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The chapter introduces the doctrinal data analysis to explore the compatibility of the ECHR with the specific risk principle of the environmental minimum. The specific risk principle is the trigger of the environmental minimum framework, determining whether the minimum standards of review apply to a given environmental harm. The principle requires that an environmental harm is successfully linked to a threat to a specific human right recognised under the invoked protection regime. Compatibility with the ECHR can be determined through the extent the doctrine of the Court subscribes to two key claims: (1) in principle, any environmental harm can give rise to infringements of Convention rights; and (2) environmental harm has been successfully linked to the Convention rights and led to findings of violations in the past. The chapter concludes that, notwithstanding some inconsistencies in earlier cases, the prevailing ECHR doctrine is compatible with the environmental minimum to a significant extent.
The chapter explores the ECHR approach to the minimum standards of the environmental minimum. These standards apply once a specific risk has been established and are derived either from domestic and international legal norms, or in lieu of these, established and emerging scientific evidence. Notably, unclear or contradictory scientific evidence grants states a wide margin of appreciation in formulating a regulatory response. Should a violation of minimum standards be established, individuals have a claim based on the right invoked at the specific risk stage. The question for the ECHR case law is whether it requires the enforcement of legal norms, and mandates subsidiary recourse to established and emerging scientific evidence in their absence. The ECHR generally meets these requirements: a clear majority of cases where domestic environmental regulations were ignored by authorities also resulted in a violation of the ECHR. However, the chapter acknowledges some enduring concerns, notably the failure of the Court to invariabley find violations where states fail to consistently enforce domestic law and its deferential approach in some cases where a state had no legal norms to enforce.
The chapter investigates the claim of the environmental minimum that environmental interests must be balanced with competing considerations, and that neither can be presumed to have priority in the abstract. This becomes particularly relevant when considering cases where states justify infringements of human rights by invoking their duty to prevent environmental harms. Not every conceivable measure in furtherance of environmental protection is porportionate in light of its impact on other rights. The question specifically for the ECHR case law is whether justificaitons for environmental regulations challenged by applicants are balanced with and can be outweighed by competing interests. In principle, the ECtHR accepts that environmental regulations can give rise to infringements of Convention rights and acknowledges that regulations must be proportional to the established threat of environmental harm. The chapter then turns to discusses an enduring area of concern, namely the acceptance of vague economic justifications for environmental harm and the unprincipled application of the margin of appreciation doctrine.
The chapter examines the crucial question whether the ECtHR recognizes that a reasonable hypothesis of harm is sufficient to establish the link between environmental harm and a specific risk to a Convention right required under the specific risk principle. The crucial ECHR rules on this point relate to evidence and the requirements for victim status under Article 34 ECHR. The chapter first sets out the general principles developed with respect to the rules of evidence and victim status before exploring some encouraging developments in more recent cases under Articles 2 and 8 ECHR. The chapter recognises the difficulties and limitations that arise for applicants who seek to obtain relevant evidence and records from reluctant states. Nonetheless, the ECHR case law generally comports well with the requirements of the environmental minimum. The ECtHR does not require applicants to demonstrate an irrefutable scientific link between the environmental harm and an impact on their rights: in many recent decisions the ECtHR is content with evidence of a general population level risk arising from the environmental harm expierienced by the applicant.
Pervasive environmental harm that disproportionately impacts vulnerable members of society is left largely unregulated across the globe despite existing legal commitments to human rights and environmental protection in many states. To address this shortcoming, Stefan Theil proposes a new normative framework for environmental protection through human rights law. In clear and accessible prose, he demonstrates how such a human rights-based approach can strengthen environmental protection without requiring radical departures from established protection regimes and legal principles. The environmental minimum developed in the book translates the general and abstract commitments of states into specific and practical measures that protect the environment. The framework develops the doctrine of international, regional, and domestic courts, analysed through an innovative approach that improves contextual awareness. This book is thus a valuable resource for lawyers, social scientists, political theorists, environmental and human rights advocates.
During the 20th century, society’s view on sexualities has undergone a severe paradigm shift. While moving away from ideas of decency and bawdiness to evaluate legitimate sexuality, concepts of autonomy and consent gained importance. This transformation is also challenging the law.1 With the broad acceptance of various forms of sexual behavior and sexual orientation, legal regulation based on morality and ethics is outdated. Recent debates on law and sexualities focus on sexual autonomy and its conditions. This is shown especially by the legal debate on sexual violence and criminal law.2 But the right to sexual autonomy does not only require adequate protection against sexual violence. As a human right, it obliges State Parties to Human Rights Treaties such as the European Convention on Human Rights and the Convention on the Elimination of Discrimination against Women to respect, protect, and fulfill sexual autonomy. This includes the guarantee of freedom from sexual violence, coercion and discrimination, as well as control over one’s own body and over the involvement in sexual interactions with others. In order to ensure the different components of sexual autonomy, sexual education and reliable access to information and medical services are necessary. This paper presents an approach concerning the multifaceted dimensions of sexual autonomy through a human rights lens.
The principle of ne bis in idem is a fundamental right that bars the possibility of a defendant being prosecuted more than once on the basis of the same offence, act or facts. In view of the significance of the ne bis in idem principle for the AFSJ, this chapter offers an account of the sources and elements of that principle. The ne bis in idem principle in the AFSJ has seen spectacular developments over the past two decades. The Van Esbroeck/Zolotukhin line of case law represents a prime example of fruitful substantive judicial dialectics between the two European courts. The case law on the application of the principle to the interaction between administrative, criminal and tax law raises questions, however. The problem encountered here is perhaps not so much one of ne bis in idem, but of the fundamental relationship between criminal and (punitive) administrative law. The developments in the case law suggest that we may not find a clear answer to the question of how the ne bis in idem principle should be applied in the relation between criminal, administrative and tax law until we have a sufficiently clear notion of the precise nature of that relationship.
The coexistence of several layers of fundamental rights with different goals, plus procedures for protecting fundamental rights in the courts that differ in scope, makes for a particularly complex situation. That situation is even more complicated in the Area of Freedom, Security and Justice, since it raises particularly sensitive issues for fundamental rights. Furthermore, the mutual recognition principle implies that decisions taken in one Member State are recognised and executed in any other Member State based on the presumption that all Members States have a sufficient level of fundamental rights protection. Hence, it is of paramount importance to ascertain whether sufficient protection of fundamental rights is guaranteed in the AFSJ, what are its core elements and what are the problems related to its operation in practice. Within that framework, this chapter discusses whether the CJEU is building a European standard of fundamental rights in the AFSJ. To that end, it examines, first, how the CJEU is relying on general principles and secondary law to strengthen the standard of fundamental rights, and second, how that standard is adapted to horizontal cooperation in a scenario of mutual trust.
The European Court of Human Rights (the Court) has been invoking the vulnerability criterion to overcome the drawbacks of cases concerning Article 14 of the European Convention on Human Rights, the prohibition of discrimination. This new criterion, allowing the Court to favour the applicants, highlights the applicants’ group affiliation. However, whether this criterion is effective in protecting vulnerable applicants against discrimination is doubtful. To examine this, I divide the Court's approach to Article 14 before and after the application of the vulnerability criterion. I argue that vulnerability criterion was used to fix the drawbacks of Article 14, but eventually backfired. The concept of vulnerability has been ambiguous, inconsistently used by the Court, and paternalistic. I suggest the Court focus on individual autonomy rather than grouping the applicants to improve their legal reasoning of Article 14.
The judgment of the European Court of Human Rights (ECtHR or Court) in Makuchyan and Minasyan v. Azerbaijan and Hungary is remarkable both on account of its facts and the peculiar legal issues it raised. In 2004, an ax-wielding Azerbaijani army officer (R.S.) beheaded one Armenian officer, and attempted to kill another, while attending a NATO-organized English language course in Budapest, Hungary. R.S. was prosecuted in Hungary and given a life sentence. Eight years later, R.S. was transferred to Azerbaijan to serve the remainder of his sentence. However, upon his arrival, R.S. received a hero's welcome. He was released, pardoned, promoted, and awarded salary arrears for the period spent in prison, as well as the use of a state apartment in the capital. Many high-ranking Azerbaijani officials expressed their approval of R.S.'s conduct and pardon. (The long-standing Nagorno-Karabakh conflict between Armenia and Azerbaijan of course looms in the background of this story.)
This chapter explains the evolving relationships between the UK and key European institutions - the European Union and the European Convention on Human Rights. It explains how the ECHR has redesigned its institutions to take account of the growth in case law and also to take account of concerns as to the right balance between providing a uniform protection of human rights across Europe and recognising cultural differences through developing a protocol on subsidiarity. It provides an account of the UK's membership of the EU, placing this in the context of the impact on the membership of the EU on the UK constitution. Moreover, it explains the path to Brexit, and provides an up-to-date account of legislation designed to implement Brexit and their constitutional consequences.
The last couple of years have witnessed an unprecedented battle within Europe between values and pragmatism, and between states' interests and individuals' rights. This book examines humanitarian considerations and immigration control from two perspectives; one broader and more philosophical, the other more practical. The impetus to show compassion for certain categories of persons with vulnerabilities can depend on religious, philosophical and political thought. Manifestation of this compassion can vary from the notion of a charitable act to aid 'the wretched' in their home country, to humanitarian assistance for the 'distant needy' in foreign lands and, finally, to immigration policies deciding who to admit or expel from the country. The domestic practice of humanitarian protection has increasingly drawn in transnational law through the expansion of the EU acquis on asylum, and the interpretation of the European Court of Human Rights.
This short comment offers two additional arguments, missing from Geir Ulfstein’s account, which may bolster the case for constitutionalisation of the ECtHR. The first is about the ‘pilot judgments’ through which the Court addresses systemic deficits in national legal systems and thus ensures a minimal synchronisation of human rights protection throughout the CoE system. The second manifestation of constitutionalisation of the ECHR system is the increasing role of the ECtHR in the implementation of its own judgments. Ultimately, the legitimacy for the constitutional ambitions of Strasbourg Court should be located primarily in the argumentative resources of the court and in its pursuit of ‘public reason’.
The struggle within tsarist Russia culminating in the revolution of 1917 was a legal and political event of global significance. The establishment of the Soviet state and its deployment in service of a programme of socialist transformation represented a foundational challenge to prevailing forms of political organisation.2 Rhetorically, if not always in practice, the socialist Soviet state condemned the capitalist economic system and its political encasing, liberalism, as well as the violent imperialism which it saw as an inevitable expression of that system.3 In seeking both to consolidate and internationalise its own state form,4 through communist politics as well as through force both at home and abroad, the revolutionary state challenged liberal conceptions of civil and political freedoms and attracted condemnation in turn.
The Court of Justice of the European Union (ECJ) in 2014 ruled in Digital Rights Ireland that the Data Retention Directive was invalid for exceeding the limits of proportionality in light of Articles 7, 8 and 52(1) of the EU Charter of Fundamental Rights (Charter). Subsequently, preliminary references from the England and Wales Court of Appeal and the Swedish Administrative Court of Appeal sought clarification from the ECJ as to whether EU law permitted a general obligation to retain traffic data covering all persons, all means of electronic communication and all traffic data without any distinctions, limitations or exceptions for the purpose of combating crime. The ECJ in Tele2 and Watson ruled that in light of Articles 7, 8, 11 and 52(1) of the Charter, EU Member States were precluded from adopting national measures which provided general and indiscriminate retention of traffic and location data of all subscribers and registered users relating to all means of electronic communication. The ECJ also ruled that Member States were only permitted to adopt data retention measures for the purpose of fighting serious crime, and only when access to retained data was subject to prior review by a court or an independent administrative body.
In 2018, the issue of the UK's data retention regime envisaged in Part 4 of the Investigatory Powers Act 2016 came before the England and Wales High Court. The High Court ruled that Part 4 was incompatible with EU law because access to retained communications data was not limited to the purpose of fighting serious crime, and it was not subject to prior review by a court or an independent administrative body. This judgment was regarded by the claimants, Liberty, as a ‘landmark victory for privacy rights’. However, this paper questions whether certain aspects of the High Court ruling are indeed a victory, by assessing its compatibility with EU law and the European Convention on Human Rights (ECHR).
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.