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Home International Tribunals Archive for category "European Court of Human Rights"

Living Instruments, Judicial Impotence, and the Trajectories of Gay Rights in Europe and in the United States

Published on July 23, 2015        Author: 

Evolutionary or dynamic interpretation is one of those perennial ‘big’ topics, which we e.g. recently dealt with in our book discussion on Eirik Bjorge’s recent work on the topic. Judicial pronouncements on LGBT rights are an excellent example of this phenomenon (for some of my earlier thoughts on this, see here). In particular, on 26 June the US Supreme Court rendered its blockbuster ruling in Obergefell v. Hodges, in which it held (per Justice Kennedy, and by 5 votes to 4) that the US Constitution requires full marriage equality between same-sex and different-sex couples. On reading this judgment, as well as some of the recent cases on similar questions before the European Court of Human Rights, I was struck by several points on the practical realities of dynamic interpretation that I’d like to raise in this post.

First, it really is striking that despite the many differences in the text of the relevant instruments, their history, the institutional make-up or legal culture generally, US and European courts both look at gay rights generally (or the issue of gay marriage specifically) through the same analytical lenses: on the one hand there’s private life, family life or individual liberty (or in US parlance substantive due process under the Fourteenth Amendment to the US Constitution); on the other hand, there’s equality or non-discrimination. And while there are many differences in the concrete legal tests being applied (e.g. proportionality in Europe, tiered levels of scrutiny in the US), there are many conceptual similarities as well.

Second, in both Europe and in the US most gay rights cases, whether under privacy/liberty or under equality, boil down to one basic, fundamental problem: if a right or legitimate interest is interfered with or restricted by the state (e.g. gays are denied the right to marry), what is the justification offered by the state for that restriction, and how then should a court assess that justification. In particular, can such a restriction ever be justified by reference to public morals, or tradition, or disapproval of a particular group or behaviour alone, absent any objectively identifiable, concrete individual or societal harm. One reason why Obergefell came out the way it did was that the opponents of gay marriage were simply unable to articulate any concrete harm to anyone; each argument they tried to make of that type was easily disprovable (e.g. if marriage is inextricably tied to procreation, why then do we allow infertile couples to get married, etc. – for an example of pretty brutal judicial questioning along these lines, one need only listen to this oral argument before Judge Richard Posner, and read this judgment.)

In other words, the big question is whether it would ever be legitimate to restrict marriage to opposite-sex couples simply because ‘we’ (say the majority in a popularly elected parliament) believe that same-sex couples are icky and yucky. Is a feeling or sentiment of yuckiness (or sinfulness, turpitude, taboo, whatever) enough to deny people legal rights? Many lawyers would stop here and simply say that such irrational considerations cannot form the basis for running a legal system. But wait – in the European Convention (unlike in the US Bill of Rights) we actually have explicit references to the protection of morals in the limitation clauses of several articles, including Article 8. And in fact the Court has said, for example, that it’s fine to keep a person in prison simply because that person chooses to walk in public without wearing any clothes, even though he causes no concrete harm to others in so doing – remember that naked rambler dude? He’s still naked, and still in prison (9 years on! – see here and here for very recent developments). And if yuckiness alone does not suffice, what then of polygamy or consensual adult incest and the like (and we do have cases like that), or some other parade of horribles?

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Russian Constitutional Court Affirms Russian Constitution’s Supremacy over ECtHR Decisions

Published on July 15, 2015        Author: 

On 1 July 2015 a group of Russian MPs requested the Russian Constitutional Court (RCC) to check the constitutionality of the Federal Law ‘On ratification of ECHR’, the Federal Law ‘On international treaties’, and a number of procedural norms. According to the applicants,

‘participation in international cooperation should not lead to a breach of human rights or contradict the fundamental principles of the constitutional system. In their view, the contested rules oblige the courts and other state bodies to implement unconditionally ECtHR decisions, even if they contradicted the Russian Constitution. As a result … the person who applies the law is put in an impossible situation, because such a conflict might be insoluble.’

Although the RCC held that the contested norms do not conflict with the Constitution, thus leaving the de jure legal status of the Convention intact, this ruling and its high publicity in Russian media clearly signifies a change in the political attitude towards the implementation of decisions of the European Court.

Position of the Constitutional Court

The Court confirmed that the contested norms do not contradict the Constitution. Thus, the Convention remains part of Russian legal system, according to Article 15 (part 4) of the Constitution. However, the Court reasoned that

‘the participation of the Russian Federation in any international treaty does not mean giving up national sovereignty. Neither the ECHR, nor the legal positions of the ECtHR based on it, can cancel the priority of the Constitution. Their practical implementation in the Russian legal system is only possible through recognition of the supremacy of the Constitution’s legal force.’

There is no revolution in admitting that ‘both the Constitution and the European Convention are based on shared basic values’ and that ‘in the vast majority of cases no conflict between the two documents can appear at all.’ There have hardly been any conflicts since 1998, when Russia ratified the Convention. However, when it comes to interpretation, apparently the position can differ. Read the rest of this entry…

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Thawing the Frozen Conflict? The European Court’s Nagorno-Karabakh Judgments

Published on July 6, 2015        Author: 

Last September, Erik Fribergh, the Registrar of the European Court of Human Rights, told Government representatives on the Steering Committee for Human Rights (CDDH) that ‘the Court is … not equipped to deal with large scale abuses of human rights. It cannot settle war-like conflicts between States.’ Yet, as Fribergh noted, the Court is increasingly being called on to adjudicate on such situations. Through the two Grand Chamber judgments delivered on 16 June (Sargsyan v Azerbaijan and Chiragov v Armenia) has the European Court entered into the terrain of international conflict resolution?

Both judgments upheld the European Convention rights of families displaced by the Nagorno-Karabakh conflict in the early 1990s, a conflict that created hundreds of thousands of refugees and internally-displaced persons (IDPs) on both sides, and which has remained unresolved in the ensuing decades. Peace negotiations have been held under the auspices of the OSCE ‘Minsk Group’ (co-chaired by France, Russia and the United States), but as the judgments make clear, settlement negotiations have repeatedly failed, due to the uncompromising attitudes of both Governments. The cases are legally important, given the Court’s position on the jurisdictional reach of the Convention, which Marko Milanovic has previously discussed here. They are politically significant too – in emphasising the importance of the two states establishing a property claims mechanism, and giving the parties to the cases 12 months to come back with proposals on redress, the Court has arguably given significant fresh impetus to the resolution of the ‘frozen conflict’.

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The Legitimate Requirements of Justice

Published on June 30, 2015        Author: 

As readers have pointed out, the Grand Chamber in Lambert has now rectified its error, by amending paragraph 138 so that it now says in respect of Glass that: ‘in its judgment of 9 March 2004 it held that there had been a violation of Article 8 of the Convention’. The excellent blog post by Grégor Puppinck on Lambert nonetheless raises the broader question of the inherent power of international courts and tribunals to reopen their judgments.

All international courts and tribunals have the inherent power, in certain circumstances, to reopen their judgments. It has always been recognized that, as the report of the Advisory Committee of Jurists drafting the Statute of the Permanent Court of Justice, put the matter, although the principle of res judicata is underpinned by the fundamental value that ‘for the sake of international peace [a matter decided] should be considered as finally settled’, ‘[j]ustice, however, has certain legitimate requirements’ (Procès-Verbaux of the Proceedings of the Committee (Van Langenhuysen Brothers 1920) 744).

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The ECHR Made a Legal Error in the Lambert Case

Published on June 29, 2015        Author: 

Man’s justice is not perfect, not even that of the European Court of Human Rights (ECHR). In a striking turn of events, it appears that the Court made a manifest legal error in the well known Lambert judgment (Lambert and others v. France, n°46043/14, Grand Chamber, 5 June 2014) by wrongly referring to its own case-law. In the Lambert case, that Court ruled that the French authorities could stop the artificial hydration and nutrition of Mr Lambert.

Glass v. United Kingdom judgment (n° 61827/00, Fourth Section, 9 March 2004) is one of the most important decisions the Court refers to in Lambert to support its decision. Indeed, the Court quotes Glass five times. In Glass, similarly to in Lambert, the mother of a child hospitalized for respiratory disorders complained about the the medical team’s decision to administer to her minor son, against her will, a high dose of morphine that risked causing his death. The doctors elected to not resuscitate him in the event of a respiratory crisis. Wishing to defend her son’s life, the patient’s mother brought her case to the ECtHR, as in the Lambert case.

In Glass, the Court ruled that: “the decision of the authorities to override the second applicant’s objection to the proposed treatment in the absence of authorisation by a court resulted in a breach of Article 8 of the Convention.” It “unanimously [held] that there [had] been a violation of Article 8 of the Convention.” Under this precedent, doctors should either respect the will of a patient’s parent or obtain an injunction against the parent’s decision. This precedent supports the position of Lambert’s parents. However, in the Lambert judgment the Grand Chamber stated erroneously that, in the Glass judgment, the Court “held that there had been no violation of Article 8 of the Convention.” (Paragraph 138). This error is found in the “general considerations” presenting the case law and supporting the Court’s decision. It is impossible to accurately determine the implications of this error on the Court’s reasoning, but it allows the Grand Chamber to affirm, in support of its own conclusion, that it did not find a violation of the Convention in any of these cases.” (Paragraph 139). Read the rest of this entry…

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The Nagorno-Karabakh Cases

Published on June 23, 2015        Author: 

Last week I wrote about one particular aspect of the recent Grand Chamber judgments of the European Court of Human Rights in two cases dealing with the aftermath of the Nagorno-Karabakh conflict: Chiragov and Others v. Armenia, no. 13216/05 and Sargsyan v. Azerbaijan, no. 40167/06, namely the Court’s conclusion that belligerent occupation necessarily requires troops on the ground. I also promised a more comprehensive look at the two (very important) judgments, and here it is. The two cases concerned the aftermath in the conflict, in the sense that they dealt with the right of persons displaced by the conflict to access their property (under Article 1 of Protocol 1 to the Convention), rather than with the conflict itself, which was outside the Court’s temporal jurisdiction. That said, there are numerous noteworthy aspects of these two judgments.

First, there is the cases’ basic structure. Both cases were brought by individuals, but there are more than a thousand other applications pending before the Court with essentially the same issues. While these are formally not pilot judgments in the sense the Court uses the term, they are in fact test cases on the basis of which the Court is set to resolve all of the other pending cases, unless the parties choose to settle them first. And while the cases were brought by individuals, they have a strong interstate dimension, not only because of their politically controversial subject-matter, but because Armenia and Azerbaijan both intervened as third parties in the case in which the other state was the respondent (i.e. Armenia intervened in Sargasyan and Azerbaijan in Chiragov). These were, if you will, interstate cases by proxy.

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European Court Decides that Israel Is Not Occupying Gaza

Published on June 17, 2015        Author: 

Yesterday the Grand Chamber of  the European Court of Human Rights delivered judgments in two blockbuster cases regarding the aftermath of the Nagorno-Karabakh conflict between Armenia and Azerbaijan: Chiragov and Others v. Armenia and Sargsyan v. Azerbaijan. These are very rich judgments raising many important issues, and I will be writing up more detailed comments shortly. But I first had to share one particular little nugget: the Court has (implicitly!) decided that Israel is not the occupying power in Gaza. How so, you ask?

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The New UK Government Wants To Scrap the Human Rights Act. Does the Act Matter, and Can Anything Be Done To Save It?

Published on May 27, 2015        Author: 

The quick answers to the above two questions are Yes and Maybe.  Despite the statutory framework that devolved power to legislative bodies in Scotland, Northern Ireland and Wales, the UK parliament has the power to repeal the 1998 Human Rights Act (“HRA”).  Yet there are significant legal, constitutional and political aspects that will determine the future of the HRA.  Before delving into these, it is worth asking why repeal is even on the agenda.

This proposal is not new. The Conservative party promised to repeal the HRA in 2010 and replace it with a British Bill of Rights, but ended up governing in coalition with the Liberal Democrats. A Commission on a Bill of Rights was set up instead, but failed to reach a consensus. In the 2015 manifesto the pledge re-emerged.  Having won a majority on the May 7th Prime Minister David Cameron is now pressing ahead. (Also high on his legislative agenda is a referendum on EU membership). The government claims scrapping the HRA would:

  • Break the formal link between British courts and the European Court of Human Rights and make our own Supreme Court the ultimate arbiter of human rights matters in the UK” and,
  • “Stop terrorists and other serious foreign criminals who pose a threat to our society from using spurious human rights arguments to prevent deportation.”

It also intends to go ahead with a “British Bill of Rights” to:

  • “Remain faithful to the basic principles of human rights, which we signed up to in the original European Convention on Human Rights.”
  • “Reverse the mission creep that has meant human rights law being used for more and more purposes, and often with little regard for the rights of wider society”, and
  • “Ensure our Armed Forces overseas are not subject to persistent human rights claims that undermine their ability to do their job.” This argument will be familiar to readers of recent posts on the second of the two “Fog of Law” reports (2013 & 2015, Policy Exchange).

Readers will see the many legal reasons why most of these aims cannot be achieved by abolishing the HRA, Read the rest of this entry…

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Why International Migration Law Does Not Give a License To Discriminate

Published on May 20, 2015        Author: 

Juan Amaya-Castro argues that states’ selective immigration policies are discriminatory, and that this discrimination has been legitimized by international (migration) law. From a legal point of view, this is rather a misperception that confuses differential with discriminatory treatment. The latter is not allowed by contemporary international law as this post will show.

International migration law is not a self-contained legal regime. It is a multi-layered body of law consisting of various international, regional or bilateral treaties and agreements which leave “the alien’s body protected by a varying number of layers (legal regimes) depending upon the sartorial tastes of the State involved” (Richard Lillich, The Human Rights of Aliens in Contemporary International Law, Manchester UP, 1984, 122). Some of the most migrant-protective layers are certainly those provided by international and European human rights law and principles.

As regards migrants’ entry, the UN Human Rights Committee in its 1986 General Comment No 15 noted that the International Covenant on Civil and Political Rights

“does not recognize the right of aliens to enter or reside in the territory of a State party. It is in principle a matter for the State to decide who it will admit to its territory. However, in certain circumstances an alien may enjoy the protection of the Covenant even in relation to entry or residence, for example when considerations of non-discrimination, prohibition of inhuman treatment and respect for family life arise”.

This is true also under another core law-making treaty, the European Convention on Human Rights (ECHR), as interpreted by the Strasbourg Court (see below).

Differential treatment of migrants does not always equal discrimination

Migration control measures that differentiate among (prospective) migrants are not automatically unlawful. Whether such state action affecting migrants constitutes  discrimination is grounded in the principle of prohibition of discrimination enshrined notably in Article 14 ECHR and in Protocol No. 12 to the ECHR. Non-discrimination grounds indicatively enlisted therein are: “sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”. Read the rest of this entry…

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A New Case on Torture in Europe: Cestaro v. Italy

Published on May 13, 2015        Author: 

In its judgment of 7 April 2015, the European Court of Human Rights unanimously found that Italy had violated the prohibition of torture in Article 3 of the European Convention on Human Rights (Cestaro v. Italy, application no. 6884/11).

Apart from its confirmation of the well-established principles of the ECtHR on the prohibition of torture, the judgment is important for at least two other reasons: the in-depth evaluation of the behaviour exhibited by the authorities of the State involved in the affair and, above all, the Court’s statements concerning the structural nature of the problem of torture.

The case concerned events that occurred during the night of 21 July 2001, after the end of the G8 summit held in Genoa from 19 to 21 July 2001 in the “Diaz-Pertini” school used by some demonstrators as a night shelter (for an overview of the serious incidents caused by demonstrators, including some “black blocks”, see also Giuliani and Gaggio v. Italy, application no. 23458/02).

The “substantive” and “procedural” violations of the prohibition of torture

The violation of Article 3 was “dual” in nature: on “substantive” grounds owing to the ill-treatment of the applicant and on “procedural” grounds owing to the lack of adequate investigations and punishment for the officers who were responsible for the acts of torture.

Regarding the substantive violation, the Court found that anti-riot police units had stormed the school and, as the Italian courts and the ECtHR determined, had used force in a totally disproportionate way, with no real justification and completely ignoring the absence of any form of resistance by the applicant (then aged 62) and by the other occupants of the school (paras. 178-180 of the ECtHR judgment). The Court not only criticised the modus operandi of the police officers but also the planning of the whole operation, taking into account that the police officers had not been given any precise indication or instructions on the use of force and its limits. Read the rest of this entry…

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