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Home Articles posted by Kushtrim Istrefi

R.M.T. v. The UK: Expanding Article 11 of the ECHR Through Systemic Integration

Published on May 12, 2014        Author: 

Court building exterior - autumn Medium PortraitOn 8 April 2014, the ECtHR rendered a decision in the RMT v. the UK. The case represents an example of using systemic integration as a tool of judicial activism. In applying Article 31(3)(c) VCLT, the Court expanded rights under Article 11(1) ECHR through international instruments that were not binding on all parties to the Convention. This approach adds to the perplexity of the effects of the principle of systemic integration.

In the RMT case, the ECtHR responded to the novel question of whether secondary action—or the so-called sympathy strike that is performed by a trade union in support of the cause of another group of strikers involved in a dispute—comes within the scope of Article 11(1) of the Convention. The Court ruled in the affirmative by relying exclusively on international instruments that recognize secondary action as part of trade union freedom. Although the Court considered that a different outcome could have been reached if one read the wording of Article 11(1) on its own (para 76), it deemed that

the Convention cannot be interpreted in a vacuum but must be interpreted in harmony with… any relevant rules of international law applicable in relations between the parties, and in particular the rules concerning the international protection of human rights.

Referring to Article 31(3)(c) VCLT, the Court utilized the International Labour Organization (ILO) Convention No. 87 and the European Social Charter (ESC) to conclude that secondary action formed part of Article 11(1) of the Convention. The Court viewed that such reception of international law was in line with the Demir and Baykara judgment, which read in the relevant part as follows:

[t]he Court, in defining the meaning of terms and notions in the text of the Convention, can and must take into account elements of international law other than the Convention, the interpretation of such elements by competent organs, and the practice of European States reflecting their common values.

Against that background, the Court continued, Read the rest of this entry…

 

Azemi v. Serbia in the European Court of Human Rights: (Dis)continuity of Serbia’s De Jure Jurisdiction over Kosovo

Published on March 13, 2014        Author: 

Following the 2008 Kosovo Declaration of Independence and the change in public powers in Kosovo, Azemi v. Serbia was the first decision in which the ECtHR examined whether Serbia continued to have jurisdiction in Kosovo. The applicant, Ali Azemi, a national of Kosovo, alleged that Serbia had violated his rights under Article 6 (1) of the Convention by failing to enforce a decision rendered by a court in Kosovo in 2002. The applicant argued that Serbia bore responsibility for the enforcement of the Convention rights throughout its territory, including Kosovo.

On November 5, 2013, the ECtHR found that Serbia could not be held responsible under Article 1 of the Convention for the non-enforcement of a decision of a Kosovo court. The Court had previously sustained the presumption of Serbia’s de jure jurisdiction in Kosovo. However, in the Azemi case in examining the period after the Declaration of Independence it departed from that view by way of establishing the presumption of neutrality with regard to Kosovo.

Read the rest of this entry…