Interaction between the European Court of Human Rights and member States: European consensus, advisory opinions and the question of legitimacy

2013 ◽  
pp. 116-134 ◽  
Author(s):  
Kanstantsin Dzehtsiarou
Keyword(s):  
Human Rights ◽  
Member States ◽  
European Consensus ◽  
European Court ◽  
Advisory Opinions

Hard Law or Soft Law—Does it Matter?

2018 ◽  
Author(s):  
Angelika Nußberger
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Soft Law ◽  
Member States ◽  
Black And White ◽  
European Consensus ◽  
Hard Law ◽  
European Court ◽  
The Difference ◽  
Unsolvable Problems

The European Court of Human Rights takes both hard law and soft law seriously, especially when it is necessary to adapt the wording of the European Convention on Human Rights to changed conditions in European societies and to explore what is called the ‘European consensus’. Nevertheless, the Court does not treat hard law and soft law in the same way. When clashes occur, it takes hard law more seriously than soft law. This finding can be linked to the acceptability and legitimacy of the Court’s jurisprudence. An interpretation of the Convention creating irreconcilable treaty obligations is generally not acceptable. An interpretation of the Convention going less far or further than rules of soft law might be criticized, but does not create unsolvable problems for member States. Thus, while there is no black-and-white scenario, the difference between hard law and soft law still matters in the Court’s jurisprudence.

2 Organization, Personnel, and Procedure

2020 ◽  
Author(s):  
Nussberger Angelika
Keyword(s):  
Human Rights ◽  
Fine Tuning ◽  
Original Version ◽  
European Convention ◽  
Member States ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
Set Up ◽  
Advisory Opinions

This chapter discusses the organization, personnel, and procedures of the European Court of Human Rights (ECtHR), frequently referred to as the Strasbourg Court. The Member States are the masterminds for setting the framework of the Court’s organization, procedure, and personnel. The rules laid down in the original version of the European Convention on Human Rights (ECHR) in 1950 underwent substantial reform when the permanent Court was established in 1998 on the basis of Protocol No 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms. The framework has been further modified by important additional protocols, especially Protocol No 14 allowing ‘single judges’ to adopt binding decisions, and Protocol No 16 introducing advisory opinions in addition to adversary procedures. However, not only the Member States make the rules. The Court itself has an important say in adapting the general set-up to its practical needs and in fine-tuning the regulations.

scholarly journals The Prospective Role of Constitutional Courts in the Advisory Opinion Mechanism Before the European Court of Human Rights: A First Comparative Assessment with the European Union and the Inter-American System

2015 ◽  
Vol 16 (6) ◽  
pp. 1387-1428
Author(s):  
Maria Dicosola ◽  
Cristina Fasone ◽  
Irene Spigno
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Advisory Opinion ◽  
The European Union ◽  
Constitutional Courts ◽  
Member States ◽  
High Courts ◽  
European Court ◽  
Advisory Opinions

On 2 October 2013, Protocol No. 16 to the European Convention on Human Rights (ECHR) was opened for signature by the Member States of the Council of Europe (CoE). The protocol, that has so far been signed by sixteen States and ratified by Albania, Georgia, Lithuania, San Marino and Slovenia, will enter into force in case of ratification by at least ten Member States. If the protocol becomes effective, it will expand the European Court of Human Rights’ competence to give advisory opinions upon request by domestic high courts and tribunals.

scholarly journals El Protocolo núm. 16 del Convenio Europeo de Derechos Humanos.

2020 ◽  
Author(s):  
Miguel Ángel Sevilla Duro
Keyword(s):  
Human Rights ◽  
Multilevel System ◽  
Member States ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Derechos Humanos ◽  
European Court ◽  
Advisory Opinions

El Protocolo núm. 16 incorpora la posibilidad de que los órganos jurisdiccionales de mayor rango de los Estados soliciten al TEDH opiniones consultivas sobre cuestiones relativas a la interpretación o aplicación del CEDH o sus Protocolos. Este mecanismo procesal puede tornarse efectivo y complementario a los ya existentes para promover un funcionamiento coherente, armónico y eficaz del sistema multinivel de protección de los Derechos Humanos en Europa. A lo largo del trabajo se analizan los antecedentes y objetivos del mecanismo, el contenido del Protocolo, las cuestiones más controvertidas de la articulación y su aplicación en las dos únicas solicitudes resueltas hasta la fecha. Ello se complementa con el esbozo de una propuesta para la articulación del mecanismo en el ordenamiento español. The Protocol No. 16 establishes a mechanism allowing the Highest courts and tribunals of the Member States to request the European Court of Human Rights advisory opinions on questions concerning the interpretation of the Convention or the Protocols thereto. This procedural mechanism may become effective and complementary to the existing ones in order to promote a coherent, harmonious and efficient functioning of the multilevel system of Human Rights protection in Europe. The paper analyses the precedents and objectives of the mechanism, the content of the Protocol, the most controversial articulation issues and its application in the two requests resolved by now. This is complemented with a proposal for the articulation of the mechanism in the Spanish system.

scholarly journals Castaño avoids a clash between the ECtHR and the CJEU, but erodes Soering. Thinking human rights transnationally

2020 ◽  
pp. 203228442097974
Author(s):  
Sibel Top ◽  
Paul De Hert
Keyword(s):  
European Union ◽  
Human Rights ◽  
Union Member ◽  
The European Union ◽  
Member States ◽  
Court Of Justice ◽  
European Court ◽  
Criminal Matters ◽  
European Union Member States

This article examines the changing balance established by the European Court of Human Rights (ECtHR) between human rights filters to extradition and the obligation to cooperate and how this shift of rationale brought the Court closer to the position of the Court of Justice of the European Union (CJEU) in that respect. The article argues that the ECtHR initially adopted a position whereby it prioritised human rights concerns over extraditions, but that it later nuanced that approach by establishing, in some cases, an obligation to cooperate to ensure proper respect of human rights. This refinement of its position brought the ECtHR closer to the approach adopted by the CJEU that traditionally put the obligation to cooperate above human rights concerns. In recent years, however, the CJEU also backtracked to some extent from its uncompromising attitude on the obligation to cooperate, which enabled a convergence of the rationales of the two Courts. Although this alignment of the Courts was necessary to mitigate the conflicting obligations of European Union Member States towards both Courts, this article warns against the danger of making too many human rights concessions to cooperation in criminal matters.

Abortion for Foetal Abnormalities in Ireland; The Limited Scope of the Irish Government’s Response to the A, B and C Judgment

2013 ◽  
Vol 20 (2) ◽  
pp. 117-143 ◽  
Author(s):  
Stephen Donoghue ◽  
Claire-Michelle Smyth
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Legal Abortion ◽  
Member States ◽  
Non Invasive ◽  
European Court ◽  
Margin Of Appreciation ◽  
Controversial Topic ◽  
The Government ◽  
Limited Scope

Abstract Abortion has been a controversial topic in Irish law and one which the Government has been forced to address following the decision of the European Court of Human Rights in A, B and C v. Ireland. The Working Group established to make recommendations have specifically been instructed to deal only with the issues raised in the A, B and C judgment and legislate on the basic of the ‘X case’. This restricted approach calls for legalisation of abortion only where the life of the mother is at risk, a position unique only to Ireland and Andorra within Europe. The vast majority of member states to the European Convention on Human Rights allow for legal abortion on the basis of foetal abnormality and with this emerging consensus the margin of appreciation hitherto afforded by the European Court to member states is diminishing. The advancement and availability of non-invasive genetic tests that can determine foetal abnormalities together with the ruling in R. R. v. Poland leaves Ireland in a precarious position for omitting any reference to foetal abnormalities in any proposed legislation.

“Unity in Diversity” Reloaded: The European Court of Human Rights’ Turn to Subsidiarity and its Consequences

2021 ◽  
Vol 15 (1) ◽  
pp. 93-123
Author(s):  
Mikael Rask Madsen
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Reform Process ◽  
Individual Member ◽  
Member States ◽  
European Court ◽  
Recent Developments ◽  
Unity In Diversity ◽  
The Common ◽  
Individual Justice

Abstract The European Convention of Human Rights system was originally created to sound the alarm if democracy was threatened in the member states. Yet, it eventually developed into a very different system with a focus on providing individual justice in an ever growing number of member states. This transformation has raised fundamental questions as to the level of difference and diversity allowed within the common European human rights space. Was the system to rest on minimum standards with room for domestic differences, or was it to create uniform standards? These questions have come up as increasingly contentious issues over the past years and have triggered a number of reforms seeking to introduce more subsidiarity in the system, striking a different balance between the European and national oversight of human rights. The article analyses this turn to subsidiarity by exploring whether the reform process has introduced new forms of difference and diversity within the common space of European human rights. Covering the period from 2000 to the end of 2019 and using a dataset of all judgments of the period, the article provides a structural analysis of developments in reference to the margin of appreciation which is the European Court of Human Rights’ long-standing tool for balancing the common standards, yet leaving space for individual member states to find local solutions to implementing those standards. It concludes that recent developments have contributed to a more federal-style construction of European human rights with more space for differences within the common general standards.

The Impartiality of International Judges: Evidence from the European Court of Human Rights

2008 ◽  
Vol 102 (4) ◽  
pp. 417-433 ◽  
Author(s):  
ERIK VOETEN
Keyword(s):  
Human Rights ◽  
National Government ◽  
Judicial Behavior ◽  
Policy Preferences ◽  
Judicial Power ◽  
Government Behavior ◽  
Member States ◽  
European Court ◽  
International Court ◽  
Bright Side

Can international judges be relied upon to resolve disputes impartially? If not, what are the sources of their biases? Answers to these questions are critically important for the functioning of an emerging international judiciary, yet we know remarkably little about international judicial behavior. An analysis of a new dataset of dissents in the European Court of Human Rights (ECtHR) yields a mixed set of answers. On the bright side, there is no evidence that judges systematically employ cultural or geopolitical biases in their rulings. There is some evidence that career insecurities make judges more likely to favor their national government when it is a party to a dispute. Most strongly, the evidence suggests that international judges are policy seekers. Judges vary in their inclination to defer to member states in the implementation of human rights. Moreover, judges from former socialist countries are more likely to find violations against their own government and against other former socialist governments, suggesting that they are motivated by rectifying a particular set of injustices. I conclude that the overall picture is mostly positive for the possibility of impartial review of government behavior by judges on an international court. Like judges on domestic review courts, ECtHR judges are politically motivated actors in the sense that they have policy preferences on how to best apply abstract human rights in concrete cases, not in the sense that they are using their judicial power to settle geopolitical scores.

scholarly journals 4 The Court and Domestic and International Legal Systems

2020 ◽  
Author(s):  
Nussberger Angelika
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Vienna Convention ◽  
Legal Systems ◽  
Member States ◽  
Supreme Courts ◽  
European Court ◽  
Set Up ◽  
The One ◽  
The Relationship

This chapter assesses the relationship between the European Court of Human Rights (ECtHR) and domestic and international legal systems. With the ratification of the European Convention on Human Rights (ECHR), the Member States accept to be bound by final judgments of the Court and to implement them in their domestic legal systems. The Convention system does not make any difference as to the set-up of the national legal system or to the hierarchical position accorded to the Convention in national law. This is in line with a purist international law perspective, summarized in Article 27 of the Vienna Convention of the Law on Treaties: ‘A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.’ However, from the constitutional law perspective of the Member States, the situation is much more multi-faceted and complex. While it is generally accepted that the Court's judgments are binding and have to be implemented, the relationship between the Convention and the national constitutions as well as between their respective guardians, the Court on the one hand and national constitutional or supreme courts on the other hand, is not seen as one-way and hierarchical, but nuanced and differentiated. Implementation of judgments is accepted to be a duty, but not necessarily without exceptions. The chapter then considers the relationship between the ECtHR and the European Court of Justice (ECJ).

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