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Home Archive for category "International Tribunals"

Conflicting Conceptions of Sovereignty: A Response to Professor Blankenagel

Published on January 28, 2020        Author: 

 

My thanks to EJIL for this opportunity to respond to Professor Alexander Blankenagel’s critique of my article, “The Relationship Between the European Court of Human Rights and the Constitutional Court of the Russian Federation: Conflicting Conceptions of Sovereignty in Strasbourg and St. Petersburg.”

Although I also thank Professor Blankenagel for his reply, I admit to some difficulty recognizing my article in his criticism of it. He only lightly engaged its core argument, focusing mostly on peripheral topics. Below is a quick summary of my main points, followed by responses to a few of his outlying critiques.

The Core Argument: Chekhov’s Gun

A relatively new Russian law expands the jurisdiction of the Russian Constitutional Court (RCC) to pick-and-choose the judgments of the European Court of Human Rights (ECtHR) that it will allow to be enforced in Russia. That law has been used twice and the evidence suggests that these cases were carefully selected six months before the law was even adopted. As Anton Chekhov admonished, “Don’t place a loaded gun on the stage if no one plans to shoot it.” Read the rest of this entry…

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Inter-State Applications under the European Convention on Human Rights: Strengths and Challenges

Published on January 24, 2020        Author:  and

 

This post provides, in broad strokes, an overview of human rights litigation via the inter-State application procedure under the European Convention on Human Rights (ECHR), as well as its strengths and challenges. In the last seven decades, States have referred 24 situations to the former Commission and to the European Court of Human Rights (ECtHR). Certainly, compared to some 750,000 individual applications, the number looks small. However, the inter-State applications have had an impact for a large number of individuals. Many of the cases also had important political ramifications and shaped the present supervisory architecture of the Convention.

The ECtHR full list of inter-State cases reveals a considerable rise of applications, with currently eight pending sets of proceedings: the 2008 armed conflict between Georgia and the Russian Federation is before the Court in Georgia v Russia II. The case has reached the merits stage, the admissibility decision was taken back in 2011. Georgia v Russia (IV) was lodged in 2018 and is pending at the admissibility stage. It relates to the alleged deterioration of the human rights situation along the boundary between Georgian-controlled territory and Abkhazia and South Ossetia. Ukraine has, since 2014, lodged a total of eight inter-State application against Russia before the ECHR, five of which are currently pending in Strasbourg. In those cases, no formal admissibility decision has been rendered yet. In the case of Ukraine v Russia(re Crimea) the Court had a hearing on the admissibility in September 2019. Slovenia brought a case against Croatia in 2016 that concerns the consequences of the breakup of Former Yugoslavia. In that case, the Court will render an admissibility decision after it held a hearing in June 2019, as anticipated on this blog by Igor Popović. Notably, two of the sets of cases involve Russia and human rights in situations of sovereignty disputes and armed conflict. Overall, the thrust of work in these inter-State proceedings still lies ahead of the Court.

State-to-State litigation based on human rights treaties is on the upswing also in the framework of the Convention on the Elimination of All Forms of Racial Discrimination (CERD). The Committee on the Elimination of Racial Discrimination is currently dealing with three inter-State communications, as David Keane reported on this blog. In the most recent December session, the Committee decided that it has jurisdiction regarding the inter-State communication submitted by the State of Palestine against Israel.

Read the rest of this entry…

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ICJ Indicates Provisional Measures in the Myanmar Genocide Case

Published on January 23, 2020        Author: 

 

Today the International Court unanimously issued its provisional measures order in the case brought by The Gambia against Myanmar under the Genocide Convention. The order is available here, the three separate opinions here. For our previous coverage of the case, see here. The fact that the Court ordered provisional measures and did so unanimously is obviously a win for The Gambia, and for the Rohingya cause more generally, but its impact should not be overstated. A couple of quick noteworthy points:

(1) The Court adopts a rather flexible approach to the issue of plausibility, and relies mainly on the reports of UN fact-finding commission to support the issuance of provisional measures (on the fact-finding commission reports see in particular Mike Becker’s earlier post). The Court specifically rejects Myanmar’s argument that a more rigorous standard of proof should be required at the provisional measures stage of a genocide claim (para. 56). However that doesn’t mean at all that Gambia will succeed on the merits (it likely won’t, as I’ll explain below).

(2) The Court indicated all but two of the provisional measures that Gambia had requested, but it’s interesting how exactly it did so.

(3) First, the principal measures it indicated, at para. 86 (1) and (2), effectively replicate state obligations under the Genocide Convention, i.e. they do not strictly legally speaking add anything new to the corpus of obligations that Myanmar already has. Second, in indicating these measures the Court omitted the references to more specific acts (e.g. rape or the burning of villages) from Gambia’s request (compare at para. 5) – basically the Court didn’t want to give the impression that any of such specific acts were proven, and the final language is more palatable and diplomatic.

Third, the Court specifically ordered Myanmar (para. 86(3)) to ‘take effective measures to prevent the destruction and ensure the preservation of evidence,’ but again it avoided the more explicit and specific language from Gambia’s request. Fourth, the Court rather laconically rejected Gambia’s (late) request for a specific measure requiring Myanmar to provide access to UN investigators, saying simply (para. 62) that it ‘does not consider that its indication is necessary in the circumstances of the case.’ This is hardly a surprising result, bearing in mind sovereignty concerns and the intrusiveness of such a measure, but the paucity of the reasoning is difficult to justify. Fifth, the Court (rather surprisingly) decided not to indicate the general, innocuous non-aggravation measure, saying that it was unnecessary due to the specific measures that it did indicate (para. 83). Finally, the Court ordered Myanmar to provide it with periodic reports on its implementation of the measures indicated – this has the potential for some bite, but obviously it remains to be seen with what rigour the Court and the parties will observe this requirement.

(4) Bearing in mind how it handled the prima facie jurisdiction analysis in this order, it seems extremely unlikely that the Court will dismiss this case at the jurisdictional stage. I see no reasonable way in which Myanmar could win on jurisdiction, but its contestation of jurisdiction will of course prolong the Court’s examination of the case.

(5) That said, the most likely outcome of the merits stage is still that Myanmar will win, i.e. that Gambia will not be able to provide clear and convincing evidence that genocide (as opposed to crimes against humanity or war crimes) were committed against the Rohingya – basically the same outcome as in the Bosnian and the Croatian genocide cases. The evidentiary requirements were set so high in those cases (in my view rightly so), that they could not be met even with the existence of a fully-fledged international criminal tribunal that could reliably establish the facts. The Court will not have the luxury of the ICTY’s assistance in this case, and once counsel for Myanmar start probing the specific evidence behind the UN fact-finding reports bit by little bit it seems probable that they’ll raise sufficient doubt as to the existence of genocidal intent. But this outcome, even though in my view highly likely, is still many years down the line.

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Of Temporal Jurisdiction and Power Struggles in the ICC’s Palestine Investigation

Published on January 22, 2020        Author: 

 

It’s been five years since Palestine made the much-awaited move of requesting the International Criminal Court to investigate crimes allegedly committed by Israel “in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014.” Like last month’s decision of the Prosecutor announcing her intention to open an investigation, it was made public in the midst of the holiday season. At the time, Palestine invoked Article 12(3) of the Rome Statute – which gives a state not a party to the Rome Statute the right to accept the jurisdiction of the Court on a one-time basis. A day after it made this request, Palestine acceded to the Rome Statute. 

Shortly thereafter, I re-traced the steps taken by Palestine to gain access to the International Criminal Court up and until December 2014. Those steps were part of a wider effort to expand Palestine’s participation in international bodies, from UNESCO to WIPO and the International Court of Justice (first by appearing in the Wall advisory proceedings, later by bringing a contentious case against the United States).

That Palestine chose to make a declaration under 12(3) and accede to the Rome Statute was intriguing to say the least. The reason behind this double move by Palestine was, I argued, to be found in its impact on the temporal jurisdiction of the Court. Palestine sought to grant the Court with the broadest possible temporal jurisdiction, one that includes crimes committed before and after December 2014. This was a deliberate strategy, which bore its fruits in the Prosecutor’s recent decision.

Becoming a party to the Rome Statute granted the Court’s temporal jurisdiction vis-à-vis crimes committed after the entry into force of the Statute – in this case acts committed after April 1, 2015. The declaration made under Article 12(3) extended such jurisdiction to crimes committed between June 13, 2014 and April 1, 2015. This explains why Palestine was able to request the investigation of acts that occurred prior to April 1, 2015.

Read the rest of this entry…

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Alternative Charges and Modes of Liability in the Latest CAR Case at the ICC – Trouble Ahead?

Published on January 21, 2020        Author: 

 

On 20 December 2019, Pre-Trial Chamber II partially confirmed the charges against Alfred Yekatom and Patrice Ngaïsonna, two co-accused in the first case to arise from the Prosecutor’s investigation into the 2013 conflict in the Central African Republic. Notably, for numerous charged incidents the judges considered that the threshold of “substantial grounds to believe” was not established, mainly with regard to allegations against Ngaïsonna.

However, for the charges that were confirmed for trial, the decision’s treatment of the charged modes of liability raises some curious eyebrows. Two aspects stand out. First, the Chamber’s treatment of alternative charging, and second, its handling of the principal mode of liability under the Rome Statute, article 25(3)(a). Upon closer examination, the Chamber’s interpretation and application of the law in these two aspects represents a sharp turn away from existing jurisprudence, and arguably erodes the coherence of the charges. Consequently, the confirmation decision – which is supposed to provide clarity for the parties at trial – creates more uncertainty by pushing to the Trial Chamber issues that would be better resolved at this stage. This post considers how both of these areas were dealt with by the Pre-Trial Chamber, and how the trial may be affected going forward.

Alternative Charging

In the Document Containing the Charges (“DCC”), the Prosecution charged modes of liability in the alternative, arguing that where evidence establishes multiple legal characterisations of the same facts, “it is appropriate that charges be confirmed under all substantiated modes of liability, and left to the Trial Chamber to determine which of those legal characterisations meets the standard of proof at trial.” (para. 625)

In the present case, the full array of modes were alleged: Ngaïsonna was charged under article 25(3)(a), (c) and (d), i.e., as a direct co-perpetrator, assisting and/or through common purpose liability. Yekatom was charged under article 25(3)(a), (b), (c) and (d), i.e., as a direct and indirect co-perpetrator, ordering, assisting, and/or common purpose liability, as well as command responsibility under article 28 (see pp. 136-164 of the DCC for a helpful breakdown of the alleged modes per incident).

For charges that were confirmed, the judges declined to confirm all of the pleaded modes. For example, with regard to Yekatom, where the evidence established responsibility under article 25(3)(a) or (b), the Chamber repeatedly deemed it “unnecessary” to subsequently address responsibility under (c) or (d). (see e.g., paras. 99-100)

However, the rejection of (c) and (d) appears conceptually misplaced. If the criminal contribution of a suspect is deemed to be evident in the sense of article 25(3)(a), then such a contribution could likewise be legally characterised in the sense of (c) or (d), as “assisting” or as “any other contribution.” The Chamber does not engage with the consistent jurisprudence which has permitted alternative charging of modes, nor does it refer to the Chambers Practice Manual (updated recently in October 2019) that expressly endorses it, and which warns – as academics and dissenting judges previously have – of the spectre of Regulation 55:

In the charges, the Prosecutor may plead alternative legal characterisations, both in terms of the crime(s) and the person’s mode(s) of liability. In this case, the Pre-Trial Chamber will confirm alternative charges (including alternative modes of liability) when the evidence is sufficient to sustain each alternative. It would then be the Trial Chamber, on the basis of a full trial, to determine which one, if any, of the confirmed alternative is applicable to each case. This course of action should limit recourse to Regulation 55 of the Regulations, an exceptional instrument which, as such, should be used only sparingly if absolutely warranted. In particular, it should limit the improper use of Regulation 55 immediately after the issuance of the confirmation decision even before the opening of the evidentiary debate at trial. (emphasis added) (Chambers Practice Manual, 2019, para. 67).

With respect to Yekatom, the Chamber also declined to confirm article 28, the mode of command responsibility, noting that “the narrative of the relevant events as emerging from the available evidence is such that Yekatom’s conduct resulted in the realisation of the objective elements of the crimes, rather than only consisting in the mere failure to prevent or repress crimes committed by other persons.” (para. 58) Again, the Chamber’s approach here is conceptually askew. A commander can actively engage in criminal conduct, while also failing to repress the crimes of their subordinates, or to later refer them to the competent authorities for investigation. This logic was noted by the Pre-Trial Chamber in Ongwen, where, faced with a similar situation, nevertheless retained article 28 on the docket (Ongwen Confirmation Decision, para. 147). Read the rest of this entry…

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Who controls WTO dispute settlement? Reflections on the Appellate Body’s crisis from a socio-professional perspective

Published on January 13, 2020        Author: 

 

Last month marked a crucial moment in the history of the World Trade Organization (WTO)’s dispute settlement system. On 10 December 2019, the terms of office of Appellate Body (AB) members Ujal Bhatia and Thomas Graham came to an end, thereby leaving the World Trade Court without the minimum complement of adjudicators necessary to carry out its functions.

As is well known, this paralysis was triggered by the United States (US)’ consistent veto on the appointment of new appellate judges, justified on grounds of the court’s ‘overreach’, its undue reliance on ‘precedent’, and its alleged disregard for the rules set forth under the Dispute Settlement Understanding (DSU). In November 2019, the US doubled down by threatening to freeze the WTO’s 2020 budget absent draconian cuts to the AB’s funding. Predictably, this prompted the vehement reaction of numerous other Members, which accused the US of holding the WTO appellate system hostage of its own concerns.

Much has been written about this institutional crisis. Yet, the notion of ‘crisis’ deserves some further… critical examination. The very utterance of the word is seldom value-neutral, but rather reflects the perceptions, the preoccupations, and sometimes the agenda of the utterer. If it is indeed true that the World Trade Court is at a critical juncture, then it bears asking: critical for whom? Who are the actors involved in the struggle? How do they articulate their claims and pursue their strategies? To what ends? And who stands to gain and who to lose from the present impasse?

The WTO as a conflictive socio-professional field

Scholars tend to appraise the ongoing conflict in either of two ways. Some consider it as a normative disagreement over the appropriate boundaries of WTO adjudication vis-à-vis the regulatory authority of Members. This narrative typically focuses on the extent of the AB’s implicit powers, the role of past jurisprudence in its legal interpretations, the viability of alternatives to the appellate process, and the like. Others conceive the conflict as part of a struggle for political supremacy against the evolving landscape of international economic relations. This narrative tackles issues like US-China trade wars, the breakdown of multilateralism, the resurgence of sovereigntist economic policies, etc.

To complement these accounts, I suggest that the ongoing struggle surrounding the AB reflects a confrontation between competing socio-professional groups within the WTO legal field. The multilateral trade regime is not only a legal or a political construct. It is also the site of a contest among social actors endowed with unequal professional and technical capital, who compete for supremacy in the system. To prevail in this struggle is to secure one’s authority, impose one’s vision of the law as the dominant paradigm—in one word, to control WTO dispute settlement. Exploring the interplay and power relations among the various socio-professional actors involved in WTO adjudication is, therefore, key to understanding understanding the tensions that currently agitate the field. Read the rest of this entry…

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Playing Safe or Hide and Seek? The ICC Prosecutor’s Request for a Ruling on the Court’s Territorial Jurisdiction in Palestine

Published on January 10, 2020        Author: 

 

On 20 December 2019, the Office of the Prosecutor (OTP) of the ICC issued a Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine (“Prosecution request”). The request by Fatou Bensouda’s office was filed on the same day as the publication of a detailed memorandum drafted by the Office of the Attorney General for the State of Israel (“OAG’s memorandum”), outlining the reasons why the ICC has no jurisdiction over Palestine. In a nutshell, the 34-pages memorandum argues that in the situation in the State of Palestine the fundamental precondition to jurisdiction enshrined in the Rome Statute – namely, that a State having criminal jurisdiction over its territory and nationals has delegated such jurisdiction to the Court – is clearly not met. The ICC Prosecutor presents a contrary view. Whilst the Prosecutor believes that the Court does indeed have the necessary jurisdiction in this situation, she is “mindful of the unique history and circumstances of the Occupied Palestinian Territory” (i.e. the Prosecutor considers that the Court’s territorial jurisdiction extends to the Palestinian territory occupied by Israel during the Six-Day War in June 1967, namely the West Bank, including East Jerusalem, and Gaza; this territory is delimited by the “Green Line” agreed on in the 1949 Armistices), and “seek[s] judicial resolution of this matter at the earliest opportunity” (§§ 3-5 of the Prosecution request). Without hoping to provide an exhaustive overview of the complex issues at stake, it is worth taking a closer look at the OTP’s request to Pre-Trial Chamber I (PTC I) and sharing some initial thoughts on its possible outcomes.

Background of the Prosecution request

As is well known, on 1 January 2015 the Government of Palestine lodged a declaration under Article 12(3) of the ICC Statute accepting the Court’s jurisdiction over alleged crimes committed “in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014”. On 2 January 2015, the Government of Palestine acceded to the Rome Statute by depositing its instrument of accession with the UN Secretary-General. Following the accession, the Rome Statute entered into force for the State of Palestine on 1 April 2015. On 16 January 2015, the OTP opened on its own initiative a preliminary examination into the situation in Palestine. On 22 May 2018, Palestine also referred this situation to the Prosecutor, pursuant to Articles 13(a) and 14 of the Rome Statute. The preliminary examination into the situation in Palestine resulted in the determination that all the statutory criteria under the Rome Statute for the opening of an investigation have been met(ish?). Read the rest of this entry…

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A New Classic in Climate Change Litigation: The Dutch Supreme Court Decision in the Urgenda Case

Published on January 6, 2020        Author:  and

 

 

The judgment of the Dutch Supreme Court in State of the Netherlands v Urgenda is a landmark for future climate change litigation. On the 20th of December 2019, the Supreme Court held that on the basis of the European Convention on Human Rights (ECHR) the Netherlands has a positive obligation to take measures for the prevention of climate change and that it has to reduce its greenhouse gas (GHG) emissions with at least 25% by the end of 2020, compared to 1990 levels. An unofficial translation of the full judgement will be published on the website of the Dutch judiciary after the 13th of January 2020.

The judgment is significant as it demonstrates how a court can determine responsibilities of an individual state, notwithstanding the fact that climate change is caused by a multiplicity of other actors who share responsibility for its harmful effects. Around the world, a flood of lawsuits has been initiated to establish legal responsibility for actors contributing to climate change. The Urgenda judgment, that has been heralded as the ‘strongest’ of all, makes clear that the fact the a state is only a minor contributor compared to many other actors, does not preclude its individual responsibility. The judgment contains important pointers that plaintiffs and courts can rely on in similar cases.

In this blogpost we briefly recap the procedure leading to the Supreme Court judgment and discuss three conclusions reached by the Supreme Court that will be of wider interest:

1) the ECHR imposed a positive obligation to take appropriate measures to prevent to climate change;

2) these measures should at least ensure that the Netherlands realizes a reduction of GHG emissions by 25%, compared to 1990, by the end of 2020; and

3) even though the Netherlands was only a minor contributor to climate change, it had an independent obligation to reduce emissions.

Recap of the proceedings

Central to the proceedings was the reduction target for developed nations of 25%-40% by 2020, compared to 1990 levels, originally identified as one scenario in the 2007 Fourth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC). The Netherlands had embraced this target in 2007, stating that it aimed to reduce Dutch emissions with 30% by 2020. Yet in 2011, the government indicated that it would not meet the target, instead aiming for 14-17% reduction.

In 2013, a Dutch NGO with a mission to contribute to sustainability and innovation called Urgenda (‘urgent agenda)’, initiated a lawsuit against the Dutch State with the aim to order the State to reduce Dutch GHG emissions by 40% at the end of the year 2020, or at least by a minimum of 25% in comparison the year 1990.

In the 2015 judgment of the Hague District Court, Urgenda prevailed. The District Court ordered the State to ‘limit the joint volume of Dutch annual greenhouse gas emissions, or have them limited, such that this volume will have been reduced by at least 25% at the end of 2020 compared to the level of the year 1990′. The District Court based this order on the doctrine of hazardous negligence, which is read into the provision on tort in the Dutch Civil Code: behaviour is inter alia considered tortious if it unnecessarily creates danger and thus is contrary to what ‘according to unwritten law is deemed fit in societal interrelations’ (Article 6:162). Contrary to Urgenda’s claim, the District Court did not ground its conclusion directly on human rights law, as it held that Urgenda could not invoke human rights provisions stemming from the ECHR (nor could it invoke the United Nations Convention against Climate Change (UNFCCC)). Read the rest of this entry…

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Procedural Deference at Strasbourg: A Trend Calling for a New Admissibility Criterion?

Published on January 3, 2020        Author: 

This blogpost argues that including an additional admissibility criterion in the European Convention on Human Rights (the Convention) for cases that were carefully dealt with at the domestic level is worthy of serious consideration, if it corresponds to a desirable understanding of the European Court of Human Rights’ (the Court) subsidiarity vis-à-vis the States. In view of the Court’s practice discussed hereinafter, a formal inadmissibility-rule appears preferable over judicial ‘ad-hocery’.

The relevant practice relates to the Court’s ‘procedural turn’: the Court increasingly defers to State authorities on grounds of their diligent decision-making. I argue that the Court does so not only by granting a wide ‘procedural margin of appreciation’, but also by outrightly declaring applications inadmissible. Let me illustrate this with a Danish case (which I further discuss below) concerning an applicant who had obtained a residence permit as an unaccompanied minor and later received an expulsion decision due to his criminal record. The Court, declaring the complaint inadmissible, observed: ‘the domestic courts … carefully balanced the competing interests, took into account the criteria set out in the Court’s case-law and explicitly assessed … Denmark’s international obligations’ (Mohammad, § 35). The Court thus endorsed the domestic courts’ proportionality assessment due to their procedural diligence, instead of and abstaining from engaging itself in any weighing of the applicant’s rights against Denmark’s public order interests.

Although this inadmissibility-practice comes close to full deference on procedural grounds, it has not gained much attention. Neither has a proposal from the Council of Europe’s Steering Committee for Human Rights (CDDH) that suggested a new admissibility criterion corresponding to this practice, but was ultimately discarded.

The case-law

Estimating the prevalence of relevant inadmissibility decisions is laborious due to the number of decisions and their varying language. A number of relevant cases were brought against Denmark under Article 8 by applicants threatened with expulsion. Mohammad, mentioned above, is a good example. Read the rest of this entry…

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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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