The European and Inter-American human rights courts are increasingly moving beyond their original mandates and making determinations about the design of national courts. They have judicialized new areas of the law, empowered national courts over other branches of government, and encouraged changes in judicial administration. By empowering domestic judiciaries, these regional human rights courts have also (intentionally or not) empowered themselves. ; The European and Inter-American human rights courts are increasingly moving beyond their original mandates and making determinations about the design of national courts. They have judicialized new areas of the law, empowered national courts over other branches of government, and encouraged changes in judicial administration. By empowering domestic judiciaries, these regional human rights courts have also (intentionally or not) empowered themselves.
Abstract Critics challenge international courts for their interference with domestic democratic processes and alleged violations of rule of law standards: they claim that these guardians of the rule of law are not well guarded themselves. These concerns should not be dismissed too quickly as mere disgruntled venting by populist politicians. This article focuses on regional human rights courts and argues that the same interests and values that justify rule of law standards of impartiality, independence and accountability domestically also justify similar standards for international courts. Focusing on the European Court of Human Rights and its doctrine of the margin of appreciation, the article demonstrates how this doctrine may contribute to fulfilling the rule of law but at the same time may also endanger it. This requires changes to the doctrine to ensure that the core rule of law standards of predictability and protection against arbitrary discretion are respected.
The article sums up the state of international human rights law as concerns the issue of responsibility for human rights violations allegedly carried out by private persons and entities. It employs four main legal concepts: imputability of private actions to a State, positive obligations of States, duties of private persons and entities, and 'horizontal' effect of human rights. The attempt is made to see how these concepts appear in the case-law of international monitoring bodies and regional courts. The article also attempts to indicate pending questions as concerns the responsibility of private persons and entities for human rights violations and to introduce possible approaches that an international or regional judicial or legislative process could undertake to remedy the gaps, in particular in the narrower context of private military companies. One of the obvious conclusions that emerges from the study is that international actors have preferred the development of the scope of positive obligations that States ought to undertake within various human rights treaties. It is through these obligations that international human rights standards have come to circumscribe private actions. The scope of positive obligations for States typically involve the following measures: adoption of appropriate legislation, provision of judicial remedies and compensation where appropriate. It can be said that the existing legal framework contains most if not all the necessary elements to hold such legal entities as private military or security contractors accountable for human rights violations. The question lies more with the courage to use them to ensure respect for human rights. ; The 'Regulating Privatisation of "War": The Role of the EU in Assuring the Compliance with International Humanitarian Law and Human Rights" (PRIV-WAR) project is funded by the European Community's 7th Framework Programme under grant agreement no. 217405.
This article examines treaty interpretation based on consensus, or the idea that legal or political practice that is not directly related to a treaty can be used in interpreting it, or at least in granting more discretion to States Parties. The practice of the Inter-American Court of Human Rights, contrasted with the well-settled practice of the European Court of Human Rights, reveals that consensus interpretation plays an important role in entrenching the legitimacy of international human rights courts. The Inter-American Court's practice seems to rely on consensus when it supports a progressive, teleological interpretation of human rights. The article argues that this selective engagement eliminates the legitimacy-building possibilities of the consensus method of interpretation, but that the Inter-American Court, in seeking legitimacy not from States Parties, but other stakeholders, does not seem particularly concerned with legitimacy costs (even if it probably should). ; Not peer reviewed
To what extent should domestic courts apply international law – specifically the international law of human rights? I would like to examine this question with reference to two very different states: the Union of Soviet Socialist Republics and the United States. For quite distinct reasons, neither of the two has yet fully embraced the idea of direct application in national tribunals of the body of international law that regulates the relationship between human beings and their own governments. As the post-Cold War era unfolds, it is time to ask whether either or both of these erstwhile adversaries might finally be ready for full-fledged implementation of international human rights law in national courts. The Soviet Union is going through such profound political and constitutional change that specific comments run the risk of obsolescence or irrelevancy. In early 1991, when this Essay was in preparation, the breakup of the Union came to seem inevitable, but what will emerge cannot yet be foreseen. Retrogressive developments have cast doubt on the prospects for advancing the rule of law under the current Soviet leadership. Nonetheless, I believe that the issue of domestic application of international human rights law will survive the current tumultuous period and will figure in the disposition of transcendent constitutional issues.
International Human Rights Courts (IHRCts), such as the European Court of Human Rights (ECtHR), have come under increasing criticism as being incompatible with domestic judicial and legislative mechanisms for upholding rights. These domestic instruments are said to possess greater democratic legitimacy than international instruments do or could do. Within the UK this critique has led some prominent judges and politicians to propose withdrawing from the European Convention on Human Rights (ECHR). Legal cosmopolitans respond by denying the validity of this democratic critique. By contrast this article argues that such criticisms are defensible from a political constitutionalist perspective but that International Human Rights Conventions (IHRCs) can nevertheless be understood in ways that meet them. To do so, IHRC must be conceived as legislated for and controlled by an international association of democratic states, which authorizes IHRCts and holds them accountable, limiting them to 'weak review'. The resulting model of IHRC is that of a 'two level' political constitution. The ECHR is shown to largely accord with this model, which is argued to be both more plausible and desirable than a legal cosmopolitan model that sidelines democracy and advocates 'strong' review.
There is empirical evidence that corporations, often in collusion with states, are complicit in, if not instigators of, a variety of human rights violations. Despite this evidence, the international community of states has been unwilling or unable to respond to these violations in any adequate measure. At the same time, the discourse of human rights has become integral to state legitimacy in a post-Cold War society. An analysis of the legal structure of the corporation and its omnipresence in the global political economy raises questions about the overarching framework of an international human rights law that protects corporations in analogous ways to physical persons. The extension of rights to corporations reveals a human rights paradigm that holds private property and capitalist accumulation at the core of its value system. This thesis scrutinises the association between human rights and corporations and raises questions about whether human rights law can be used to challenge corporate power. The thesis is an empirically based inquiry into the perspectives of judges from the European and Inter-American Courts of Human Rights on the potential for human rights law to respond to corporate harms. The thesis seeks to examine the role that human rights courts play in using existing mechanisms of human rights law in cases involving corporate violations. The data was gathered from a detailed analysis of case law from these regional human rights systems, as well as fifteen interviews with judges from the European and Inter-American Courts of Human Rights. The analysis reveals that the open-texture of the law and the use of international human rights courts in counter-hegemonic struggles is a strong indication of the possibility for alternative uses of human rights law. These alternative uses of law are illustrative of the potential to challenge the relative impunity afforded to corporations from within the very system that has been developed to protect them.
The article analyzes the role of different international organizations and the European Court of Human Rights (ECHR) in the field of international protection of children's rights. The main idea of the article is to determine modern methods and mechanisms of protection and realization of children's rights in international law. Much attention is given to the fact that there are a lot of different international documents that regulate this issue. The author analyzed such documents are Convention on the Rights of the Child, the Declaration of the Rights of the Child and expressed her opinion on their effectiveness. It is described in short the protection of children's rights at the regional level. The article outlines the opinions and views of various scholars who had been working in the field of child rights protection. The article admonishes that everybody has the right to apply to the European Court of Human Rights in case of violation and non-recognition of rights. The article states that numerous ECHR decisions exist on issues related to the protection of the rights of the child based on the provisions of international law. The article defines some problematic aspects of the protection of children's rights. Some attention is drawn to the collisions of the legal regulation of this issue and cases of violation of the rights of the child. Theoretical concepts and practical experience regarding the international protection of the rights of the child in international law are explored in the article. The author mentions that the national legislation of some countries in the sphere of children's rights is not perfect enough. Therefore international standards have to serve as a basis on which it would be possible to construct and develop a domestic law system that will respect children's rights. It is stressed that in the modern world exists a tendency for recognition of almost all rights and interests of the child. It is reported that new mechanisms for the protection of children's rights are developing because ...
This article researches the basis of the concept of reproductive rights in the case law of the European Court of Human Rights (ECtHR). After a systematic and transversal presentation the ECtHR's jurisprudence on reproductive issues, the article argues that the ECtHR does not capture the specificity of reproductive rights, especially the gender perspective and the importance of reproductive health. Faced with arguments of prioritization of certain rights, the ECtHR repeatedly applies the European Convention on Human Rights to domestic rights as if they were neutral and often avoids addressing claims related to discrimination. Besides, while reproductive health is at the core of reproductive rights, the ECtHR's case law shows self-restraint unless there is a very serious threat on the women's health. This contrasts with international standards on the right to health. Without considering those essentialist and realistic characteristics of reproductive issues, the ECtHR fails to develop a European concept of reproductive rights. The last parts of the article present the political constraints that plague on the ECtHR, which may explain the minimalist jurisprudence in this area. However, those constraints do not justify all the inconsistencies in the ECtHR's use of the European consensus and the margin of appreciation doctrine in the field of reproductive rights.
The idea of the World Court of Human Rights was first envisioned in 1947 along with other institutions designed to create a system capable of the worldwide protection of individual human rights. The focus of the present study is to determine key issues of the prospective establishment of the World Court by an examination of its theoretical position among the United Nations bodies, regional and another inter-governmental human rights organisation. Analysis of the function and mechanisms of the current international human rights protection system would lead to deliberation on the prospective substantial and procedural competences of the World Court, the enforcement mechanism, jurisdiction and related benefits. The objective of the final part is to discuss challenges regarding its political and legal feasibility. Without the visionaries of the past, there would be no substantial system of human rights today. The World Court of Human Rights is a vision for the future.
Bu yüksek lisans tezi, uluslararası insan hakları hukuku alanında yeni bir alan araştırmasını sunmaktadır - temiz ve sağlıklı bir çevre hakkı. Uluslararası hukuk çerçevesinde, çevre kanunu - hakların genç bir dalı olarak - yakın zamanda insanlığın karşı karşıya olduğu iklim ve diğer çevre sorunları nedeniyle uluslararası toplumdan büyük ilgi görmüştür. Avrupa İnsan Hakları Mahkemesinin uygulamasında gelişen Avrupa kıtasal hukuk sisteminin insan hakları sistemi, temiz ve sağlıklı bir çevreye açık bir hak olduğunu hala bilmemektedir. Temiz ve sağlıklı birçevreye ilişkin bazı hakların ihlaline ilişkin davalar, Avrupa Mahkemesinde Avrupa Sözleşmesinde açıkça tanınan diğer haklar dahilinde incelenir. Ayrıca, Avrupa Birliği, Avrupa'daki bir suigeneris örgütü olarak, temiz ve sağlıklı bir çevreye açık bir hak olduğunu da kabul etmemektedir. Uygulamada, Avrupa Adalet Divanı temel olarak Üye Devletlerin çevre koruma alanındaki yükümlülüklerini geliştirmektedir. Bu yüksek lisans tezinin amacı, bumahkemenin çevre hukuku ve insan hakları arasında nasıl bir bağ oluşturduğunu göstermek için Avrupa Ġnsan Hakları Mahkemesi'nin içtihadını incelemektir. Temiz ve sağlıklı çevre hakkının dolaylı olarak korunmasıyla, bu Mahkeme çevre hukuku ve insan haklarına yeni bir yaklaşım getirmektedir. Buna ek olarak, yüksek lisans tezi, Avrupa Adalet Divanı'nın uygulamasını inceler ve Avrupa Birliği'nin çevre sorunlarına nasıl yaklaştığını analiz etmeyi amaçlar. Buna göre, bu makalenin ana hipotezi, temiz ve sağlıklı bir çevre hukuku sahip olmanın temel bir insan hakkı olarak tanınması ve Avrupa Konvansiyonu tarafından açıkça korunmasının sağlanmasıdır. Ayrıca, yüksek lisans tezinin bir bölümü, insan haklarının korunması ve tek tek ülkelerin anayasaları için karşılaştırmalı sistemlerde temiz ve sağlıklı bir çevre hakkının araştırılmasına ayrılmıştır. Bu araştırmanın amacı uluslararası toplumun insan hakları olarak temiz ve sağlıklı bir çevreyi koruma çabalarını göstermektir. --- This master's thesis presents the research of a new field in international human rights law - the right to a clean and healthy environment. Within the framework of international law, environmental law - as relatively young branch of rights - has recently attracted great attention from the international community due to climate and other environmental problems facing mankind. The human rights system of the European continental legal system, which evolves in the jurisprudence of the European Court of Human Rights, still does not recognize the explicit right to a clean and healthy environment. Cases concerning violation of some aspects of the right to a clean and healthy environment are examined by the European Court within other expressly recognized rights in the European Convention. Furthermore, the European Union, as a sui generis organization in Europe, also does not recognize the explicit right to a clean and healthy environment. In its practice, the European Court of Justice mainly develops obligations of Member States in field of environmental protection. The aim of this master's thesis is to examinethe jurisprudence of the European Court of Human Rights in order to illustrate how this court creates a link between environmental law and human rights. By the indirect protection of the right to clean and healthy environemnt, this Court makes a new approach to environmental law and human rights. In addition, the master's thesis explores the jurisprudence of the European Court of Justice and aims to analyze how the European Union approaches environmental issues. Accordingly, the main hypothesis of this paper is that the right to a clean and healthy environment should be recognized as a fundamental human right and explicitly protected by the European Convention. Additionally, one part of the master's thesis is devoted to the research of the right to a clean and healthy environment in comparative systems for the protection of human rights and the constitutions of individual countries. The goal of this research is to illustrate the efforts of the international community to protect the right to a clean and healthy environment as human right.
The European Court of Human Rights (ECHR) in its recent decisions regarding the Cyprus problem such as the Loizidou v. Turkey and Case of Cyprus v. Turkey finds Turkey responsible for the current situation in the Island. According to the Court, Turkey violates the rights of the Greek Cypriots were living in the northern part of Cyprus before the military intervention of Turkey took place in 1974. Such violations include inhuman treatment of the families of missing Greek Cypriots, denying some 180.000 Greek Cypriots the right to return to their homes, failure to compensate for loss of property and interference with freedom of religion. Finding Turkey responsible instead of the Turkish Republic of Northern Cyprus (TRNC) is based upon the fact that the TRNC was not an independent State and not even recognised by the international community. This way of application of the rules of international law by the ECHR can be strongly criticised on the ground that it does not give any weight to the causes and effects of the events which took place in Cyprus in 1963 to 1974, and also to the factors which lead the Turkish Cypriots to establish their own independent States. When the recent history of Cyprus is examined it can clearly be seen that the legal status of the TRNC is not any less legal than its Greek Cypriot counterpart with regard to its statehood and recognition in international law. This paper examines the judgements of the ECHR in the light of the historical background of the Cyprus problem, and of the legal status of the TRNC in relation to its statehood and its non-recognition in international law.
The European Court of Human Rights (ECtHR or, the Court) is a formidable player in the development of legal approaches to Islam: its jurisdictional remit (covering over 800 million people across 47 countries) is vast; it is a standard setter for human rights protection in general on a global scale; and it has a rapidly growing body of case law relevant to Islam which has influenced states' engagements with Islam within Europe and beyond. Besides the Court's 'direct effects', in terms of impact on relevant legislation, through its decisions to do with Islam, it also has a significant 'indirect', social effect though the messages those decisions communicate about Islam and its place in society. This contribution examines the role of the Court in its direct and indirect effects on Islam, law and Europeanisation.
The law on human rights court has brought the new hopes for certain people have suffered because of the human rights violation happened in the past government (before the law enacted in the years of 2000). The demand of justice has been made by victims, the families of victims and other sympathetic parties by bringing those who have violated human rights in the past. The demand for justice does not only focus on human rights violations, which occurred in the past but also similar human rights violations that will occur in the future. The existence of a permanent Human Rights Court seems to imply that human rights will be upheld and protected. The resolution of past human rights violations via a conflict approach is preferable for the national reconciliation. The resolution of past human rights violations through extra-judicial organizations is an advanced step towards resolving the case, whereas a conflict approach can be used to settle the case. The existence of the Human Rights Law provides a new frontier in implementing the principle of restorative justice in the approach of case settlement. It is hoped that such restorative justice can create a political balance between the past and the future.
The subject of the study is the changes taking place in the legislation on property protection in Eastern European states due to the influence of pilot judgments. Special attention is paid to the relevant principles of property rights established by the case-law of the ECtHR