‘The European Court of Human Rights: The Past, the Present, the Future’, American University International Law Review, 22, pp. 521–38

2016 ◽  
pp. 353-370
Keyword(s):  
Human Rights ◽  
International Law ◽  
American University ◽  
The Past ◽  
European Court ◽  
The Future

scholarly journals International Migration and Work: Charting an Ethical Approach to the Future

2020 ◽  
Vol 8 (2) ◽  
pp. 111-133
Author(s):  
Donald Kerwin
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Migration ◽  
Low Income ◽  
Rapid Change ◽  
Global Compact ◽  
Future Of Work ◽  
The Past ◽  
Ethical Approach ◽  
The Future

Executive Summary This research was conducted at the request of the International Catholic Migration Commission (ICMC) as part of a two-year special initiative entitled “The Future of Work, Labour After Laudato Sì.” 1 This article explores the future of work, international migration, and the intersection of the two at a time of rapid change, uncertainty, and disruption for migrants, laborers, and their families and communities. It draws on human rights principles, international law, and religious values, particularly from the Catholic tradition, to chart an ethical approach to the governance of these timeless phenomena. What does the future hold? Under one dystopian scenario, the future of work will be characterized by massive job loss due to automation, robotics, and artificial intelligence. Politicians and business leaders will characterize the resulting human displacement as an unavoidable “disruption” and byproduct of change. Euphemisms, however, will poorly mask the loss of livelihood, self-esteem, and a central marker of identity for countless persons, particularly the poor and vulnerable. Technological advances will decimate families, communities, and entire ways of life. For many, stable work will become a thing of the past, and technology an instrument of marginalization and discrimination. Algorithms will be used to “perpetuate gender bias” ( ILO 2019a , 35), pit workers against each other, and squeeze the maximum productivity from them for the minimum compensation. The “inappropriate use” and “weak governance” of algorithms will lead to “biases, errors and malicious acts” ( Albinson, Krishna, and Chu 2018 ). Large swaths of the world’s citizens will become (at best) the unhappy dependents of states and global elites. The future of migration seems equally daunting. Current trends suggest that the number of international migrants will continue to rise due to job displacement, violence, natural disaster, and states that cannot or will not meet their fundamental responsibilities. If the past is prologue, unscrupulous politicians and media sources will also continue to blame migrants for the economic and cultural displacement of their constituents, xenophobia will increase, and migrants will encounter hostility in host communities. Natives will criticize their governments and institutions for failing to protect their interests and needs, and migrant laborers will be caught in the middle. This article does not minimize the urgency of the challenges presented by migration and work. It documents the unacceptable living, working, and migration conditions of immense numbers of the world’s citizens. It offers, however, a more optimistic vision of the future than the dystopian view, a vision characterized by international cooperation and solidarity. It recognizes the potential of technology “to render labour superfluous, ultimately alienating workers and stunting their development,” but also its potential to “free workers from arduous labour; from dirt, drudgery, danger and deprivation” and “to reduce work-related stress and potential injuries” ( ILO 2019 , 43). It recognizes the way in which fear of displacement can lead to exclusionary nationalism and xenophobia, but also the possibility of unity based on the shared values embedded in the cultures of diverse persons. It recognizes the costs of migration, but also its immense contributions to host communities. The article argues for person-centered systems and policies that promote the freedom, rights, and dignity of workers, migrants, and migrant workers, and that strengthen migrant host communities. It begins by examining the challenges facing low-income and vulnerable migrants who struggle for decent work, are the most likely to lose their jobs, and are “the least equipped to seize new job opportunities” ( ILO 2019 , 18). 2 It then presents an ethical, person-centered vision of migration and work, rooted in human rights principles, international law, and Catholic social teaching. The article also draws on principles articulated in the Global Compact on Safe, Orderly and Regular Migration (GCM); the Global Compact on Refugees (GCR); and the Holy See’s Twenty Action Points for the Global Compacts. It ends with a series of recommendations that seek to bring this vision to fruition.

Re-Conceptualizing the Right to Seek and Obtain Asylum in International Law

2015 ◽  
Vol 4 (2) ◽  
pp. 303-332
Author(s):  
Salvatore Fabio Nicolosi
Keyword(s):  
Human Rights ◽  
International Law ◽  
Asylum Seekers ◽  
International Human Rights ◽  
The Past ◽  
European Court ◽  
Triggering Factor ◽  
The Right ◽  
Human Rights Standards

Over the past few years the issue of asylum has progressively become interrelated with human rights. Asylum-related stresses, including refugee flows and mass displacements, have mitigated the traditional idea of asylum as an absolute state right, in so far as international human rights standards of protection require that states may have the responsibility to provide asylum seekers with protection. Following this premise, the article argues that the triggering factor of such overturning is significantly represented by the judicial approach to the institution of asylum by regional human rights courts. After setting the background on the interrelation of asylum with human rights, this article conceptualises the right to asylum as derived from the principle of non-refoulement and to this extent it delves into the role of the two regional human rights courts, notably the European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights (IACtHR), in order to explore whether an emerging judicial cross-fertilisation may contribute to re-conceptualisation of the right to asylum from a human rights perspective.

International Migration and Work: Charting an Ethical Approach to the Future

2020 ◽  
pp. 231150242091322
Author(s):  
Donald Kerwin
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Migration ◽  
Low Income ◽  
Rapid Change ◽  
Global Compact ◽  
Future Of Work ◽  
The Past ◽  
Ethical Approach ◽  
The Future

Executive Summary This research was conducted at the request of the International Catholic Migration Commission (ICMC) as part of a two-year special initiative entitled “The Future of Work, Labour After Laudato Sì.” 1 This article explores the future of work, international migration, and the intersection of the two at a time of rapid change, uncertainty, and disruption for migrants, laborers, and their families and communities. It draws on human rights principles, international law, and religious values, particularly from the Catholic tradition, to chart an ethical approach to the governance of these timeless phenomena. What does the future hold? Under one dystopian scenario, the future of work will be characterized by massive job loss due to automation, robotics, and artificial intelligence. Politicians and business leaders will characterize the resulting human displacement as an unavoidable “disruption” and byproduct of change. Euphemisms, however, will poorly mask the loss of livelihood, self-esteem, and a central marker of identity for countless persons, particularly the poor and vulnerable. Technological advances will decimate families, communities, and entire ways of life. For many, stable work will become a thing of the past, and technology an instrument of marginalization and discrimination. Algorithms will be used to “perpetuate gender bias” ( ILO 2019a , 35), pit workers against each other, and squeeze the maximum productivity from them for the minimum compensation. The “inappropriate use” and “weak governance” of algorithms will lead to “biases, errors and malicious acts” ( Albinson, Krishna, and Chu 2018 ). Large swaths of the world’s citizens will become (at best) the unhappy dependents of states and global elites. The future of migration seems equally daunting. Current trends suggest that the number of international migrants will continue to rise due to job displacement, violence, natural disaster, and states that cannot or will not meet their fundamental responsibilities. If the past is prologue, unscrupulous politicians and media sources will also continue to blame migrants for the economic and cultural displacement of their constituents, xenophobia will increase, and migrants will encounter hostility in host communities. Natives will criticize their governments and institutions for failing to protect their interests and needs, and migrant laborers will be caught in the middle. This article does not minimize the urgency of the challenges presented by migration and work. It documents the unacceptable living, working, and migration conditions of immense numbers of the world’s citizens. It offers, however, a more optimistic vision of the future than the dystopian view, a vision characterized by international cooperation and solidarity. It recognizes the potential of technology “to render labour superfluous, ultimately alienating workers and stunting their development,” but also its potential to “free workers from arduous labour; from dirt, drudgery, danger and deprivation” and “to reduce work-related stress and potential injuries” ( ILO 2019 , 43). It recognizes the way in which fear of displacement can lead to exclusionary nationalism and xenophobia, but also the possibility of unity based on the shared values embedded in the cultures of diverse persons. It recognizes the costs of migration, but also its immense contributions to host communities. The article argues for person-centered systems and policies that promote the freedom, rights, and dignity of workers, migrants, and migrant workers, and that strengthen migrant host communities. It begins by examining the challenges facing low-income and vulnerable migrants who struggle for decent work, are the most likely to lose their jobs, and are “the least equipped to seize new job opportunities” ( ILO 2019 , 18). 2 It then presents an ethical, person-centered vision of migration and work, rooted in human rights principles, international law, and Catholic social teaching. The article also draws on principles articulated in the Global Compact on Safe, Orderly and Regular Migration (GCM); the Global Compact on Refugees (GCR); and the Holy See’s Twenty Action Points for the Global Compacts. It ends with a series of recommendations that seek to bring this vision to fruition.

Closing Ports of Safety: A Legitimate Strategy of Migration Control?

2019 ◽  
Vol 3 (1) ◽  
pp. 111-127
Author(s):  
Lena Riemer
Keyword(s):  
Human Rights ◽  
International Law ◽  
European Convention ◽  
The European Union ◽  
Public Power ◽  
The Past ◽  
Novel Approach ◽  
European Court ◽  
Migration Control ◽  
The Individual

In the past decades, the European Union and its member states have increasingly relied on externalization and non-arrival strategies for migration control. One of the latest developments is the decision by Malta and Italy to unilaterally close their ports to vessels carrying migrants rescued at sea. The article examines the conformity of such practices with the international law of the sea and focuses especially on the customary port of safety principle. It also addresses the applicability of the European Convention on Human Rights in cases where the rejected vessels have not entered the territory of a member state. The paper provides a novel approach for the establishment of the European Court of Human Rights’ jurisdiction in such cases of extraterritorial migration control, arguing that the jurisdiction could be founded on the imputable-public-power-test. Based on the analysis of potential violations of rights guaranteed by the Convention and its Protocols, the respective practices may, depending on the individual cases, violate the non-refoulement principle and/or the prohibition of collective expulsion.

scholarly journals Access to Abortion in Cases of Fatal Foetal Abnormality: A New Direction for the European Court of Human Rights?

2019 ◽  
Author(s):  
Bríd Ní Ghráinne ◽  
Aisling McMahon
Keyword(s):  
Human Rights ◽  
International Law ◽  
European Convention ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Positive Aspect ◽  
The Past ◽  
Sensitive Topics ◽  
European Court ◽  
Degrading Treatment

ABSTRACT In contrast to the United Nations Human Rights Committee, the European Court of Human Rights (ECtHR) has not yet found that a prohibition of abortion in cases of fatal foetal abnormality violates the prohibition of torture or inhuman or degrading treatment under Article 3 of the European Convention on Human Rights. We argue that the ECtHR is on the verge of aligning itself with the Committee because, first, recent ECtHR jurisprudence is broadening its interpretation of rights within the abortion context; second, the ECtHR frequently uses international law as an interpretative tool; and, third, moving in the direction of the Committee would not be as controversial as it may have been in the past. More broadly, we view the proliferation of international and regional human rights' treaty regimes as a positive aspect of international human rights law and demonstrate how a body established to adjudicate on human rights disputes can, with some ingenuity, broaden its approach on sensitive topics by engaging with views of other human rights courts and treaty monitoring bodies.

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.

Does the Injunction Gap Violate Implementers’ Fair Trial Rights Under the ECHR?

2020 ◽  
Author(s):  
Léon E Dijkman
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
European Convention ◽  
The Past ◽  
European Court ◽  
The Subject ◽  
The Right ◽  
Federal Supreme ◽  
Validity Of A Patent

Abstract Germany is one of few jurisdictions with a bifurcated patent system, under which infringement and validity of a patent are established in separate proceedings. Because validity proceedings normally take longer to conclude, it can occur that remedies for infringement are imposed before a decision on the patent’s validity is available. This phenomenon is colloquially known as the ‘injunction gap’ and has been the subject of increasing criticism over the past years. In this article, I examine the injunction gap from the perspective of the right to a fair trial enshrined in Art. 6 of the European Convention on Human Rights. I find that the case law of the European Court of Human Rights interpreting this provision supports criticism of the injunction gap, because imposing infringement remedies with potentially far-reaching consequences before the validity of a patent has been established by a court of law arguably violates defendants’ right to be heard. Such reliance on the patent office’s grant decision is no longer warranted in the light of contemporary invalidation rates. I conclude that the proliferation of the injunction gap should be curbed by an approach to a stay of proceedings which is in line with the test for stays as formulated by Germany’s Federal Supreme Court. Under this test, courts should stay infringement proceedings until the Federal Patent Court or the EPO’s Board of Appeal have ruled on the validity of a patent whenever it is more likely than not that it will be invalidated.

The European Convention on Human Rights and International Law

2007 ◽  
Vol 56 (2) ◽  
pp. 217-231 ◽  
Author(s):  
Luzius Wildhaber
Keyword(s):  
Human Rights ◽  
International Law ◽  
Comparative Law ◽  
Case Law ◽  
European Convention ◽  
Mutual Relationship ◽  
Public International Law ◽  
European Court ◽  
Special Character ◽  
British Institute

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.

Feminism, Modern Philosophy and the Future of Legitimacy of International Constitutionalism

2009 ◽  
Vol 11 (2) ◽  
pp. 219-245
Author(s):  
Ekaterina Yahyaoui Krivenko
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Human Rights Law ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Adequate Understanding ◽  
The Future ◽  
Migrants Rights ◽  
To Come ◽  
International Constitutionalism

AbstractInternational constitutionalism relates to processes of limiting traditionally unrestricted powers of states as ultimate subjects, law-makers and law-enforcers of international law. Human rights occupy a central, but very confusing and confused role in the theorisation of international constitutionalism. If feminist scholars have criticised the inadequacies, shortcomings and gaps of international law of human rights at least since 1991, the doctrine of international law theorising constitutionalisation of international law until now has remained blind to these critiques idealising human rights and often using them as the ultimate legitimating factor. Thus, legitimacy and legality become confused and the distinction between them blurred in the doctrine of international constitutionalism. This in turn creates a danger of failure of the constitutionalists project itself, as it will serve to reinforce existing inadequacies and gaps in human rights protection. To illustrate this argument, I discuss some examples related to the protection of women's and migrants' rights. In order to avoid this dangerous development, I argue that international lawyers theorising international constitutionalism shall adopt an adequate, inclusive notion of legitimacy. In order to develop this adequate understanding of legitimacy, they should first take seriously feminist and other critiques of international human rights law and international law more generally. In the final parts of this article I develop my own more detailed proposals on the future of legitimacy and international constitutionalism. In doing so, I draw on the 'self-correcting learning process' developed in the writings of Jürgen Habermas, 'democracy to come' and more general views on the nature of sovereignty and human rights expressed by Jacques Derrida, as well as Levinasian 'responsibility-to-and-for-the-Other'.

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