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Part of the book's background chapters on the ECtHR's engagement in Turkey's Kurdish conflict, Chapter 2 seeks answers to the following puzzle: How is it that Turkey remains an authoritarian regime despite havig been part of the post-World War II international liberal democratic order? Arguing that the answer lies in the country's political history and sociological reality, it traces Turkey’s post-war tumultuous experience with electoral democracy, constitutionalism, human rights and minority protection against the backdrop of its engagement with international and European institutions, including the European Union and the Council of Europe. It argues that Turkey’s transition to polyarchy in 1950 has never translated into democratisation, which cannot be solely explained by frequent military interventions. Rather, authoritarianism has survived in Turkey due to unique social and political factors, including sustained electoral support for anti-democratic laws and policies, a tradition of a strong state immune to the internal checks of liberal democracy and the absence of a democratic culture.
Law, Democracy and the European Court of Human Rights examines the political rights jurisprudence of the European Court of Human Rights. It discusses how the Court supports a liberal representative and substantive model of democracy, and outlines the potential for the Court to interpret the Convention so as to support more deliberative, participatory and inclusive democratic practices. The book commences with an overview of different theories of democracy and then discusses the origins of the Council of Europe and the Convention and presents the basic principles on the interpretation and application of the Convention. Subsequent chapters explore issues around free expression, free assembly and association, the scope of the electoral rights, the right to vote, the right to run for election and issues about electoral systems. Issues discussed include rights relating to referendums, voting rights for prisoners and non-nationals, trade union rights and freedom of information.
The judgment in State of the Netherlands v. Urgenda Foundation marks one of the first successful challenges to climate change policy based on a human rights treaty. In this case, the Dutch Supreme Court upheld the lower court's opinion that the Netherlands has a positive obligation under the European Convention on Human Rights (ECHR) to take reasonable and suitable measures for the prevention of climate change. Although the Supreme Court recognized that climate change is a consequence of collective human activities that cannot be solved by one state on its own, it held that the Netherlands is individually responsible for failing to do its part to counter the danger of climate change, which, as the Court affirmed, inhibits enjoyment of ECHR rights. In reaching that conclusion, the Supreme Court determined the exact level of greenhouse gas (GHG) emissions reduction that the Netherlands is required to meet to comply with its ECHR obligation, specifically, a 25 percent reduction compared to its 1990 level by the end of 2020.
Wojciech Sadurski considers how the European Court of Human Rights (ECtHR), an emerging European constitutional court for human rights, has engaged in a public reason compatible scrutiny of legislative aims pursued by national laws interfering with the proclaimed rights. Sadurski concludes that the Court has almost always eschewed its authority to evaluate the aims of state laws or decisions in this way. On the very few occasions when it did express its doubts about the plausibility of the aims cited by the governments concerned, the Court either refused to attach any weight to these doubts and moved on to the next stage in the analysis (the necessity scrutiny). The main burden of the aim scrutiny was therefore shifted to the necessity stage, when the Court assessed whether the restrictions were necessary (in a democratic society) to attain this aim. Sadurski offers an explanation for this puzzling (as he claims) argumentative maneuver. Challenging the state at stage of aim ascertainment brings the Court into a head-on collision course with the state and risks weakening the Court’s legitimacy, which is tenuous at the best of times anyway.
Human rights are a mixed bag, and populist antipathy towards human rights is not spread evenly across its contents. The idea of a human right as such is too abstract to be sustained as an object of political suspicion. Usually it is some subset of human rights or some particular aspect of human rights practice that excites critical attention from populist politicians and the citizens who support them. The subset of rights that I want to concentrate on I will call “Rule-of-Law rights.” By that I mean the cluster of rights in each of the main human rights instruments that protect Rule-of-Law values, particularly procedural values.
The 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.
In all the applications before the ECtHR concerning migration at sea, a preliminary, yet seminal, question is whether the applicants were within the jurisdiction of the respondent State, in terms of Article 1 of the European Convention on Human Rights (ECHR). This question becomes even more apposite in contemporary situations of remote interception or search and rescue operations. In addressing the matter of jurisdiction in such cases, the law of the sea becomes of significant importance. This Article argues that as the International Tribunal of the Law of the Sea (ITLOS) has often taken into account human rights considerations, similarly, the European Court of Human Rights should read into the term “jurisdiction” under Article 1 of ECHR law of the sea considerations. Far from resurrecting Banković and the strict “general international law” notion of jurisdiction under ECHR, this Article only intends to shed some light on when a State would be considered as exercising such “authority and control over persons” in the maritime domain. In so doing, this Article will focus only on the potential application of the ECHR to the most common practices of States vis-à-vis migration on the high seas, namely interception and rescue operations.
The Federal Constitutional Court has decided that the prohibition to strike for career civil servants, as it has traditionally been part of the German legal order, is in compliance with the German Constitution. The Court thereby put a (provisional) end to a long-lasting debate on how to solve the tension between the fundamental freedom to form associations under Article 9(3) of the Basic Law, which arguably encompasses a right to strike, and Article 33(5) of the Basic Law, which protects the traditional principles of the career civil servants, which arguably encompasses the prohibition to strike. Through recognizing that the ban on strike action by career civil servants is not only allowed but required under the German Constitution, the Constitutional Court navigates the German legal order on a potential collision course with the European Convention on Human Rights and the European Court of Human Rights. In this context, the Constitutional Court on the one hand reaffirms the openness of the German constitutional order towards international law in general and human rights and the European Convention on Human Rights in particular. On the other hand, the Court somehow marginalizes the role of the European Court of Human Rights and threatens to not follow the Court should it hold that the European Convention on Human Rights demands a right to strike also for career civil servants.
This chapter engages in a critical review of the main thesis of Christopher Eisgruber and Lawrence Sager in Religious Freedom and the Constitution (Harvard, 2007), that religion is not “a … category of human experience that demands special benefits and/or necessitates special restrictions” or any “special immunity for religiously motivated conduct.” Against this position, this chapter argues that natural religion of the form manifested in the New York Regents’ prayer outlawed by the U.S. Supreme Court in Engel v. Vitale (1962) is not to be put on the same constitutional level as (or below) other human passionate interests or even conscience. The paper considers the Indian and the European Convention provisions on religious liberty.
Rule of law principles are essential for a fair and just society and apply to government activities regardless of whether those activities are undertaken by a human or automated data processing. This article explores how Data Protection Impact Assessments (DPIAs) could provide a mechanism for improved rule of law governance of data processing systems developed and used by government for public purposes in civil and administrative areas. Applying rule of law principles to two case studies provides a sketch of the issues and concerns that this article’s proposals for DPIAs seek to address. The article undertakes comparative analysis to find relevant principles and concepts for governance of data processing systems, looking at human rights impact assessments, administrative law, and process rights in environmental law. Drawing on this comparative analysis to identify specific recommendations for DPIAs, the article offers guidance on how DPIAs could be used to strengthen the governance of data processing by government in rule of law terms.
In its Chagos Advisory Opinion, the International Court of Justice (ICJ) ruled that the UK's detachment of the Chagos Archipelago from the colony of Mauritius on the eve of independence constituted a violation of customary international law (CIL). This article analyses the Court's approach to establishing the emergence and content of the right to self-determination in this frustrated case of decolonisation. It goes on to examine the argument that self-determination's peremptory character has decisive consequences in this specific context—a contention which found favour with several judges in their Separate Opinions. The article explores the extent to which the claims and counterclaims, made during the advisory proceedings, turned on countervailing readings of not only the key sources of custom but also of the principle of inter-temporal law. The final sections consider the significance of the Chagos Opinion for the Chagossians, both in relation to the Archipelago's resettlement and for their outstanding appeal in the UK courts (where the European Convention on Human Rights performs a pivotal role).
The high prevalence of tobacco smoking in prison, and certain aspects inherent in prison culture make smoking in that environment particularly difficult to regulate. Over the last decade, the UK government has adopted and sought to implement gradually its plan to make all prisons smoke-free nationwide. The UK Supreme Court recently ruled in Black that the Health Act 2006, which prohibits smoking in most enclosed public spaces, does not bind the Crown and consequently does not apply to public prisons. Both developments have implications for the human rights protection of smoking and non-smoking prisoners. This paper considers how English smoking and non-smoking prisoners’ (human) rights are currently protected, and what the legal implications are of a complete ban on smoking in English prisons. The paper reflects on whether an indoor smoking ban might strike a better balance between the competing rights and interests of smoking and non-smoking prisoners than a complete ban.
L’article considère l’interdiction des expulsions collectives dans la jurisprudence de la Cour européenne des droits de l’homme. La Cour adopte un point de vue réaliste qui permet d’inclure dans cette interdiction les expulsions au sens strict et les actes de non-admission, exigeant aux États d’agir toujours de bonne foi. Or, elle n’y inclut pas les expulsions implicites, et rabaisse significativement la protection conventionnelle par l’exclusion de l’exigence d’un entretien individuel. La possibilité de son application extraterritoriale et l’impossibilité d’écarter la responsabilité étatique sur la base d’accords avec des États tiers montrent cependant la portée large accordée à l’interdiction.
On 7 June 2018, the Supreme Court of the United Kingdom (UKSCt) issued its decision on, inter alia, whether Northern Ireland's near-total abortion ban was compatible with the European Convention of Human Rights (ECHR). This article critically assesses the UKSC's treatment of international law in this case. It argues that the UKSCt was justified in finding that Northern Ireland's ban on abortion in cases of rape, incest, and FFA was a violation of Article 8, but that the majority erred in its assessment of Article 3 ECHR and of the relevance of international law more generally.
This article argues that the public figure doctrine is doctrinally problematic and conceptually and normatively flawed. Doctrinal uncertainty surrounds who is affected and how rights are affected. Conceptually it raises challenges for universality, the non-hierarchical relationship between Articles 8 and 10 ECHR, the process of resolving rights conflicts, and the relationship between domestic law and the Convention. All of which necessitate a strong normative justification for the distinction. Yet there is no compelling rationale. The values underpinning the right to privacy of public figures are no different from those of other persons and there are other better mechanisms of accounting for freedom of expression. We should therefore reject the idea that public figures have fewer or weaker privacy rights or that the process of dealing with their rights is different and instead focus squarely upon the relative importance of the rights, and the degree of intrusion into those rights.
Studies of takings of property highlight the increasing penetration of state power into private life. Controversies regularly surround compensation provisions. Many academic analyses and decisions of the European Court of Human Rights have supported the proposition that market value offers the best approximation of just compensation. However, full market value compensation may not be guaranteed if the taking of property fulfils certain legitimate objectives of the ‘public interest’. To unpack the complexity surrounding compensation provisions under the European Convention on Human Rights, this paper adopts and develops a ‘law-and-community’ approach – an important dimension, not previously investigated in the study of takings of property – which sees ‘community’ as networks of social relations, and views law as not only grounded in community but also existing to regulate communal networks. This paper then identifies the limits of both Art 1, Protocol 1 of the ECHR and the current approaches to compensation in the light of this law-and-community approach. In so doing, the paper makes a distinctive contribution by offering a new socio-legal interpretation of controversies surrounding compensation for takings of property beyond the private/public divide and by proposing an alternative framework of engaging law and regulation in wider social life.
This article deals with the implementation, at the national level, of European human rights protection standards as enshrined in the European Convention on Human Rights (ECHR) and interpreted by the European Court of Human Rights (ECtHR). It discusses the principles of interpretation of the ECHR by the ECtHR, the interaction and mutual dialogue between the ECtHR and national courts, and the approach of the latter to interpretation and application of the case law of the ECtHR. Using the concrete examples of France and the Czech Republic as case studies, it is shown to what extent and how European constitutional courts take into account and apply the letter of the Convention and its interpretation by the ECtHR.
Are we defined by the choices we make or the duties we owe? This paper argues that there is a conflict between the fundamental conception of the individual as possessing the capacity to choose how to live, which has been held to be the foundation of the European Convention on Human Rights, and the understanding of the individual as a bearer of duties which has long underpinned the UK Constitution. Through case law analysis, it is shown that the tension between these two understandings of the individual underlies the troubled acceptance of the Human Rights Act 1998, and influences the UK judiciary's substantive interpretations of the Convention rights. It is ultimately argued that for the Convention rights to be fully accepted in the UK, the evolution from a duty to a choice-based understanding of the individual, which was artificially accelerated by the Human Rights Act, must be more widely accepted by society and the courts.
This article critically examines the role of the Immovable Property Commission, established in 2005 by the ‘Turkish Republic of Northern Cyprus’ under pressure from the European Court of Human Rights, to redress losses sustained by Greek Cypriots who fled south when the island was partitioned in the mid-1970s. While the Commission has been a modest success, proceedings have been lengthy, its decisions lack transparency, there have been difficulties with restitution and exchange, and the payment of compensation has often been delayed. Corporate ownership and encumbrances, such as mortgages, have also proved problematic. But, whether it contributes negatively or positively to full resolution of the Cyprus problem, or makes no contribution at all, remains to be seen.
It is by now uncontroversial that states may owe human rights obligations to individuals outside their territory. The debate about extraterritoriality has, so far, focused on the concept and interpretation of jurisdiction. The role of territory in general, and title in particular, in the conceptual landscape has received less attention in comparison. This article aims to fill this gap by showing that (a) title to territory continues to shape interpretations of jurisdiction, and (b) that this should be avoided. To this end, the article first defines jurisdiction in international human rights law and title to territory. Jurisdiction is best understood as a threshold criterion that triggers human rights obligations of states towards particular individuals. Title to territory, on the other hand, is a set of claims to territory designed to uphold minimal stability. The article then introduces three models – the approximation model, the differentiation model, and the separation model – of the relationship between title to territory and jurisdiction in international human rights law and evaluates them in light of their fit with the relational nature of human rights. The result is that the approximation and differentiation models – that is, those that maintain title's influence on the interpretation of jurisdiction in various degrees – fail the success criterion, while the separation model satisfies it.