Domestic Judicial Design by International Human Rights Courts

2015 ◽  
Vol 109 (4) ◽  
pp. 713-760 ◽  
Author(s):  
David Kosař ◽  
Lucas Lixinski
Keyword(s):  
Human Rights ◽  
World War Ii ◽  
International Law ◽  
Environmental Law ◽  
Armed Conflicts ◽  
International Criminal Law ◽  
Refugee Law ◽  
European Court ◽  
The Law ◽  
International Refugee Law

Regional human rights courts in Europe and the Americas came into being in the wake of World War II. The European Court of Human Rights (ECHR) and Inter-American Court of Human Rights (IACHR) were established in order to adjudicate on alleged violations of the rights of individuals. Yet, since their inception these courts have also influenced other areas of international law. A part from their impact on general international law, their case law has had significant spill over effects on international criminal law, international refugee law, international environmental law, the law of armed conflicts, and the law of the sea.

The J.K. DecalogueA Paradigm Shift in Dealing with Asylum Cases in Strasbourg?

2021 ◽  
pp. 85-103
Author(s):  
Ledi Bianku
Keyword(s):  
Human Rights ◽  
International Law ◽  
Paradigm Shift ◽  
Traditional Approach ◽  
New Approach ◽  
Refugee Law ◽  
European Court ◽  
The Absolute ◽  
International Refugee Law ◽  
Grand Chamber

This chapter addresses the approach the European Court of Human Rights (ECHR) takes in asylum cases from the perspective of international refugee law doctrines. First, the chapter discusses the traditional approach in dealing with asylum cases in Strasbourg, i.e. starting the analysis from the basic promise of the rights of states to control the entry, residence, and expulsion of aliens. The Court considers that this approach is based on well-established international law and the chapter summarises the international law voices that inspire this approach, which has been taken by the Court for almost thirty years. The second part of the chapter analyses the Grand Chamber judgment in the case of J.K. v Sweden and the attempt by the Court, through this judgment, to elaborate general principles applicable in asylum cases in Strasbourg. The analysis of the hierarchy of these ten general principles by the Court in the J.K. judgment stems from the question of whether the Court is modifying its traditional approach in dealing with asylum cases and moving towards a new approach which is inspired by another line of thinking in international law. It also seems that with this new approach the Court gives precedence in its analysis of asylum cases to the absolute character of rights guaranteed by Article 3 of the ECHR. This would make the Court’s analysis of asylum cases more coherent with other cases when Article 3 rights are at stake.

Protecting the Environment during Multinational Military Operations

2019 ◽  
pp. 322-344
Author(s):  
Onita Das
Keyword(s):  
International Law ◽  
Criminal Law ◽  
Environmental Law ◽  
Armed Conflicts ◽  
International Criminal Law ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Military Operations ◽  
International Human Rights ◽  
Ongoing Work

The chapter examines issues concerning the protection of the environment during multinational military operations. Taking into consideration the International Law Commission’s (ILC) recent work regarding the protection of the environment in relation to armed conflicts, this contribution devotes particular attention to the preventive and remedial measures suggested in the Special Rapporteur’s reports. The chapter does, however, go beyond the ILC’s ongoing work on environmental protection in the context of armed conflict by extending its focus on exploring how multinational military operations generally—that is whether within or outside of armed conflicts—are influenced by other bodies of international law, namely international criminal law, international environmental law, and international human rights law.

Cases & Materials on International Law

2017 ◽  
Author(s):  
Martin Dixon ◽  
Robert McCorquodale ◽  
Sarah Williams
Keyword(s):  
International Law ◽  
International Criminal ◽  
Environmental Law ◽  
Criminal Court ◽  
International Criminal Law ◽  
Sixth Edition ◽  
Legal Personality ◽  
Wide Range ◽  
International Legal Order ◽  
The Law

Cases and Materials on International Law, a topical companion for study placing international law directly in the context of contemporary debate, offers broad coverage of international law, and is suitable for use alongside a range of course structures and teaching styles. The book provides readers with a comprehensive selection of case law extracts for their studies. Extracts have been chosen from a wide range of historical and contemporary cases to illustrate the reasoning processes of the courts and to show how legal principles are developed. The book contains the essential cases and materials needed in order to understand and analyse the international legal order, providing notes on selected extracts to explain the complexities of the law. The sixth edition provides expanded coverage of topical areas such as: the use of force in Iraq and Syria and the threat of terrorism; international criminal law and the International Criminal Court; and developments in human rights and international environmental law. The new edition considers the perspectives of non-western and feminist scholars. It also updates core areas of international law, including sovereignty over territory and judicial sovereignty, the law of the sea, state responsibility, international legal personality and peaceful settlement.

scholarly journals The Phenomena of Fragmentation in the Legal Relations between the Council of Europe and the European Union

2020 ◽  
Author(s):  
Viktoriya Kuzma
Keyword(s):  
European Union ◽  
Human Rights ◽  
International Law ◽  
International Organizations ◽  
The European Union ◽  
Council Of Europe ◽  
European Continent ◽  
Court Of Justice ◽  
European Court ◽  
The Law

This article presents the current issues in the law of international organizations and contemporary international law in general. It is pointed out that the division of international law into branches and institutions, in order to ensure the effective legal regulation of new spheres of relations, led to the emergence of autonomous legal regimes, even within one region, namely on the European continent. To date, these include European Union law and Council of Europe law. It is emphasized the features of the established legal relations between the Council of Europe and the European Union at the present stage. It is determined that, along with close cooperation between regional organizations, there is a phenomenon of fragmentation, which is accompanied by the creation of two legal regimes within the same regional subsystem, proliferation of the international legal norms, institutions, spheres and conflicts of jurisdiction between the European Court of Human Rights and the Court of Justice of the European Union. It is revealed that some aspects of fragmentation can be observed from the moment of establishing relations between the Council of Europe and the European Union, up to the modern dynamics of the functioning of the system of law of international organizations, the law of international treaties, law of human rights. Areas and types of fragmentation in relations between international intergovernmental organizations of the European continent are distinguished. One way to overcome the consequences of fragmentation in the field of human rights is highlighted, namely through the accession of the European Union to the Convention on Human Rights and Fundamental Freedoms 1950. Considerable attention has also been paid to defragmentation, which is partly reflected in the participation of the European Union in the Council of Europe’s conventions by the applying «disconnection clause». It is determined that the legal relations established between an international intergovernmental organization of the traditional type and the integration association sui generis, the CoE and the EU, but with the presence of phenomenon of fragmentation in a close strategic partnership, do not diminish their joint contribution into the development of the law of international organizations and contemporary international law in general. Key words: defragmentation; European Union; European Court of Human Rights; Convention on Human Rights and Fundamental Freedoms 1950; conflict of jurisdictions; «disconnection clause»; Council of Europe; Court of Justice of the European Union; fragmentation; sui generis.

State responsibility and positive obligations in the European Court of Human Rights: The contribution of the ICJ in advancing towards more judicial integration

2019 ◽  
Vol 33 (1) ◽  
pp. 177-187
Author(s):  
Rosana Garciandia
Keyword(s):  
Human Rights ◽  
International Law ◽  
European Convention ◽  
State Responsibility ◽  
European Court ◽  
The Icj ◽  
Protection Of Human Rights ◽  
The Law ◽  
Broad Interpretation ◽  
International Law Commission

AbstractThe European Court of Human Rights (ECtHR) follows its own rules regarding the responsibility of states, although the international law of state responsibility enshrined in the International Law Commission (ILC) Articles on State Responsibility for Internationally Wrongful Acts (ARSIWA) remains, as general international law, relevant to its decisions. However, case law of the ECtHR shows that the Court is departing from certain ARSIWA principles as it adopts a broad interpretation of rights contained in the European Convention on Human Rights (ECHR) giving rise to positive obligations.1Exploring those trends in the state responsibility regime of the ECHR, this article argues that, by clarifying certain ARSIWA provisions, the International Court of Justice (ICJ) can play an important role by contributing to a higher degree of judicial integration on the law of state responsibility. It is desirable that the ICJ takes any upcoming opportunity to provide greater clarity on the challenges and nuances of the applicability of the law of state responsibility, in particular as it relates to positive obligations. That would contribute to a more systematic use of those rules by regional courts such as the ECtHR, and ultimately to guaranteeing a greater protection of human rights.

Part II Sources, Ch.14 National Constitutions and Refugee Protection

2021 ◽  
Author(s):  
Lester Eve
Keyword(s):  
Human Rights ◽  
International Law ◽  
Constitutional Law ◽  
Critical Dimension ◽  
Methodological Framework ◽  
Human Rights Law ◽  
Refugee Protection ◽  
Refugee Law ◽  
International Refugee Law ◽  
The Relationship

This chapter explores how national constitutional frameworks add a critical dimension to refugee protection. Given the variability in the protective value of national constitutions for refugees, it considers how States draw strength from their constitutions in response to refugee movements and why they do so in particular ways. The chapter seeks to elucidate some of the complexities in the relationship between constitutional law and international refugee and human rights law, considering the relevance of constitutional text and context, State perspectives on the place of international law, and the extent to which constitutional law has shaped, and continues to shape, international law. The chapter offers a taxonomy as a methodological framework for differentiating these complexities, which suggests that the relationship between constitutional law and international refugee law might be understood in one of three ways: as symbiotic, ambivalent, or antagonistic. It then applies this framework to three case studies. It suggests that this approach may help us to think more strategically about how to harness the protective possibilities of constitutional law as well as wrestle more productively with constitutional law’s limitations.

Refugee Chains

2018 ◽  
pp. 399-409
Author(s):  
Alison Kesby
Keyword(s):  
International Law ◽  
Legal Status ◽  
Burden Sharing ◽  
Refugee Convention ◽  
Refugee Law ◽  
International Obligations ◽  
The Law ◽  
International Refugee Law ◽  
A Chain

This chapter uses the object and concept of a chain to examine international refugee law which is shown to be a chain of shifting hue and state of repair. At certain points along its length its interwoven links of gold retain the echo of their humanitarian ideal, and at others its gaps and corrosion come into view, jar, and unsettle. Seen in one light, we see international refugee law as a prized area of international law: the means by which some of the world’s most vulnerable may obtain a recognized legal status and associated rights. In another, its weaknesses become all too apparent, whether the discrepancy between states’ international obligations and their implementation thereof (eg non-refoulement) or the constraints and limits of the Refugee Convention. Issues discussed include the stasis and dynamism of the law, gaps in protection, and ‘burden sharing’ among states.

Thoughts on the relationship between International Humanitarian Law and Refugee Law, their promotion and dissemination

1988 ◽  
Vol 28 (265) ◽  
pp. 367-378
Author(s):  
Jovića Patrnogic
Keyword(s):  
Human Rights ◽  
International Law ◽  
20Th Century ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Human Beings ◽  
Refugee Law ◽  
The Relationship

From the beginning of the 20th century up to the present, international law has been marked by a profound evolution: it has been progressively humanized. Those responsible for drafting international law have clearly understood that it could no longer disregard the fate of human beings and leave to States and their internal laws the protection of fundamental human rights, both in peacetime and during armed conflicts.

The European Court of Human Rights and Public International Law

2014 ◽  
Keyword(s):  
Human Rights ◽  
International Law ◽  
State Responsibility ◽  
Public International Law ◽  
European Court ◽  
The Law ◽  
Diplomatic Immunity

How does the European Court of Human Rights deal with notions, issues and principles of public international law? How is public international law received and applied by the European Court of Human Rights? The different contributions analyse the question “Fragmentation or Unity?" in the jurisprudence of the European Court of Human Rights in light of different issues. Topics include the Court’s approach to the law of treaties, state responsibility, and state and diplomatic immunity. Likewise, the manner in which the European Court of Human Rights deals with the obligation to not recognize unlawful situations is examined.

scholarly journals International Law Issues Raised by the Transfer of Detainees by Canadian Forces in Afghanistan

2011 ◽  
Vol 56 (4) ◽  
pp. 959-1010
Author(s):  
Marco Sassòli ◽  
Marie-Louise Tougas
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Criminal ◽  
Standard Of Care ◽  
Armed Conflicts ◽  
International Criminal Law ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Canadian Forces ◽  
International Criminal Tribunals

The transfer of Afghan detainees to Afghan authorities by Canadian forces raised concerns in public opinion, in Parliament, and was the object of court proceedings and other enquiries in Canada. This article aims to explore the rules of international law applicable to such transfers. The most relevant rule of international humanitarian law (IHL) applies to prisoners of war in international armed conflicts. However, the conflict in Afghanistan, it is argued, is not of an international character. The relevant provision could nevertheless apply based upon agreements between Canada and Afghanistan and upon unilateral declarations by Canada. In addition, international human rights law (IHRL) and the very extensive jurisprudence of its mechanisms of implementation on the obligations of a state transferring a person to the custody of another state where that person is likely to be tortured or treated inhumanely will be discussed, including the standard of care to be applied when there is an alleged risk of torture. While IHL contains the rules specifically designed for armed conflicts, IHRL may in this respect also clarify as lex specialis the interpretation of concepts of IHL. Finally, the conduct of Canadian leaders and members of the Canadian forces is governed by international criminal law (ICL). This article thus demonstrates how IHL, IHRL, and ICL are intimately interrelated in contemporary armed conflicts and how the jurisprudence of human rights bodies and of international criminal tribunals informs the understanding of IHL rules.

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