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Home Human Rights Archive for category "European Convention on Human Rights"

State-Empowered Actors in the European Court of Human Rights – State Sovereignty and Council of Europe Authority

Published on December 24, 2019        Author: 

 

Human rights conventions constitute a particular category of international law in respect of which individuals, exceptionally, are empowered to act because of their status as rights holders. Nowhere is this more evident than in regional bodies, such as the Council of Europe, which are founded on human rights conventions the ratification of which is a necessary criterion for membership. For the Council of Europe this convention is the European Convention on Human Rights. It is also mandatory for members States of the Council of Europe to accept the right of individuals aggrieved that their rights as contained in the ECHR have been violated to petition the European Court of Human Rights (ECtHR) for redress. Decisions of the ECtHR regarding applications are binding on the member State concerned and generally followed by other member States. The centrality of the individual as an applicant before the ECtHR is evidenced by the fact that the vast majority of the ECtHR’s case load consists of such applications. But individuals are not the only actors which participate in the interpretation of human rights. Non-state actors, in particular state-empowered actors, in the language of Sivakumaran, are increasingly relevant to making and shaping international law including its interpretation, application and development.

This blog examines the development of human rights interpretation by the ECtHR from a specific point of view: to what extent do instruments relevant to the rights contained in the ECHR, but adopted in Council of Europe institutions which consist of members appointed by the member States that are independent of those states and who do not represent them, establish evidence of agreement among the states? Read the rest of this entry…

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The ECHR and Gender Quotas in Elections

Published on December 19, 2019        Author: 

 

The ECtHR recently decided its first gender quota case, and another one is pending. The former dealt with a gender imbalance favoring male candidates, while the latter concerns a gender imbalance favoring female candidates.

There is no Europe-wide right to remedy the deficiencies in submitted candidatures.

In most European democracies, electoral authorities do not immediately and definitely reject faulty candidatures. Instead, they allow political parties a day or two to correct such deficiencies. In Zevnik and Others v. Slovenia, 54893/18, the ECtHR decided that the Convention does not guarantee a right to correct flaws and that a final rejection of a candidate list, without the possibility of correction, remained in line with the Convention. It is thus up to the member states to grant (or not) such a privilege to candidates and parties. In this case, the relevant candidate list was rejected for containing more males than allowed. On the other hand, Pečnik v. Slovenia, 53662/18, concerns a case in which, applying a rule that aimed at increasing female representation, the authorities disqualified a predominantly female list of candidates. This post endeavors to explain both cases.

Under the Slovenian Parliamentary Elections Act, on a district list of candidates, no gender may be represented by less than 35% of the total actual number of candidates. The first applicant in the Zevnik case was a female candidate who ran for the 2018 parliamentary elections. Her party had submitted lists with less than 35% of female candidates in two districts. One of the lists contained five male and two female candidates, while the other included six men and two women. Electoral authorities rejected the entire lists of candidates, without giving either the candidates or the parties any possibility to remedy these deficiencies.

The rejected parties subsequently complained that the electoral commissions should have allowed them to do so by amending or shorten the lists, allowing some male candidates to withdraw, removing some male candidates themselves, or rejecting the lists partially, rather than entirely. They maintained that the rejection of the complete candidate lists for an alleged failure to ensure gender‑balanced representation was a disproportionate sanction, especially as no other European democracy immediately and definitely disqualifies entire candidate lists for similar reasons. Read the rest of this entry…

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For Whom the Bell of the European Convention on Human Rights Tolls? The Curious Case of Slovenia v. Croatia

Published on December 5, 2019        Author: 

 

“This case is unusual, yet important and also familiar”, was the opening statement by Mr. Jeremy McBride (Croatian counsel) at the admissibility hearing before the Grand Chamber of the European Court of Human Rights (the Court or ECtHR) in the case of Slovenia v. Croatia held on June 12. The case is also hot since Slovenia expects the Court’s decision on the admissibility by the end of 2019 or in the first half of 2020.

The case is unusual because it is the first EU inter-state application case and it is all about the rights of a legal person which can be classified as a governmental organization. Namely, Slovenia sued Croatia before the Court for alleged human rights violations of the state-owned bank Ljubljanska banka (LB) in Croatia. The case is familiar because the Court previously decided that LB is a governmental organization and therefore it does not have locus standi under Art 34 of the European Convention on Human Rights (the Convention) (see cases Ališić and Ljubljanska banka). The problem occurred during the era of Socialist Federal Republic Yugoslavia. It concerns Yugoslav banking system problems which emerged after the dissolution of Yugoslavia.

Slovenia states that the purpose of the case is a just solution for the old foreign-currency savings problem. By virtue of the Ališić judgment, Slovenia was obliged to pay the vast majority of old foreign-currency savings in Yugoslavia. Relying on the findings in that case, Slovenia expects the Court to remedy violation of LB’s rights committed by Croatia.

The factual background and the Court’s findings in Ališić and Ljubljanska banka cases are explained in detail in Janja Hojnik’s post on this blog. Therefore, I will not elaborate on the facts further, nor will I consider whether Croatian courts violated LB’s rights and denied justice. Instead, I will focus on one issue of importance: whether a state can bring an inter-state application before the ECtHR while at the same time the alleged victim cannot file an individual application

One important issue for the Court to resolve

Can Slovenia claim that Croatia violated LB’s rights under the Convention even though LB itself is not authorized to file an individual application? Read the rest of this entry…

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Mandatory Derogation from Human Rights in Overseas Armed Conflicts? A Response to the Policy Exchange Proposals

Published on November 27, 2019        Author: 

 

 

A recent paper published by Policy Exchange, Resisting the Judicialisation of War, sets out a range of policy and legislative proposals for the incoming UK government. In this blog post, I raise concerns over three recommendations in the paper.

Contextualising the proposals

In the background to the Policy Exchange paper is the Ministry of Defence (MOD)’s 2016 announcement of a “presumption to derogate” from the European Convention on Human Rights (ECHR), particularly in “future overseas operations”. Derogation is the mechanism built into the ECHR to provide flexibility in times of war or emergency. It enables States to modulate the scope of Convention obligations and take measures consistent with the Law of Armed Conflict (if applicable).

The MOD’s 2016 press release asserted that litigation followed military operations in Iraq and Afghanistan on “an industrial scale”, and that derogation would protect troops from persistent “vexatious claims”. Previous Policy Exchange reports, Fog of Law (2013), Clearing the Fog of Law (2015) and Protecting Those Who Serve (2019), placed the blame for such claims squarely on judicial decisions applying the ECHR to extraterritorial armed conflicts, including Al-Skeini v UK (2011) 53 EHRR 18 and Smith v MOD [2013] UKSC 41.

This resulted in what Policy Exchange calls the ‘judicialisation’ of war. The application of the ECHR to military operations is alleged to hinder commanders by generating risk aversion, leading to the hyperbolic claim that the military risks “defeat by judicial diktat”. The recent paper is the latest instalment in Policy Exchange’s coordinated efforts to sway UK policy in this area.

Derogation is the proposed workaround. Read the rest of this entry…

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Case Closed, but what about the Execution of the Judgment? The closure of Anchugov and Gladkov v. Russia

Published on October 30, 2019        Author:  and

 

 

In the beginning of October, EJIL: Talk! published a series of posts (here and here) by George Stafford, one of the co-directors of the European Implementation Network, who raised alarm about the status of execution of judgments of the European Court of Human Rights (the ECtHR). Based on the available statistical data, George argued that the problem of non-execution is “far more widespread than many believe.” Our post continues to address the important issue of the execution of judgments of the ECtHR by focusing on a specific case, namely Anchugov and Gladkov v. Russia – a 2013 judgment concerning the disenfranchisement of prisoners in Russia. 

On September 25th, the Committee of Ministers (the CM) of the Council of Europe, which pursuant to Article 46(2) of the European Convention on Human Rights (the ECHR or the Convention) supervises the execution of judgments of the ECtHR, adopted a final resolution CM/ResDH(2019)240, which closed the supervision of Anchugov and Gladkov v. Russia. The closure of the case means that Russia has complied with Anchugov and Gladkov judgment, as per assessment of the CM.

Anchugov and Gladkov became a test case for the Russian Constitutional Court (the RCC) under the domestic mechanism introduced in 2015, which permitted the Russian authorities to refuse the execution of judgments of the ECtHR on the basis of the RCC’s assessment of non-compliance of such judgments with the Russian Constitution. The RCC’s 2016 ruling of 19 April 2016 finding that the execution of Anchugov and Gladkov judgment was “(im)possible” provoked strong criticism from legal scholars and became a symbol of Russia’s resistance to the authority of the ECtHR. Read the rest of this entry…

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The ECtHR on Disembarkation of Rescued Refugees and Migrants at Greek Hotspots

Published on October 25, 2019        Author: 

The storm-tossed question of disembarking rescued refugees and migrants

The pressure of mass migration in the Mediterranean on EU sea-border states calls for other member states to contribute to humanitarian efforts at sea that respect the human rights of refugees and migrants. Article 98 of the United Nations Convention on the Law of the Sea (LOSC) codifies the maritime duty to rescue persons in distress and creates the complementary duty on coastal states to cooperate in operating search and rescue (SAR) services. Under the International Convention on Maritime Search and Rescue (SAR Convention) and the International Convention for the Safety of Life at Sea (SOLAS Convention) the relevant coastal state must ensure timely disembarkation of survivors at a ‘place of safety’ (see e.g. 1979 SAR Convention Annex ch. 3, 3.1.9). However, poor reception and detention conditions at Greek hotspots in the Aegean Sea raise the question of whether disembarkation at these EU assigned facilities will be in contravention of obligations under the European Convention on Human Rights (ECHR), in particular the Article 3 prohibition on inhuman and degrading treatment.

Following an overview of the current conditions at the Greek hotspots, this study considers a number of decisions of the European Court of Human Rights (ECtHR) exploring extraterritorial liability for disembarkation and the relevance of the contexts of maritime rescue and mass migration to the overall assessment of Article 3. Despite problems such as severe overcrowding, Convention states may be able to disembark at Greek hotspots without triggering Article 3 liability. Read the rest of this entry…

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Turkey, Aggression, and the Right to Life Under the ECHR: A Reaction to Professor Haque’s Post

Published on October 22, 2019        Author: 

Professor Haque yesterday published a thought-provoking piece on this blog arguing that the Turkish incursion against Kurdish forces in Syria, beyond being a violation of the UN Charter, also amounts to a violation of the right to life under the ECHR. His reasoning, which is sound, is based on the Human Rights Committee’s rather controversial new General Comment 36 on the right to life under the ICCPR, where the Committee concludes that States Parties to the Covenant engaging in acts of aggression resulting in deaths violate ipso facto Article 6 (for its part, the HCRttee itself draws on the opinion of academics such as William Schabas who originally developed the argument).

I do not disagree with Professor Haque’s logic, which is, like that of the HRCttee, internally sound. However, I disagree with the exceptionalism which often seems to characterize attempts to include jus ad bellum in the lawfulness test for arbitrary deprivation of life– and, respectfully, Professor Haque’s piece suffers from that same exceptionalism.

The classical view of permissible violence in armed conflicts, based on the long-standing distinction between jus in bello and jus ad bellum, is actually a coherent and credible legal position – one that has the additional advantage of being the mainstream interpretation. It is entirely plausible to maintain that the UN Charter does not mix very well with human rights or humanitarian law instruments. The whole structure of IHL has been built on the premise of its separation from the lawfulness of resorting to force, and the ICRC itself continues to strongly defend this position.

But the emerging understanding of the right to life in light of jus ad bellum is also a coherent, well-structured and convincing interpretation of treaty law, from the point of view of human rights law taken in relative isolation. The fact that this interpretation has also been authoritatively endorsed by a treaty body gives it an aura of credibility that few “progressive” interpretations raised in doctrine can usually aspire to. But the mere fact that a particular interpretation of treaty law makes sense does not mean that it should actually be made.

Read the rest of this entry…

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Turkey, Aggression, and the Right to Life Under the ECHR

Published on October 21, 2019        Author: 

Turkey’s latest invasion of Syria violates the prohibition of interstate armed force. It cannot be justified by Turkey’s right of self-defense (see here and here). What follows? Among other things, each and every person killed by Turkish forces and agents is killed in violation of her human right to life. Every civilian killed in violation of international humanitarian law. Every combatant or fighter killed without violation of international humanitarian law. Everyone. Let me explain.

The International Covenant on Civil and Political Rights provides that “No one shall be arbitrarily deprived of his life.” According to the Human Rights Committee’s General Comment No. 36 on the right to life, “[d]eprivation of life is, as a rule, arbitrary if it is inconsistent with international law.” It follows that “States parties [to the Covenant] engaged in acts of aggression as defined in international law, resulting in deprivation of life, violate ipso facto article 6 of the Covenant.” This much is well known.

The European Convention on Human Rights provides that “[n]o one shall be deprived of his life intentionally” except in cases of capital punishment or when absolutely necessary to defend a person from unlawful violence; to effect a lawful arrest or prevent the escape of a person lawfully detained; or to quell a riot or insurrection. It follows that States parties to the Convention engaged in acts of aggression as defined in international law, resulting in intentional deprivation of life, violate ipso facto article 2 of the Convention. I am told this is less well known. Read the rest of this entry…

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The Implementation of Judgments of the European Court of Human Rights: Worse Than You Think – Part 2: The Hole in the Roof

Published on October 8, 2019        Author: 

Part 1 of this blog post addressed the current narratives concerning the implementation of ECtHR judgments. Part 2 below attempts to set out what the current state of implementation might really be.

Imagine you are told that there is a hole in the roof of your house. You go out to buy the materials to fix it, come home and begin work. However, half-way through the repairs you realise that the hole is far larger than you thought. It turns out that you do not have enough materials to mend it properly.

If we are not careful, this is what is going to happen with the challenge of non-implementation of ECtHR judgments and the response that is made towards it in the next era of the Convention system. The scale of the problem is being underestimated – so there is a serious danger that the response will be insufficient. The scale of non-implementation can be demonstrated by looking at the best metrics available to assess the issue.

Overall judgments vs. Leading judgments

The number of overall pending ECtHR judgments is mostly filled by repetitive cases. In order for these to be closed, justice has to be carried out for the individual applicant in the case. This usually involves the payment of compensation; or perhaps a retrial or proper investigation into the relevant events. Read the rest of this entry…

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The Implementation of Judgments of the European Court of Human Rights: Worse Than You Think – Part 1: Grade Inflation

Published on October 7, 2019        Author: 

Part 1 of this blog post will explore how the current narratives about the implementation of ECtHR judgments paint a misleading picture. In Part 2, a different set of statistics will be examined, in order to explore how well the implementation system is really functioning.

In some countries, exam results in schools and universities are improving every year. However, many doubt that this is because the students are actually doing better in their studies. The accusation is made that, though exam marks are improving, this is the result of tests being made easier, rather than the students becoming better educated. This “grade inflation” allows schools and universities to publish better results, but without the performance behind the results actually improving.

What applies to schools and universities can also apply to international institutions.

Over the last few years, the Council of Europe has advanced a consistent narrative about the state of implementation of judgments from the European Court of Human Rights. This narrative suggests that implementation is going very well indeed. Read the rest of this entry…

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