way.From the European Convention on Human Rights (ECHR or the Convention) and the Court's jurisprudence, three basic standards of review can be distilled: First, wherever the Convention's requirements are sufficiently concrete, the Court holds contracting states to well-established standards. Second, when applying broad, abstract and relative Convention rights, the Court safeguards the practical rationality of a democratic decision-making discourse under the rule of law – a substantive review standard that is influenced by procedural factors. Third, the Court also needs to check the facts underlying the case, in order to render its control effective.By setting ‘soft’ precedent in the form of factors that guide future decision-making without entirely prejudging it, and by taking into account second-order reasons concerning its legitimacy to intervene, the Court is acting as a second player in states’ decision-making discourse. Its task is not to replace the institutions originally responsible for taking the decision, but to ensure that they conform to their own role.

Sign in / Sign up

Export Citation Format

Share Document