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Journal articles on the topic 'Article 15 of the European Convention human rights'
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1
Mokhtar, Aly. "Human rights obligations v. derogations: article 15 of the European convention on human rights." International Journal of Human Rights 8, no. 1 (January 2004): 65–87. http://dx.doi.org/10.1080/1364298042000212547.
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Jovičić, Sanja. "COVID-19 restrictions on human rights in the light of the case-law of the European Court of Human Rights." ERA Forum 21, no. 4 (October 6, 2020): 545–60. http://dx.doi.org/10.1007/s12027-020-00630-w.
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AbstractThe aim of this article is to examine the restrictions imposed by European States on individual human rights during the COVID-19 pandemic in the light of the European Convention of Human Rights and Fundamental Freedoms. After an overview of the development of the case-law of the European Court of Human Rights on public emergencies and Article 15 of the Convention, the article will examine how the Court’s case-law could be applied to the current sanitary situation.
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Greene, Alan. "Separating Normalcy from Emergency: The Jurisprudence of Article 15 of the European Convention on Human Rights." German Law Journal 12, no. 10 (October 1, 2011): 1764–85. http://dx.doi.org/10.1017/s2071832200017557.
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The European Convention of Human Rights (ECHR) is as much a political as it is a legal document. The European Court of Human Rights (ECtHR) constantly walks the delicate tight rope between vindicating human rights and respecting the sovereignty of contracting states. This balancing act is particularly sensitive when a situation of “exceptional and imminent danger” exists. In such instances of national security the state may need to act in a manner beyond the parameters of normalcy in order to neutralize the threat and protect both itself and its citizens. Article 15 of the ECHR therefore allows states to derogate from its obligations under the convention when a state of emergency is declared. On foot of a notice of derogation, a state has more discretion and flexibility to act accordingly to respond to a threat without being constrained by its obligations under the treaty. However, it is also in these conditions that human rights are at their most vulnerable as the state's response may encroach severely on individuals' rights and the liberal-democratic order of the state.
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Wallace, Stuart. "Derogations from the European Convention on Human Rights: The Case for Reform." Human Rights Law Review 20, no. 4 (November 26, 2020): 769–96. http://dx.doi.org/10.1093/hrlr/ngaa036.
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Abstract This article examines State practice on derogations from human rights protection during states of emergency under Article 15 of the European Convention on Human Rights. The article presents statistical data on the use of derogations, offers analysis of the data and practice and advances a series of reform proposals. It is argued that Article 15 is being misused by States to derogate for protracted periods of time for entrenched emergencies and that emergency measures are remaining in place after declared emergencies have ended. Equally, States are not derogating in circumstances where they should for military operations, particularly extra-territorial military operations. It is argued that the European Court of Human Rights has been deferential in enforcing Article 15 and that reform is needed to address the problems identified. Reforms should include review procedures for emergency measures, enhanced procedures for notifying derogations and an amendment to facilitate extra-territorial derogations.
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Błachnio-Parzych, Anna. "Gloss to the Judgement of the Court of Justice of the European Union in Case C-524/15, Criminal Proceedings against Luca Menci." Review of European and Comparative Law 45, no. 2 (June 16, 2021): 207–20. http://dx.doi.org/10.31743/recl.11565.
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This gloss discusses the position of the Court of Justice of the European Union taken in the judgment passed on 20 March 2018 in the case of Luca Menci (C-524/15) in reference to the restrictions of ne bis in idem principle. The main thesis of the Court concerned the admissibility of restrictions of ne bis in idem based on the principle of proportionality as a limitation clause and its accordance with the Convention for the Protection of Human Rights and Fundamental Freedoms. The analysis of the right not to be tried or punished twice in Article 4 Protocol 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms allows us to formulate opposite conclusions. The application of the balancing test as a limitation clause for ne bis in idem, finds no support in the case-law of the ECtHR too. According to the Author, the position taken in Menci infringes Article 52(3) of the Charter of Fundamental Rights, according to which the meaning and scope of the rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms shall be at least be the same.
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Cram, Ian. "PROTOCOL 15 AND ARTICLES 10 AND 11 ECHR—THE PARTIAL TRIUMPH OF POLITICAL INCUMBENCY POST-BRIGHTON?" International and Comparative Law Quarterly 67, no. 3 (April 15, 2018): 477–503. http://dx.doi.org/10.1017/s0020589318000118.
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AbstractProtocol 15 inserts a new recital into the Preamble of the European Convention on Human Rights (ECHR) which affirms the primacy of national authorities in securing the effective realization of Convention rights. The article discusses the context for Protocol 15, notably the Brighton Declaration, and the democratic principles it engages. A selective retreat from substantive supranational review towards systemic supranational review in political expression cases may be occurring. The article questions the emerging pattern by which newer and transitional democracies remain subject to strict levels of supranational scrutiny, whilst their more established counterparts look set to be the main beneficiaries.
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Turkut, Emre, and Sabina Garahan. "The ‘reasonable suspicion’ test of Turkey’s post-coup emergency rule under the European Convention on Human Rights." Netherlands Quarterly of Human Rights 38, no. 4 (October 22, 2020): 264–82. http://dx.doi.org/10.1177/0924051920967182.
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Since the 15 July 2016 failed coup, Turkey has seen the mass arrests and detention of hundreds of thousands of individuals; among them are judges and prosecutors, military personnel, police officers, journalists, lawyers, human rights defenders and opposition politicians who have been deprived of their liberty on an array of terrorism-related charges. While this has raised numerous human rights issues, this article focuses on those relating to pre-trial restrictions imposed on the right to liberty and security of individuals during the post-coup state of emergency. Building on the theory and use of the reasonableness concept in the field of pre-trial detention through a particular focus on the ‘reasonable suspicion’ test under Article 5 § 1 (c) of the European Convention on Human Rights (ECHR or the Convention), the article analyses the role of the European Court of Human Rights (the Court or the ECtHR) in enforcing the guarantees of the right to liberty in the Turkish post-coup cases of Mehmet Hasan Altan, Şahin Alpay, Alparslan Altan and Kavala. Against the background of pre-existing Convention standards on pre-trial reasonable suspicion in states of emergency, it finds that the ECtHR has adopted a stronger supervisory stance regarding the compatibility of Turkish post-coup detention practices than the more hesitant approach shown in the prior derogation context of Northern Ireland. While these decisions give some cause for optimism in the hope for a judicial boldness on the part of the ECtHR in condemning Turkey’s arbitrary detention practices during the state of emergency, the article argues that there is further scope for the Court to strengthen its protection in this respect. Notably, despite the positive aspects in the Court’s approach, by continuing to support the notion that the Turkish legal landscape is capable of addressing Article 5 violations and not tackling the underlying structural issues so clearly at play, the Court leaves a glaring gap in rights protection for those seeking justice.
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Kopa, Martin. "The Algorithm of the Margin of Appreciation Doctrine in Light of the Protocol No. 15 Amending the European Convention on Human Rights." International and Comparative Law Review 14, no. 1 (June 1, 2014): 37–53. http://dx.doi.org/10.1515/iclr-2016-0043.
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Abstract European Court of Human Rights applies the margin of appreciation doctrine in order to determine the level of its self-restraint and the latitude of free discretion of states when implementing their Convention obligations. The rationale behind this doctrine is that in certain cases, domestic bodies are in a better position than international judges to provide adequate protection to human rights. In this regard, they should be afforded a margin of appreciation. The Court subsequently only reviews, if the interferences contested by an individual fall within this margin or not. This doctrine was a subject of overwhelming critique because the European Court of Human Rights did not apply it transparently and consistently. Therefore the main goal of this article is to normatively construe an algorithm which could be taken into account by the European Court of Human Rights when applying the doctrine in order to prevent the mentioned critique.
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Mariniello, Triestino. "Prolonged emergency and derogation of human rights: Why the European Court should raise its immunity system." German Law Journal 20, no. 1 (February 2019): 46–71. http://dx.doi.org/10.1017/glj.2019.3.
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AbstractStates of emergency pose the most significant challenges to the safeguarding of fundamental rights and civil liberties. Crises are generally characterized by a strengthening of the executive to the detriment of judicial authority and parliamentary oversight. One of the immediate consequences of emergencies is the absence of effective domestic mechanisms of supervision of the executive. The gradual replacement of the judicial role with police operations represents a symptom of how prolonged emergencies prompt the eclipse of legal certainty and lead to the rapid and irreversible degradation of public institutions.This Article addresses the difficult compromise between defending national interests and protecting individual rights during public emergencies. It analyzes the common features across the recent derogations and exceptional measures of Ukraine, France, and Turkey. The derogations submitted by the three countries in question, together with the exceptional measures adopted for counter-terrorism purposes, substantially restrict several fundamental rights enshrined in the European Convention on Human Rights (Convention). In particular, preventive detention measures, with the suspension of the habeas corpus otherwise approved by the three States, not only enable police forces to use arbitrary and unlimited use of force, but also seriously affect the protection of absolute and non-derogable rights. The Article concludes that, as the recent emergency laws and their widespread and apparently indiscriminate implementation present the risk of destabilizing the whole European system of protection, it becomes ever more necessary that the European Court of Human Rights depart from its previous jurisprudence and adopt a more rigorous and principled scrutiny of the derogation conditions under Article 15 of the Convention.
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Heri, Corina. "Navalnyy v. Russia (Eur. Ct. H.R.)." International Legal Materials 58, no. 2 (April 2019): 315–70. http://dx.doi.org/10.1017/ilm.2019.15.
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On November 15, 2018, the European Court of Human Rights (ECtHR) issued its judgment in Navalnyy v. Russia. The applicant in the case argued that the Russian authorities had targeted him for arrest and administrative sanctions because of his political activism. In its judgment, the Grand Chamber confirmed its recent change in approach to Article 18 of the European Convention on Human Rights (ECHR), including the normalization of the provision's scope and burden of proof. However, it displayed continued uncertainty about how to deal with measures based on a mixture of legitimate and illegitimate purposes.
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N. Simović, Miodrag, Marina M. Simović, and Vladimir M. Simović. "NE BIS IN IDEM PRINCIPLE IN THE CRIMINAL LEGISLATION OF BOSNIA AND HERZEGOVINA AND COURTS’ JURISPRUDENCE." Knowledge International Journal 34, no. 5 (October 4, 2019): 1439–44. http://dx.doi.org/10.35120/kij34051439s.
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The paper is dedicated to ne bis in idem principle, which is a fundamental human right safeguarded by Protocol No. 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms. This principle is sometimes also referred to as double jeopardy.The principle implies that no one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which s/he has already been finally convicted or acquitted (internal ne bis in idem principle), and that in some other State or before the International Court (ne bis in idem principle in respect of the relations between the states or the State and the International Court) the procedure may not be conducted if the person has already been sentenced or acquitted. The identity of the indictable act (idem), the other component of this principle, is more complex and more difficult to be determined than the first one (ne bis).The objective of this principle is to secure the legal certainty of citizens who must be liberated of uncertainty or fear that they would be tried again for the same criminal offence that has already been decided by a final and binding decision. This principle is specific for the accusative and modern system of criminal procedure but not for the investigative criminal procedure, where the possibility for the bindingly finalised criminal procedure to be repeated on the basis of same evidence and regarding the same criminal issue existed. In its legal nature, a circumstance that the proceedings are pending on the same criminal offence against the same accused, represents a negative procedural presumption and, therefore, an obstacle for the further course of proceedings, i.e. it represents the procedural obstacle which prevents an initiation of new criminal procedure for the same criminal case in which the final and binding condemning or acquitting judgement has been passed (exceptio rei iudicatae).The right not to be liable to be tried or punished again for an offence for which s/he has already been finally convicted or acquitted is provided for, primarily, by the International Documents (Article 14, paragraph 7 of the International Covenant on Civil and Political Rights and Article 4 of Protocol No. 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms). The International framework has also been given to ne bis in idem principle through three Conventions adopted by the Council of Europe and those are the European Convention on Extradition and Additional Protocols thereto, the European Convention on the Transfer of Proceedings in Criminal Matters, and the European Convention on the International Validity of Criminal Judgments.Ne bis in idem principle is traditionally associated with the right to a fair trial under Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Likewise, no derogation from Article 4 of Protocol No. 7 shall be made under Article 15 of the Convention at the time of war or other state of emergency which is threatening the survival of the nation (Article 4, paragraph 3 of Protocol No. 7). Thereby it is categorised as the irrevocable conventional right together with the right to life, prohibition of torture, prohibition of slavery, and the legality principle. Similarly, ne bis in idem principle does not apply in the case of the renewed trials by the International criminal courts where the first trial was conducted in some State, while the principle is applicable in the reversed situation. The International Criminal Tribunal for Former Yugoslavia could have conducted a trial even if a person had already been adjudicated in some State, in the cases provided for by its Statute and in the interest of justice.
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Saenko, M. I., V. V. Goloborodko, and V. S. Pleskachova. "Current challenges in the field of human rights protection during the covid-19 pandemic." Uzhhorod National University Herald. Series: Law, no. 64 (August 14, 2021): 61–64. http://dx.doi.org/10.24144/2307-3322.2021.64.11.
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In the articles on the problems of quarantine restrictions during the coronavirus pandemic, ambiguities are identified against epidemiological measures in the legislation of Ukraine. Emphasis is also placed on the violation of international acts ratified by Ukraine and the inconsistency of norms in national and international law.
The normative legal acts of Ukraine are considered, which propose to allow restriction of certain rights and freedoms of man and citizen. The fundamental aspects of the right to protection from pressure on a person, enshrined in the European Convention on Human Rights during an emergency, have been identified.
The key cases that provide an opportunity to derogate from an emergency situation under Article 15 of the European Convention on Human Rights are listed.
Emphasis is placed on the ambiguity of the wording of the terms «public buildings», «public transport» in terms of violation of the rules on human quarantine, sanitary and hygienic, sanitary and anti-epidemic rules and regulations provided by the Law of Ukraine «On Protection of Infectious Diseases» and stay in public buildings, structures, public transport during quarantine without wearing personal protective equipment.
An example from case law on the prescribed restrictions is given based on both interpretations of European and all-Ukrainian law.
It was emphasized that the main act, which has the highest legal force on the territory of Ukraine, was violated in terms of freedom of movement, the right to hold rallies, the right to education and work.
The normative legal act concerning restrictions within Ukraine in connection with the pandemic was analyzed, namely the Resolution of the Cabinet of Ministers of March 11, 2020 №211 “On prevention of the spread of acute respiratory disease COVID-19 caused by the coronavirus SARS-CoV- 2 ”, as well as international experience in the protection of human rights during the COVID-19 pandemic.
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Belavusau, Uladzislau. "Perinçek v. Switzerland (Eur. Ct. H.R.)." International Legal Materials 55, no. 4 (August 2016): 627–719. http://dx.doi.org/10.1017/s0020782900004228.
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On October 15, 2015, the Grand Chamber of the European Court of Human Rights delivered its judgment in the case of Perinçek v. Switzerland. The judgment contested a criminal provision applied in Switzerland against a Turkish politician who had publicly denied a historical fact of the Armenian genocide. Notwithstanding variations in reasoning, the outcome in the Grand Chamber is similar to the previous decision of the Chamber on this case in 2013. The Swiss criminal provision applied in the context of the denial of the Armenian genocide was again found irreconcilable with freedom of expression under Article 10 of the European Convention on Human Rights (ECHR).
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OPOLSKA, Natalya. "LIMITATION OF THE RIGHT TO FREEDOM OF CREATIVITY IN PRECEDENTIAL PRACTICE OF THE EUROPEAN COURT OF HUMAN RIGHTS." "EСONOMY. FINANСES. MANAGEMENT: Topical issues of science and practical activity", no. 1 (41) (January 2019): 187–200. http://dx.doi.org/10.37128/2411-4413-2019-1-15.
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The article examines the main criteria for the legitimacy of restriction the right to freedom of creation in the practice of the European Court of Human Rights, in particular, legitimacy (legality) – the restriction of the right to freedom of creation should be provided for by international and national legislation, the purpose of which is to restrict the right to freedom of creation to be justified, coherent purpose, consistent with the principle proportionality and not to go beyond the bounds of necessity; content – restrictions on the freedom of creation can not be interpreted expanded, correspond to the basic content of freedom of creation and its social purpose. It has been determined that in the practice of the European Court of Human Rights there are various legal positions regarding the restriction of the right to freedom of creation. In order to streamline the practice of applying the Convention, since compliance with the precedent not only meets the requirements of the independence and impartiality of the Court, but also reflects the very essence of judicial policy, consider the most typical decisions of the ECtHR in complaints about limiting the right to freedom of creation. It is concluded that in each case dealt with by the ECtHR, there are grounds for making a decision both in favor of the complainants and in support of governments for limiting the freedom of creativity. The importance of the above mentioned restrictions on the right to freedom of creativity in the case law of the European Court of Human Rights is that: - first, they relate to pressing issues concerning the restriction of freedom of creation, as the competence of the right to freedom of expression, which is enshrined in Art. 10 of the Convention; - second, in the cases cited above, the ECtHR ruled that convictions were not in these cases in violation of Article 10 of the Convention and supported the position of national courts in interfering with freedom of expression of the arts; - Thirdly, the decision of the ECHR points to the absence of a single international concept of "public morality", from which it can be concluded that it is expedient to determine the general tendencies in the development of modern morals of mankind; - fourthly, the decision of the ECtHR in complaints concerning the restriction of the right to freedom of creativity, which infringes religious feelings of the population, norms of social ethics and morals, provided that the state intervention was carried out with a high degree of conviction in its expediency, the court turns to the side national courts. Relevant restrictions on the freedom of creativity are considered legitimate if they are aimed at preventing neglect of the feelings of national minorities or believers in protecting the most vulnerable categories of the audience (children) if there is a danger that they may have access to this information. However, we are talking about well-considered decisions, since under the same slogans censorship and other undemocratic institutions can be introduced, and here the important point of the ECHR as a guarantor of the Convention is considered. It is determined that in the European legal tradition, the freedom of creativity is closely connected with the restrictions, the need for which must be proved with a high degree of their legitimacy (legality), proportionality and expediency (purpose). The analysis of judgments of the European Court of Human Rights concerning the violation of Article 10 of the Convention made it possible to summarize the case law of the ECHR in the area of restricting the right to freedom of creation and to divide it into three groups, depending on the grounds for interference of the states in the freedom of creativity: Restriction of the right to freedom of creativity in order to protect health; Restrictions on the right to freedom of creativity that are necessary in a democratic society in the interests of national security, territorial integrity or public security, in order to prevent riots or crimes; Restriction of the right to freedom of creativity in order to protect the reputation or rights of others. When restricting the right to freedom of creativity in order to protect the health or morals of others, the case law of the ECtHR recognizes a broad discretion by the states. In resolving the question of the limits of state intervention in order to protect public morality, the Court proceeds from the absence of a single coherent international concept of "public morality". The limits of freedom of creativity are set by the states in accordance with the norms of social ethics and morals. Relevant restrictions on the freedom of creativity are considered legitimate if they are aimed at preventing neglect of the feelings of national minorities or believers, to protect the most vulnerable categories of the audience (children), etc. (“Müller and Others v. Switzerland”, "Handyside v. Great Britain", "Otto Preminger v. Austria"). The restrictions on creativity in the practice of the ECHR in cases involving encroachments on the democratic foundations of society in the interests of national security, territorial integrity or public security, in order to prevent riots or crimes are relatively narrower. The precedent of such decisions in assessing the validity of government actions, their determinants of urgent social need, proportionality and compliance with the legitimate aim. When interfering with the right to freedom of creativity, an analysis of the balance between the restrictions that are necessary in a democratic society and the right to freedom of expression are considered. Summing up the practice of the ECHR concerning restrictions on the freedom of creativity that are necessary in a democratic society.
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Puchkova, G. V., and L. P. Bohutska. "INTRODUCTION OF THE INSTITUTION OF PREVIOUSLY EXPRESSED WISHES REGARDING MEDICAL INTERVENTIONS IN MEDICAL LAW OF UKRAINE: STATE AND PROSPECTS." Клінічна та профілактична медицина 1, no. 15 (February 25, 2021): 58–65. http://dx.doi.org/10.31612/2616-4868.1(15).2021.07.
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The aim. The aim of the article is to study the implementation of the principle of autonomy in the medical law of Ukraine, to determine the compliance of the medical legislation of Ukraine with the specified principle in terms of the exercising of the human right to express wishes for the provision of medical care in the future in case if a patient cannot personally express such wishes. Materials and methods. The authors have studied the European standards and practice of the European Court of Human Rights regarding the right of a person to participate in the decision-making process on the provision of medical care, scientific works of specialists in the field of medical law, dedicated to the patient's right to informed consent to medical intervention, the right to refuse treatment and ethical standards of legal regulation of relations with the participation of patients using the formal-logical method, the method of structural analysis, comparative method and legal modeling. Results. The study has found that there are gaps in the normative regulation of the patient's right to participate in the decision-making process in the provision of medical care, which carries a potential danger of violating the right to respect for private and family life, guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms. Conclusions. It is proposed to eliminate these gaps by ratifying the Oviedo Convention by Ukraine, implementation of the institution of previously expressed wishes in the national legislation, determining the mechanism for drawing up, changing and revoking previously expressed medical directives, the designation an authorized person in case a patient is unable to independently express his or her own wishes for the provision of medical care taking into account the European experience, cultural characteristics of Ukrainian society, the state of functioning of the institutional and legal systems and the level of development of biology and medicine.
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Ervo, Laura. "The hidden meanings in the case law of the European Court for Human Rights." Semiotica 2016, no. 209 (March 1, 2016): 209–30. http://dx.doi.org/10.1515/sem-2016-0009.
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AbstractIn my paper, I will study the case law of the European Court of Human Rights by using discourse analysis as a method. My hypothesis is that the court has changed its line concerning the right to a fair trial (in article 6 of the European Convention for Human Rights) over the last twenty years. Earlier, it always defended the rights of the accused and the authorities’ problems, for instance, in fact gathering, were recessive. The same covered the rights of the witnesses even if the court usually confessed that also the witness has their rights, which should be respected. It also stressed that authorities of course have difficulties with proof – for example – the offences that are connected with the organized crime. Still, the rights of defense were always number one and inviolate. During recent years, the line seems to have changed even if the court has not transparently said so. However, it has given some new precedents by the Grand Chamber where the rights of the defense have been limited more than before; for instance, the cases Jalloh v. Germany (11 July 2006), Gäfgen v. Germany (1 June 2010), and Al-Khawaja and Tahery v. Great Britain (15 December 2011). The expressions used in case law show that the way of thinking has changed as well. Still, the changes are sometimes more hidden than transparent where discourse analysis is the only tool for catching the changes and showing differences in the thinking of the court.
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Brayson, Kimberley. "Securing the Future of the European Court of Human Rights in the Face of uk Opposition." International Human Rights Law Review 6, no. 1 (May 24, 2017): 53–85. http://dx.doi.org/10.1163/22131035-00601001.
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This article highlights transnational consequences for access to justice of political posturing by national governments in respect of the European Convention on Human Rights (echr). It charts the uk context preceding the adoption of Protocol 15, which inserts the concepts of subsidiarity and the margin of appreciation into the echr preamble. The article argues that whilst this was an attempt to curb the European Court of Human Rights’ (ECtHR) powers, this proved limited in effect, as the court is too well established as a Supreme Court for Europe in the cosmopolitan legal order of the echr. The political-legal interplay which is the genesis of the echr system means that political manoeuvring from national governments is inevitable, but not fatal to its existence. However, the legitimacy of the ECtHR is secured only through political concessions, which act to expel surplus subjects from echr protection. The article concludes that the legitimacy of the ECtHR is therefore secured at the cost of individuals whose rights are worth less than the future of the court.
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Slingenberg, Lieneke. "J. N. v. Staatssecretaris voor Veiligheid en Justitie (C.J.E.U.)." International Legal Materials 56, no. 5 (October 2017): 931–50. http://dx.doi.org/10.1017/ilm.2017.33.
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On February 15, 2016, the Grand Chamber of the Court of Justice of the European Union (CJEU or the Court) delivered its preliminary ruling in a case about the detention of Mr. N. Mr. N. was detained pending the examination of his (fourth) asylum application and claimed that his detention was in violation of Article 5 of the European Convention on Human Rights (ECHR). Since his detention was provided for in relevant EU legislation, the question referred to the CJEU was about the validity of this EU legislation.
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Nguyen, Ho Bich Hang, and Katja Weckström Lindroos. "The Regulation of Farmer’s Privilege Under Vietnamese IP Law and the Law of the European Union." IIC - International Review of Intellectual Property and Competition Law 52, no. 6 (March 30, 2021): 677–705. http://dx.doi.org/10.1007/s40319-021-01043-z.
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AbstractThe International Union for the Protection of New Varieties of Plants Convention 1991 (UPOV Convention) recognizes the need to protect plant breeders’ legitimate interests. Without breeders’ innovations, new high-productivity plant varieties can neither be created nor contribute to society as a whole. Without these new varieties, it is impossible to create new high-yield generations of plants for the benefit of society. The absolute protection of breeders’ rights, however, would create many negative impacts for society. In particular, farmers would have to pay higher prices for seeds if breeders’ exclusive rights were to be overprotected, which would also mean consumers having to pay more for basic foodstuffs. This would lead to food insecurity nationally or even globally, in contravention of the right to food as recognized by Art. 25 of the United Nations Universal Declaration of Human Rights in 1948. These situations represent the dilemmas that governments have to cope with in developing national economies. The concept of farmer’s privilege is an exemption that the UPOV Convention recognizes in order to balance benefits between breeders and farmers. Under the optional exception set out in Art. 15(2) of the UPOV Convention, Contracting Parties may adopt the farmer’s privilege exemption in national law. Vietnam’s Law on Intellectual Property contains the farmer’s privilege exemption, yet there are many loopholes regarding this provision, and in reality, its application is limited. This article analyzes European Union regulation on farmer’s privilege and the way in which this exception has been interpreted, and compares and applies it to the Vietnamese law.
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Djajic, Sanja. "Temporal jurisdiction of international judicial and arbitral courts." Zbornik Matice srpske za drustvene nauke, no. 135 (2011): 211–30. http://dx.doi.org/10.2298/zmsdn1135011d.
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Author explores different temporal aspects of jurisdiction of International Court of Justice, European Court for Human Rights and international investment arbitrations. Temporal limitations are two-fold: non-retroactivity of international acts, on one hand, and ratione temporis conditions for each and every international forum, on the other. Despite differences courts tend to conceptualize common elements across the borders of different jurisdictional rules. The rule of non-retroactivity will find its application before different fora, but discrepancies will emerge with respect to concepts of continuous and composite acts which potentially may overcome temporal limitations. This article explores intertemporal rule and non-retroactivity within the meaning of Article 28 of the Vienna Convention on the Law of Treaties and Articles 13-15 of ILC Articles on State Responsibility.
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Vetzo, Max. "The Past, Present and Future of the Ne Bis In Idem Dialogue between the Court of Justice of the European Union and the European Court of Human Rights: The Cases of Menci, Garlsson and Di Puma." Review of European Administrative Law 11, no. 2 (December 31, 2018): 55–84. http://dx.doi.org/10.7590/187479818x15481611819868.
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The cases of Menci (C-524/15), Garlsson (C-537/16) and Di Puma (C-596/16 and C-597/16) deal with the duplication of criminal and punitive administrative proceedings for the same conduct in the area of VAT and market abuse. The Court of Justice of the European Union (CJEU) held that this duplication of proceedings constitutes a limitation of the ne bis in idem principle of Article 50 of the Charter of Fundamental Rights (Charter). This infringement is only justified if the requirements of the limitation clause of Article 52(1) of the Charter are met. The judgments were highly anticipated as they constitute the response of the CJEU to the judgment in A and B v Norway delivered by the European Court of Human Rights (ECtHR), in which the ECtHR lowered the level of protection afforded by the ne bis in idem principle of Article 4 of Protocol No. 7 to the European Convention of Human Rights (A4P7 ECHR). While there are differences between the approaches taken by both courts, it appears that the reasoning of the CJEU in the judgments largely mirrors that of the ECtHR in A and B v Norway. This article frames the judgments in terms of the dialogue between the CJEU and ECtHR on the ne bis in idem principle. It does so chronologically, by focusing on the past, present and future of the ne bis in idem dialogue between both European courts.
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Goldenziel, Jill I. "Khlaifia and Others v. Italy." American Journal of International Law 112, no. 2 (April 2018): 274–80. http://dx.doi.org/10.1017/ajil.2018.28.
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In Khlaifia and Others v. Italy, the Grand Chamber of the European Court of Human Rights (Grand Chamber or Court) released a landmark opinion with broad implications for how states must respect the individual rights of migrants. In the judgment, issued on December 15, 2016, the Court held that Italy's treatment of migrants after the Arab Spring violated the requirement of the European Convention on Human Rights (ECHR) that migrants receive procedural guarantees that enable them to challenge their detention and expulsion. The Court also held that Italy's treatment of migrants in detention centers did not violate the ECHR's prohibition on cruel and inhuman treatment, in part due to the emergency circumstances involved. The Court further held that Italy's return of migrants to Tunisia did not violate the prohibition on collective expulsion in Article 4 of Protocol 4 of the ECHR. Enforcement of the judgment would require many European states to provide a clear basis in domestic law for the detention of migrants and asylum-seekers. Given the global diffusion of state practices involving migrants, and other states’ desires to restrict migration, this case has broad implications for delineating the obligations of states to migrants and the rights of migrants within receiving countries.
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Gross, Oren, and Fionnuala Ni Aolain. "From Discretion to Scrutiny: Revisiting the Application of the Margin of Appreciation Doctrine in the Context of Article 15 of the European Convention on Human Rights." Human Rights Quarterly 23, no. 3 (2001): 625–49. http://dx.doi.org/10.1353/hrq.2001.0035.
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Zaphiriou, George A. "Article 15 of the European Convention on Human Rights: Theoretical and Jurisprudential Approach. By Paroula Naskou-Perraki. Athens: Editions A. Sakkoulas, 1987. Pp. xxiv, 276. In Greek." American Journal of International Law 84, no. 2 (April 1990): 607–9. http://dx.doi.org/10.2307/2203484.
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Abell, Nazaré Albuquerque. "Safe Country Provisions in Canada and in the European Union: A Critical Assessment." International Migration Review 31, no. 3 (September 1997): 569–90. http://dx.doi.org/10.1177/019791839703100302.
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This article analyzes the international legal framework that surrounds the issue of safe third country (STC) in the European Union and in Canada. The argument put forward is that Canada is not immune to the developments in the European Union and that Canada's immigration policies towards refugees have changed accordingly. My position is that the Canadian model respects the legal constraints which govern the acceptability of mechanisms to apportion responsibility to examine a claim to refugee status, in particular the Canadian Charter of Rights and Freedoms. By testing the international legal viability of both the European and the Canadian system of safe third country against Articles 31 and 33 of the Geneva Convention and Executive Committee Conclusion No. 58 and Conclusion No. 15, and by addressing the draft Memorandum of Understanding between Canada and the United States and comparing it with some of the readmission agreements between the European Union and some third states, the article concludes that the Canadian STC model is preferable to that in Europe from both a legal and a humane point of view.
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Attila, Tanzi. "Reducing the Gap between International Water Law and Human Rights Law: The UNECE Protocol on Water and Health." International Community Law Review 12, no. 3 (2010): 267–85. http://dx.doi.org/10.1163/187197310x513707.
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AbstractThis article addresses the different approaches to access to water and sanitation by two separate bodies of international law, i.e. water law and human rights law. It shows the slow evolution of the former from a purely inter-State economic dimension, dealing with competing sovereign claims over transboundary watercourses, to one concerned also the needs of peoples and individuals. In light of these developments at the customary level, it illustrates the significant progress in the field at the conventional and Pan-European level represented by the 1999 UN/ECE London Protocol on Water and Health. An analysis of the latter is carried out against the background of the authoritative interpretation of Articles 11 and 12 of the 1966 UN Covenant on Economic, Social and Cultural Rights contained in the 2002 General Comment 15 by the Committee of the Covenant. This comparative analysis shows the full complementarity and, in many respects, even the coincidence between those instruments. From a normative structural point of view, the common denominator between them appears to lie in the due diligence nature of their main obligations enhancing the state legal accountability for water services.
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Ruiz Ruiz, Juan José. "El refuerzo del diálogo entre tribunales y la triple prejudicialidad en la protección de los derechos fundamentales: en torno al Protocolo n.º 16 al Convenio Europeo de Derechos Humanos." Teoría y Realidad Constitucional, no. 42 (January 30, 2019): 453. http://dx.doi.org/10.5944/trc.42.2018.23639.
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La adopción de los Protocolos 15 y 16 ha culminado un nuevo proceso de reflexión sobre las deficiencias y transformaciones que habrá de afrontar en los próximos decenios el sistema de protección del Convenio Europeo de Derechos Humanos. El nuevo Protocolo, bautizado el Protocolo 16 como el «protocolo del diálogo» incorpora una novedosa «vía incidental de diálogo» en el marco del control de convencionalidad, vía que viene a sumarse a las vías incidentales ya existentes en el marco de los controles de incidentales en aplicación del Derecho de la Unión Europea (UE) y en el marco del control de constitucionalidad. Este artículo dedica especial atención a la creciente complejidad de cuestión prejudicial convencional traerá en aquellos sistemas en los que hay una cuestión previa de constitucionalidad y la cuestión prejudicial en virtud del Derecho de la UE. El reenvío que incorpora el Protocolo 16 puede convertirse en una valiosa herramienta en el proceso de cooperación y propulsión de la coherencia del circuito jurisprudencial construido a partir de la circularidad de interpretaciones conformes de Tribunal Constitucional, Tribunal de Justicia de la UE y TEDH. La inserción de una nueva cuestión prejudicial no traerá por ello consigo una disminución en la autonomía del juez nacional, sino que debe ser vista como una garantía más de la triple tutela de derechos que se superponen y que tiene como regla esencial la del mejor standard de protección a partir de una disputa discursiva construida sobre la mejor solución.The adoption of the Protocols 15 and 16 to the ECHR has completed a new process of reflection on the shortcomings and transformations that the protection system of the European Convention on Human Rights will face in the coming decades. The new protocol, named the «protocol of dialogue», incorporates a novel «incidental procedure of dialogue » in the framework of the conventionality control, a procedure in addition to preliminary questions which already exist under European Union law (EU) and in the framework of constitutional control. This article aims to address particular reference to the increasing complexity that Conventional preliminary procedure will bring in those systems in which there are a preliminary question of constitutionality and the preliminary reference procedure on the interpretation of EU law. The preliminary reference procedure enacted by Protocol 16 can become a valuable tool in the process of cooperation and coherence propulsion of jurisprudential circuit, built from the circularity of conforming interpretations of the Constitutional Court, Court of Justice of the EU and ECtHR. The new preliminary question will not bring a reduction in the autonomy of national jurisdiction, but should be seen as a further guarantee of the triple protection of rights that overlap and whose essential rule is «the best standard of protection» from the starting point of a discursive argument founded on the best solution.
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Boyle, Kevin. "The European Experience: The European Convention on Human Rights." Victoria University of Wellington Law Review 40, no. 1 (June 1, 2009): 167. http://dx.doi.org/10.26686/vuwlr.v40i1.5384.
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This article focuses on the European Convention on Human Rights and its Court of Human Rights. It explains the relationship between the Council of Europe, the Convention, and the Court as a system that is also a working example of a regional human rights mechanism. Some important rights and freedoms affirmed under the Convention are detailed, as is the impact of the Court's decisions on other judicial bodies. The article also comments on some future challenges for the Court.
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Altiparmak, Kerem, and Onur Karahanogullari. "European Court of Human Rights." European Constitutional Law Review 2, no. 2 (June 2006): 268–92. http://dx.doi.org/10.1017/s1574019606002689.
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On 10 November 2005 the Grand Chamber of the European Court of Human Rights (‘Court’) decided the long-running headscarf battle between Muslim students and Turkish universities in the Şahin judgment. On appeal, it held that the prohibition against wearing headscarves on university premises did not violate Article 9 of the European Convention on Human Rights (‘Convention’) on freedom of thought, conscience and religion. It thereby confirmed the decision of the Fourth Section of the Court of 29 June 2004.
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Leloup, Mathieu. "The Concept of Structural Human Rights in the European Convention on Human Rights." Human Rights Law Review 20, no. 3 (September 2020): 480–501. http://dx.doi.org/10.1093/hrlr/ngaa024.
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ABSTRACT This article introduces the concept of structural human rights in the context of the European Convention on Human Rights. It starts from the observation that the current understanding of human rights obligations does not account for all the effects that the judgments of the European Court of Human Rights have in practice. To comply with their obligations under the Convention, States Parties may be required to modify their very institutional architecture. The article argues that this is a consequence of structural human rights. These are fundamental rights that, when enforced, may impose structural obligations, requiring changes to a State's governmental structure. The article offers a theoretical underpinning of the concept and indicates the benefits of understanding Convention rights also in a structural way. Furthermore, the notion is conceptualised further by way of an overview of several strands of case law, demonstrating the way in which Convention rights can develop their structural nature and what kind of structural effects they may have.
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Gillespie, Alisdair A., and Vanessa Bettinson. "‘Indecent’ Images: European Convention on Human Rights, Article 7." Journal of Criminal Law 70, no. 2 (April 2006): 127–30. http://dx.doi.org/10.1350/jcla.2006.70.2.127.
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TULKENS, FRANÇOISE. "Human rights, rhetoric or reality?" European Review 9, no. 2 (May 2001): 125–34. http://dx.doi.org/10.1017/s1062798701000126.
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The question of effectiveness is the main theme of this article, notably as this refers to the rights contained in the European Convention on Human Rights and Fundamental Freedoms and to the main issues at stake today. The second part of the article, explains the role played by the European Convention on Human Rights among all the universal and regional instruments for the protection of human rights. Finally there is a critical look at what might be termed a degree of ‘inflation’ of the fundamental rights.
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Roberts, Andy. "Covert Video Identification: European Convention on Human Rights, Article 8." Journal of Criminal Law 67, no. 6 (December 2003): 480–85. http://dx.doi.org/10.1350/jcla.67.6.480.19431.
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Gale, Christopher. "Prison: Early Release; European Convention on Human Rights, Article 14." Journal of Criminal Law 68, no. 4 (August 2004): 273–75. http://dx.doi.org/10.1350/jcla.68.4.273.36524.
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Wildhaber, Luzius. "The European Convention on Human Rights and International Law." International and Comparative Law Quarterly 56, no. 2 (April 2007): 217–31. http://dx.doi.org/10.1093/iclq/lei163.
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AbstractThis article is an expanded and footnoted version of the lectur given at the British Institute of International and Comparative Law on Tuesday 21 March 2006, entitled ‘International Law in the European Court of Human Rights’.The article begins with some comparative comments on the application of the European Convention on Human Rights in monistic and dualistic systems It then discusses in detail the European Court's case law which confirms that the Convention, despite its special character as a human rights treaty, is indeed part of public international law. It concludes that the Convention and international law find themselves in a kind of interactive mutual relationship. checking and buildine on each other.
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McGlynn, Clare. "RAPE, TORTURE AND THE EUROPEAN CONVENTION ON HUMAN RIGHTS." International and Comparative Law Quarterly 58, no. 3 (July 2009): 565–95. http://dx.doi.org/10.1017/s0020589309001195.
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AbstractThis article examines the legacy of the ground-breaking judgment in Aydin v Turkey in which the European Court of Human Rights held that rape could constitute torture. Ten years on, it examines jurisprudential developments in the conceptualisation of torture in the specific context of the offence of rape. It is argued that while all rapes should be found to satisfy the minimum threshold for Article 3, rape does not per se satisfy the severity of harm criterion for torture. Nonetheless, where the severity of harm is established, the case is made that the purposive element of torture is satisfied in all cases of rape. Finally, in relation to the scope of State responsibility for rape, particularly by private individuals, the article suggests that while the Court's achievements in recognizing rape as a serious harm are considerable, there remain further avenues for jurisprudential development which would ensure that rape as a form of torture is recognized in a wider range of situations and circumstances than is currently the case.
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Addo, M. K., and N. Grief. "Does Article 3 of The European Convention on Human Rights Enshrine Absolute Rights?" European Journal of International Law 9, no. 3 (January 1, 1998): 510–24. http://dx.doi.org/10.1093/ejil/9.3.510.
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Sikuta, Jan. "Threats of Terrorism and the European Court of Human Rights." European Journal of Migration and Law 10, no. 1 (2008): 1–10. http://dx.doi.org/10.1163/138836407x261317.
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AbstractThis contribution is aiming to provide a reader with a brief overview of selected relevant case-law of the European Court of Human Rights in Strasbourg ("the Court"), somehow relating to the acts of terrorism. It shows the evolution of the Courts case-law from the very first case of Lawless v. Ireland, lodged to the Court in 1959, through the case of Osman v. UK, involving the positive obligation of a State to protect the life of its citizens and case of Ocalan v. Turkey, up to the case of Cetin and Others v. Turkey, dealing with terrorism and media (Article 10 of the Convention).The aim of this contribution is also to give a very brief views on the issue of terrorism from the aspects of different provisions of the Convention, starting with the Article 1 of the Convention and ending with Article 10 of the Convention, in order to provide participants of the Conference with short, but rather "plastic" picture of the Courts' case-law related to the mentioned issue.
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Foster, Steve. "The protection of human rights in domestic law: learning lessons from the European Court of Human Rights." Northern Ireland Legal Quarterly 53, no. 3 (July 17, 2020): 232–67. http://dx.doi.org/10.53386/nilq.v53i3.697.
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The Human Rights Act 1998 came into force in October 2000, its purpose to allow victims of alleged violations of rights contained in the European Convention on Human Rights (1950) to pursue a remedy in the domestic courts. Thus, central to the Act’s purpose is to enable the access of the rights and remedies already provided by the machinery of the European Convention, subject only to those provisions of the Act which seek to retain the principle of parliamentary sovereignty. The purpose of this article is to study the case law of the European Court of Human Rights in relation to cases brought against the United Kingdom in order to examine the United Kingdom’s record under the Convention and, hopefully, of identifying common themes of human rights violations for which the United Kingdom has consistently been held responsible, and for which they may remain vulnerable to challenge in the future. At this stage it will be submitted that the European Convention has exposed the limitations of human rights protection in domestic law, and that on many occasions both the courts and Parliament have failed to adopt the necessary jurisprudence of the European Court in their respective roles. Finally, in the light of that evidence the article will examine the provisions of the Human Rights Act 1998 in order to assess the likely impact of that Act on the protection of rights and liberties in the United Kingdom.
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Curtice, Martin. "The European Convention on Human Rights: an update on Article 3 case law." Advances in Psychiatric Treatment 16, no. 3 (May 2010): 199–206. http://dx.doi.org/10.1192/apt.bp.109.006825.
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SummaryThe European Convention on Human Rights and the Human Rights Act 1998 (which enacts most of the Convention rights into UK law) are playing an ever-increasing role in determining the standards of treatment of those detained by the state and hence is of particular importance for those in hospitals, prisons or similar institutions. The European Convention on Human Rights is a ‘living instrument’ such that judgments emanating from the European Court of Human Rights will continually build upon previous jurisprudence and evolve over time. As Article 3 case law has evolved, its interpretation has broadened to now include a thorough scrutiny of hospital and prison conditions and healthcare provision where people are kept in detention. This article provides an in-depth update on recent Article 3 case law, but more importantly describes new developments in its application in the clinical setting.
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Beaumont, Paul, Katarina Trimmings, Lara Walker, and Jayne Holliday. "CHILD ABDUCTION: RECENT JURISPRUDENCE OF THE EUROPEAN COURT OF HUMAN RIGHTS." International and Comparative Law Quarterly 64, no. 1 (January 2015): 39–63. http://dx.doi.org/10.1017/s0020589314000566.
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AbstractThis article examines how the European Court of Human Rights has clarified its jurisprudence on how the 1980 Hague Child Abduction Convention Article 13 exceptions are to be applied in a manner that is consistent with Article 8 of the European Convention on Human Rights. It also analyses recent case law of the European Court of Human Rights on how the courts in the EU are to handle child abduction cases where the courts of the habitual residence have made use of their power under Article 11 of Brussels IIa.
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Lundmark, Mikael. "The European Court of Human Rights and the Protection of Arctic Indigenous Peoples Rights." Yearbook of Polar Law Online 9, no. 1 (December 8, 2018): 24–52. http://dx.doi.org/10.1163/22116427_009010003.
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Based on an ongoing case in Sweden, where Girjas Sami village sued the Swedish state for violation of property rights, this article examines the European Court of Human Rights’ potential influence in the Arctic region’s legal system when it comes to protection of property of Arctic indigenous peoples. This article shows that notwithstanding the historical background of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the case law of the Court provides a solid foundation to advocate that the Court can take a more active role in protecting the rights of Arctic indigenous peoples. What is different in the case of indigenous peoples is that their rights pre-exist that of a modern state, and this does not correlate with the structure of the Convention, which seemingly leads to less protection under the Convention for indigenous peoples. This puts a higher level of responsibility both upon the applicants, as well as on the Court to scrutinize, and apply, the case law of the Court in line with the Convention and the adopted principle of interpretation.
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Bureš, Pavel. "Evolution interpretation and the European consensus before the European court of human rights." Espaço Jurídico Journal of Law [EJJL] 20, no. 1 (June 28, 2019): 73–84. http://dx.doi.org/10.18593/ejjl.20214.
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The interpretation of the European convention on human rights has been shaped by rich jurisprudence of the European Court of human rights which on several occasions had to resort to so-called evolutive interpretation based on the concept of European consensus. This article focuses on basic elements of the interpretation of the Convention ant its position in the application of conventional rights. It gives first a general historical presentation, then deals with different perspectives playing a role for a better understanding of evolutive interpretation and finishes with a general presentation of European consensus which is a key element for evolutive interpretation.
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Ziemele, Ineta. "Case Law of the European Court of Human Rights as a Source of Human Rights Law." Baltic Yearbook of International Law Online 17, no. 1 (December 20, 2020): 143–65. http://dx.doi.org/10.1163/22115897_01701_008.
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The European Court of Human Rights with its case law has been for decades a particularly important actor in developing human rights law in Europe and beyond. At the same time the question as to the legal nature of its case law has not received a single answer. Most traditionally, the answer to this question has been that case law is binding on all States parties to the Convention at least to the extent that it contains lex interpretata as part of the Court’s authoritative interpretation of the Convention entrusted to it by the founding States of the Convention regime. In accordance with the Convention’s Article 46, judgments of the Court are binding on the respondent State. At the same time, judgments are followed more generally by the Contracting Parties while the Court’s case law has added to the original – admittedly open-ended – text of the Convention. This article explores the impact of civil law tradition, Anglo-Saxon tradition and the theory of sources of international law on better conceptualization of the legal nature of the case law of the Court. It arrives at the conclusion that at least for the time being, there is a coherent tendency in more advanced legal systems to acknowledge that the courts and judges do occasionally make law. The example of the European Court of Human Rights goes along with these developments. It is argued that case law is a material source of law while the overall consolidation of the Convention system begs for the conclusion that the Court’s case law has become a formal source of law.
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Perrone, Roberto. "Public Morals and the European Convention on Human Rights." Israel Law Review 47, no. 3 (October 2, 2014): 361–78. http://dx.doi.org/10.1017/s0021223714000144.
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The protection of ‘morals’ appears frequently as a limitation on the exercise of fundamental rights, both in international covenants and in constitutional charters. The European Convention for the Protection of Human Rights is not an exception, and ‘public morals’ may be called upon to justify the restriction of several important rights granted by the Convention, such as freedom of expression or the right to respect for private and family life. To avoid arbitrary restrictions of these rights it is important to understand the meaning of this general clause. This article aims to suggest a reading of the ‘public morals’ clause that singles out its scope and its boundaries.
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Edge, Peter W. "The European Court of Human Rights and Religious Rights." International and Comparative Law Quarterly 47, no. 3 (July 1998): 680–87. http://dx.doi.org/10.1017/s0020589300062230.
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Article 9 of the European Convention on Human Rights provides:1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
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Altwicker, Tilmann. "Non-Universal Arguments under the European Convention on Human Rights." European Journal of International Law 31, no. 1 (February 2020): 101–26. http://dx.doi.org/10.1093/ejil/chaa015.
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Abstract It is popular to view international human rights law as universal. In a normative sense, human rights universality refers to certain qualities of human rights norms. These qualities have long been under attack, most recently by what is called here human rights nationalism. The main point made in this article is that some of the criticism levelled against normative human rights universality can be accommodated through interpretation. To this end, non-universality of human rights is judicially created (argumentative non-universality). This article offers an analysis of argumentative non-universality in the context of the European Convention on Human Rights (ECHR). It shows that the European Court of Human Rights (ECtHR) operationalizes argumentative non-universality through a conception of asymmetric protection, by using context as a difference-making fact and by allowing, in certain cases, for a decentralized interpretation of rights under the ECHR. As argued here, resorting to argumentative non-universality sometimes makes sense because non-universality takes seriously the fact that individual freedom is, to some extent, socially and politically conditioned. Furthermore, non-universality allows for reasonable interpretive pluralism, and it contributes to the institutional legitimacy of the ECtHR. In conclusion, the ECtHR is, rightly so, an ‘interpreter of universality’ (as quoted by Judge Pinto de Albuquerque) as it is an interpreter of the non-universality of convention rights.
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Seminara, Letizia. "Risk Regulation and the European Convention on Human Rights." European Journal of Risk Regulation 7, no. 4 (December 2016): 733–49. http://dx.doi.org/10.1017/s1867299x00010163.
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AbstractEuropean law of risk regulation is commonly intended to be limited to the European regulation in the internal market. However, risk is also regulated in Europe by human rights law, which is often left aside in this area. In fact, disregard for the risk entailed by certain manmade activities as well as by natural events, may imply restrictions to, inter alia, the right to life and the right to respect for private and family life enshrined in the European Convention on Human Rights. This article aims at studying the manner in which this Convention regulates risk through human rights norms. It provides an overview of the standards set by the European Court of Human Rights in this field.
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Arnardóttir, Oddný Mjöll. "Vulnerability under Article 14 of the European Convention on Human Rights." Oslo Law Review 1, no. 03 (December 15, 2017): 150–71. http://dx.doi.org/10.18261/issn.2387-3299-2017-03-03.
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Spencer, J. R. "INCEST AND ARTICLE 8 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS." Cambridge Law Journal 72, no. 1 (March 2013): 5–7. http://dx.doi.org/10.1017/s0008197313000196.
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