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Home International Tribunals Archive for category "European Court of Human Rights" (Page 13)

Crimea after Cyprus v. Turkey: Just Satisfaction for Unlawful Annexation?

Published on May 19, 2014        Author: 

On 13 March 2014 Ukraine lodged an inter-state application under Article 33 of the European Convention against the Russian Federation. Philip Leach has addressed in this forum the likely implications, suggesting that the occupation of Crimea will present a situation for the European Court similar to that in Ilaşcu v. Moldova and Russia.

The other decided case of the European Court that writers are speculating may be relevant to Ukraine is Cyprus v. Turkey. The Court’s just satisfaction judgment in Cyprus v. Turkey, adopted on 12 May 2014, is the first ever to award just satisfaction in an inter-State case under the Convention. Judge Pinto de Albuquerque and Judge Vučinić declared the judgment “the most important contribution to peace in Europe in the history of the European Court of Human Rights.”

What is important about Cyprus v. Turkey? And how, if at all, might Ukraine use the just satisfaction judgment to advance its own application against Russia?

Read the rest of this entry…

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The Successes and Challenges for the European Court, Seen from the Outside

Published on May 14, 2014        Author: 

Helfer photo croppedLaurence R. Helfer is the Harry R. Chadwick, Sr. Professor of Law and Co-director of the Center for International and Comparative Lawat Duke University.

Cross-posted on AJIL Unbound.

In this post I wish to address the successes and challenges for the European Court of Human Rights (ECtHR), as seen from the outside.  I will take this opportunity to draw upon my research on human rights systems outside of Europe to explain how these systems have responded to some of the same challenges now facing the Council of Europe and the ECtHR.  My main contention is that international human rights courts, wherever they are located, require sustained political and material support if they are to thrive and grow over time.

I will illustrate my points with examples from the Inter-American and African courts of human rights and from lesser-known courts of sub-regional legal systems in Africa—the Economic Community of West African States (ECOWAS), the East African Community (EAC) and the Southern African Development Community (SADC).  The judges of these courts often look to ECtHR case law for guidance.  They are also aware of the high level of political and material support for the Strasbourg supervisory system.  Just as these courts have drawn inspiration from the ECtHR, so too those who will shape the Court’s long-term future should consider both the achievements and the challenges that these regional and sub-regional systems have faced.  In describing these positive and negative developments, I will focus on three issues—the evolution of human rights jurisprudence, the politics of compliance with court judgments, and government resistance and backlash.

I will begin with jurisprudential trends.  The innovative doctrines and principles pioneered by judges in Strasbourg are alive and well in other human rights systems.  Interpretive tools such as the evolutionary nature of human rights, the presumption that rights must be practical and effective, the creative and strategic approach to remedies, and cross-fertilization of legal norms are commonplace in the case law of all regional and sub-regional courts.  For example, Inter-American judges have applied these doctrines in several types of cases, including the obligation to investigate, prosecute and punish the perpetrators of past human rights violations, the prohibition of amnesty for such violations, the rights of LGBT persons, and affirmative measures to combat violence against womenMtikila v. Tanzania, the first merits judgment of the African Court of Human and Peoples’ Rights decided in 2013, analyzes the decisions of the other two regional human rights courts and the U.N. Human Rights Committee to support its conclusion that a ban on independent candidates standing for election violates the African Charter.  Among the most striking examples of creative legal interpretation appear in the case law of the East African Court of Justice and the SADC Tribunal.  The judges of those courts have cited references to human rights, the rule of law and good governance in the principles and objectives clauses of treaties establishing the economic communities to justify expanding their jurisdiction to include human rights.

These capacious interpretations have broadened the scope and reach of international human rights law.  But they have also engendered significant compliance challenges.  All other things equal, the more expansive and far-reaching remedies a court requires, the greater the likelihood of delay or resistance in implementing its judgments—in terms of political will, capacity, and commitment of resources.  The Inter-American Court has by far the most ambitious approach to remedies, often specifying in exquisite detail the measures states must adopt.  Governments have responded by implementing the easier and less politically costly remedies, with the result that partial compliance with the Inter-American Court’s judgments is now commonplace. Read the rest of this entry…

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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…

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The dilution of the family in human rights: Comments on Vallianatos and other ECHR cases on “family life”

Published on March 25, 2014        Author: 

In the decision of Vallianatos and others v. Greece (No. 29381/09 and 32684/09) delivered on 7th November 2013, the European Court of Human Rights (the Court) considered that two adult men living separately should benefit from the protection granted to families in the particular case where they maintained a stable homosexual relationship. On this occasion the Court affirmed that, from now on, when a European State legislates as regards the family, it “in its choice of meansmust necessarily take into account developments in society and changes in the perception of social and civil-status issues and relationships, including the fact that there is not just one way or one choice when it comes to leading one’s family or private life” (§ 84). The Court thus ensures that European States adapt their legislation to (its own perception of) the evolution of morals. This decision marks a new stage in the accelerated dissolution of the legal definition of the family which from a biological and institutional reality has become a concept which is flexible to the point of inconsistency.

The family constituted by marriage and/or children

The European Convention on Human Rights (the Convention) protects “private and family life” in the same provision (Article 8), along with the home and correspondence. However, the Court has progressively distinguished the protection of private life from that of family life. Private life is a broad concept which does not lend itself to an exhaustive definition. The essential goal of the protection afforded by it is to protect the individual from the arbitrary interference of the authorities and it may in addition create positive obligations inherent in an effective “respect” for private life (Olsson v. Sweden, No. 10465/83, 24.03.1988). As for the protection of family life, it focuses primarily on the relationship between children and their parents. Read the rest of this entry…

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Ukraine, Russia and Crimea in the European Court of Human Rights

Published on March 19, 2014        Author: 

Much has been written recently about the legal ramifications of events in Ukraine, but there was a new development last week when the European Court of Human Rights granted interim measures in an inter-state case brought by Ukraine against Russia. The case was lodged on 13 March, and on the same day the Strasbourg Court issued an interim measure (under rule 39) indicating that the Russian government should ‘refrain from measures which might threaten the life and health of the civilian population on the territory of Ukraine’.

The decision was taken by the President of the Third Section of the Court, the Andorran judge, Josep Casadevall. Judge Casadevall went further in calling on both Ukraine and Russia to refrain from taking any measures, ‘in particular military actions’, which might breach the rights of civilians under the European Convention on Human Rights, including putting their life and health at risk, and calling on the states to comply with Articles 2 and 3 of the Convention. Both states are obliged to inform the Court as soon as possible of the measures they have taken in response.

In spite of the Convention preamble’s exhortation to state parties to ensure its collective enforcement, the inter-state case procedure in Strasbourg remains a rarity. It may come as little surprise that Russia has been the respondent in the three most recent such cases, each of which has been brought by Georgia. Georgia v Russia (I) relates to the arrest and detention of the Georgian immigrant population in Russia in September 2006, following the arrest in Tbilisi of four Russian service personnel on espionage charges. More pertinently to the current events in Ukraine, Georgia v Russia (II) concerns the August 2008 conflict in South Ossetia and Abkhazia, in which Russia claims to have been defending the civilian population (Russian citizens who had been granted passports) in both regions against Georgian attacks (there are also at least 2,000 individual applications pending against one or other (or both) states). A third case brought by Georgia, relating to the detention of four Georgian minors in South Ossetia, was withdrawn after they were released in December 2009, following missions to the region by the Commissioner for Human Rights.

Read the rest of this entry…

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Business and Human Rights Law in the Council of Europe: Noblesse oblige

Daniel Augenstein

Daniel Augenstein

Nicola Jägers

Nicola Jägers

Willem van Genugten

Willem van Genugten

Daniel Augenstein is Assistant Professor at Tilburg Law School. Willem van Genugten is Professor of International Law at Tilburg Law School and at the North-West University in South Africa (extraordinary chair). He also is President of the Royal Netherlands Society of International Law. Nicola Jägers holds the chair of international human rights law at Tilburg Law School and is also Commissioner at the Netherlands Institute for Human Rights.

In January 2013, the Committee of Ministers of the Council of Europe (CoE) instructed its Steering Committee for Human Rights (CDDH) to elaborate a political declaration supporting the UN Guiding Principles on Business and Human Rights (UNGPs), and a non-binding instrument addressing gaps in the implementation of the UNGPs at the European level. This post discusses the evolution of “business and human rights” and the reception of the UNGPs in the Council of Europe. It draws attention to significant differences in policy approach between the CoE’s Parliamentary Assembly and its Committee of Ministers. It then places the discussed policy developments in the context of the CoE’s own key legal human rights instrument, the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). We highlight three areas in which the CoE is well-placed to make an important contribution to addressing the detrimental impacts of global business operations on international human rights protection: the interdependency and interaction between civil and political and social and economic rights; state obligations to respect and protect human rights in relation to corporate violations; and the extraterritorial application of international human rights law.

Business & Human Rights in the CoE’s Parliamentary Assembly

CoE activity on business and human rights dates back to 2009, when the Parliamentary Assembly adopted Recommendation 1858 on private military and security firms and the erosion of the state monopoly on the use of force. This was followed, in 2010, by the more general Resolution 1757 and Recommendation 1936 on human rights and business, which among other things highlighted legal protection gaps in the ECHR regarding human rights violations committed by private corporations. Read the rest of this entry…

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Jones v UK: On analogies and inconsistencies in the application of immunity rules

Published on January 21, 2014        Author: 

Micaela Frulli is Associate Professor of Public International Law at the University of Florence, Italy.

As Philippa Webb and Lorna McGregor have already outlined in their EJIL Talk! Posts, the ECtHR in Jones and Others v the United Kingdom  seems to have based its reasoning on the assumption that State immunity always shields State officials from civil proceedings before a foreign court and, as a consequence, it did not take into consideration the existence of different kinds of immunities accruing to the State and to its officials. The acknowledgment of a complete correspondence between State immunity and the immunity of State officials – and the reconfirmation of Al-Adsani which however only concerned State immunity – is unfortunate precisely because it does not take into account the possible existence or  development of different and autonomous rules regulating the immunity of State officials and the immunity of the State itself, at the very least with reference to cases where international crimes were committed and which entail a dual responsibility, as Lorna has stressed. It is worth fleshing out a few considerations on analogies and inconsistencies in the application of immunity rules in this area.

It is generally agreed – albeit from very different theoretical perspectives – and supported by considerable case-law, that functional immunity cannot apply in cases where State officials have allegedly committed international crimes, neither before a domestic nor before an international criminal court. On the other hand, according to the prevailing opinion (upheld by the ICJ in the Jurisdictional Immunities Judgment), the State on whose behalf the accused official was acting enjoys immunity from the civil jurisdiction of foreign States for the very same crimes. There is an inherent contradiction in the current ‘state of the art’ concerning the application of immunity rules – as underlined by the Institut de Droit International in its Resolution adopted in September 2009. A State official may not invoke official capacity as a defence, justification or excuse in a criminal trial before a competent tribunal of a foreign State, whereas the State on which behalf he or she has acted – that could have tolerated, authorized or even organized the commission of the alleged crime – may call upon respect for its sovereignty not to be subject to civil proceedings before the courts of a foreign State. States always emphasize that domestic courts are not the appropriate forum for adjudicating State responsibility and that immunity from foreign jurisdiction does not absolve States from their responsibility. However, we have witnessed too many cases where no interstate forum was available nor there were alternative avenues for the victims. Read the rest of this entry…

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Jones v. UK: A Disappointing End

Published on January 16, 2014        Author: 

Lorna McGregor is the Director of the Human Rights Centre and Reader in Law at the University of Essex.  She was previously the International Legal Adviser at REDRESS which acted as a third party intervener in the case.

In 2012, Professor Andrea Bianchi pronounced on EJIL Talk! that we finally had certainty on the relationship between state immunity and human rights with the issuance of the International Court of Justice’s decision in Germany v Italy (Greece Intervening)On the widest argument that jus cogens norms trump immunity, I agreed (‘State Immunity and Human Rights: Is there a Future after Germany v Italy’ 1 JICJ 2013).  The Italian and Greek courts had been the only national courts to entertain the proposition and no court was likely to do so again once the ICJ had resolutely rejected it.  However, I speculated that we did not have certainty yet on two issues:

1)      whether the provision of state immunity violates the right of access to a court where no alternative remedy exists; and

2)      whether foreign state officials enjoy subject-matter immunity in civil proceedings for alleged acts that attract individual responsibility under international law.

The European Court now appears to have firmly closed the door on these two points but in a way that is dissatisfying for the reasoning it employs to get there.

A Lack of Alternative Means to Resolve the Complaint

In Jones and Others v United Kingdom, my expectation was that the Court would resolve the confusion that started in Al-AdsaniIn that case, the Court rejected the Government’s argument that Article 6(1) did not apply to ‘matters outside the State’s jurisdiction’ and ‘as international law required an immunity in the present case, the facts fell outside the jurisdiction of the national courts and, consequently, Article 6’ (para 44).  However, in finding Article 6(1) to be engaged, it also failed to take up the Government’s submission that ‘[t]here were other, traditional means of redress for wrongs of this kind available to the applicant, namely diplomatic representations or an inter-State claim’ (para 50).

The decision was subsequently criticised by those who considered the international law on state immunity to preclude the engagement of Article 6(1).  It was also criticised by those who considered that if the Court was correct in its finding that Article 6(1) was engaged, then it had to analyse the impact of the restriction fully.  Read the rest of this entry…

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Jones v UK: The re-integration of State and official immunity?

Published on January 14, 2014        Author: 

Philippa Webb is Lecturer in Public International Law at King’s College London. She is the co-author, with Lady Hazel Fox QC, of the third edition of The Law of State Immunity (OUP 2013).

As regards the immunity of the State, the 6-1 decision in Jones and Others v the United Kingdom to uphold the immunity of Saudi Arabia was to be expected: in the Jurisdictional Immunities Judgment, the principal judicial organ of the UN clearly stated that that there was no exception to State immunity for jus cogens violations. The Fourth Section of the ECtHR felt no need to examine national developments in detail as the ICJ Judgment must be considered as ‘authoritative as regards the content of customary international law’ (para 198).

The razor-thin majority of the Grand Chamber in Al-Adsani 13 years ago has now been buttressed by both the ICJ and the Fourth Section of the ECtHR.

But the decision in Jones to uphold the immunity of the State officials even in the face of allegations of torture is more surprising. It stretches the meaning of the ICJ Jurisdictional Immunities Judgment and goes against two emerging trends: (1) accountability of non-high ranking State officials for serious human rights violations; (2) the diversification of various forms of immunity. Let me take these issues in turn.

Accountability of State officials for torture

As the ECtHR Chamber acknowledges (para 92), the ICJ emphasised in the Jurisdictional Immunities Judgment that it was addressing ‘only the immunity of the State itself from the jurisdiction of the courts of other States; the question of whether and to what extent immunity might apply in criminal proceedings against an official of the State is not in issue in the present case’ (para 91 of the ICJ Judgment). Yet, the ECtHR followed the ICJ’s Judgment with respect to the immunity of State officials as well as that of the State. In its 2012 Judgment, the ICJ had been silent as to immunity of a State official from civil proceedings, but it was clear that the Judgment was focused on the State itself and arguably even limited to ‘acts committed on the territory of the forum State by the armed forces of a foreign State … in the course of conducting an armed conflict’ (para 65). Read the rest of this entry…

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European Court of Human Rights Upholds State Immunity in Case Involving Allegations of Torture – Jones v United Kingdom

Published on January 14, 2014        Author: 

Today, a chamber of the European Court of Human Rights has handed down its judgment in the long awaited case of Jones and others v. United Kingdom (application no. 34356/06 & 40528/06). The case concerned the UK House of Lord’s decision ([2006] UKHL 26)  to accord state immunity in civil proceedings brought in the UK, against Saudi Arabia and Saudi Arabian officials, by British nationals who alleged they had been tortured in Saudi Arabia. The European Court of Human Rights has today upheld that decision of the House of Lords. The chamber of the Court held by six votes to one that the granting of immunity to Saudi Arabia and its state officials in civil proceedings reflected generally recognised rules of public international law. Therefore, dismissal of the case by the English courts on grounds of state immunity did not amount to a violation of Article 6 (1) of the European Convention on Human Rights which guarantees a right of access to court. In particular, the Chamber held that there was noaccess to court.

According to the Chamber, while there was some emerging support at the international level in favour of a special rule or exception in public international law in cases concerning civil claims for torture lodged a state’s right to immunity could not be circumvented by suing named officials instead. The decision picks up from where the International Court of Justice left off in Jurisdictional Immunities (Germany v. Italy) case in deciding that allegations of violations of jus cogens rules does not mean that state immunity becomes inapplicable. However, the European Court of Human Rights has also stated that in the light of the current developments in this area of public international law, this was a matter which needed to be kept under review by Contracting States.

EJIL:Talk! and Opinio Juris will be providing reactions to this decision over the coming days. Here on EJIL:Talk! Lorna McGregor (Essex University), who worked on the case while she was Legal Adviser at Redress (an NGO that helps torture survivors), and Philippa Webb (Kings College London) will discuss the case. Over at Opinio Juris,  Chimène Keitner, Bill Dodge (both at the University of California, Hastings College of Law) and Ingrid Wuerth (Vanderbilt) will provide commentary from across the pond. All of them have done brilliant work on immunity and all have written influential pieces on the relationship between immunity and human rights. A stellar line up indeed!

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