Reevaluating Regional Human Rights Litigation in the Twenty-First Century: The Case of the Inter-American Court

2008 ◽  
Vol 102 (4) ◽  
pp. 768-827 ◽  
Author(s):  
James L. Cavallaro ◽  
Stephanie Erin Brewer
Keyword(s):  
Human Rights ◽  
Union Member ◽  
First Century ◽  
African Union ◽  
Member States ◽  
The Past ◽  
European Court ◽  
Twenty First Century

Over the past few decades, regional human rights tribunals have grown in both number and activity. The European Court of Human Rights (European Court or ECHR) now receives tens of thousands of petitions and issues over fifteen hundred judgments on the merits each year. The Inter-American Court of Human Rights recently tripled the number of cases that it resolves annually. At the time of this writing, in mid-2008, Africa’s own regional human rights court, the African Court on Human and Peoples’ Rights, prepares to begin hearing its first contentious cases. Currently, sixty-eight states are subject to the decisions of the two established regional courts (forty-seven in Europe and twenty-one in the Americas), up from less than half that number twenty years ago. In the nascent African system, twenty-four African Union member states have ratified the Protocol establishing the African Court, with an additional twenty-five signatory states.

scholarly journals Castaño avoids a clash between the ECtHR and the CJEU, but erodes Soering. Thinking human rights transnationally

2020 ◽  
pp. 203228442097974
Author(s):  
Sibel Top ◽  
Paul De Hert
Keyword(s):  
European Union ◽  
Human Rights ◽  
Union Member ◽  
The European Union ◽  
Member States ◽  
Court Of Justice ◽  
European Court ◽  
Criminal Matters ◽  
European Union Member States

This article examines the changing balance established by the European Court of Human Rights (ECtHR) between human rights filters to extradition and the obligation to cooperate and how this shift of rationale brought the Court closer to the position of the Court of Justice of the European Union (CJEU) in that respect. The article argues that the ECtHR initially adopted a position whereby it prioritised human rights concerns over extraditions, but that it later nuanced that approach by establishing, in some cases, an obligation to cooperate to ensure proper respect of human rights. This refinement of its position brought the ECtHR closer to the approach adopted by the CJEU that traditionally put the obligation to cooperate above human rights concerns. In recent years, however, the CJEU also backtracked to some extent from its uncompromising attitude on the obligation to cooperate, which enabled a convergence of the rationales of the two Courts. Although this alignment of the Courts was necessary to mitigate the conflicting obligations of European Union Member States towards both Courts, this article warns against the danger of making too many human rights concessions to cooperation in criminal matters.

The European Court of Human Rights in Search of Lost Time: an evolutionary interpretation

2021 ◽  
Vol 11 (3) ◽  
pp. 75-104
Author(s):  
Tigran Oganesian
Keyword(s):  
Human Rights ◽  
Case Law ◽  
First Century ◽  
Common Denominator ◽  
Member States ◽  
Textual Interpretation ◽  
European Court ◽  
Subjective Factor ◽  
Lost Time ◽  
Evolutionary Interpretation

Time is central to the case law of the European Court of Human Rights. By monitoring the effectiveness of the Convention’s system, the European Court of Human Rights (ECHR) tries to maintain relevancy and respond to new challenges. The author notes that the evolutionary interpretation is a method that provides the ECHR with the necessary degree of flexibility to ensure that the implementation of the rights is guaranteed by the Convention. Throughout this comparative analysis, the author emphasises that due to the peculiarities and differences in the legal culture of the respondent States, it is can be extremely difficult for the Court to promote a progressive interpretation of the Convention’s rules, even if it is consistent with the objectives of the Convention. In this regard, the Court’s decision in the Tyrer case is the embodiment of the philosophy of the living instrument. However, the Court presented a model of evolutionary interpretation and failed to immediately demonstrate how it works and will work in the future, which gave rise to a significant part of the criticism. As part of the critical views’ analysis on the application of the ECHR’s evolutionary interpretation, the author highlights that one way to overcome the subjective factor in evolutionary interpretation is the European consensus. This allows the Court to base its decisions on the “common denominator”, that is, not on the judges’ personal preferences, but on the existing consensus among the member States on any given issue. Considering this from a dialogical approach, the author proposes to consider consensus as a form of dialogue that flows from Member States to the Court on the question of what they believe should be the proper settlement of convention rights. The analysis of the application of the evolutionary method’s interpretation by other international courts is carried out, thus proving that the evolutionary interpretation is not merely a figment of the Strasbourg Court’s imagination and nor is it the result of judicial activism, but instead it is the consequence of today’s necessity. The author emphasises that a static understanding of rights and freedoms cannot guarantee the effectiveness of any system of international justice. The textual interpretation of the Convention is blind to contemporary developments and unjustifiably ignores the changed nature of human rights in the twenty-first century. On a practical level, it is likely that politically sensitive decisions will continue to provoke internal criticism. In the final part of the article, the author draws an analogy with Proust’s In Search of Lost Time, noting that the evolutionary interpretation is a kind of formula for the search for time, which simultaneously combines both the past and the present, and is a necessary formula for maintaining the effectiveness and relevance of the conventional system.

Soft Power: Hwang and Tesori’s reappropriation of The King and I in representing twenty-first-century diplomacy and the dystopic reality of contemporary America

2019 ◽  
Vol 13 (3) ◽  
pp. 269-282 ◽  
Author(s):  
Arnab Banerji
Keyword(s):  
Human Rights ◽  
Soft Power ◽  
Public Diplomacy ◽  
First Century ◽  
The Past ◽  
David Henry Hwang ◽  
Twenty First Century ◽  
Asian Stereotypes

This article reviews David Henry Hwang and Jeanine Tesori’s Soft Power. In this ‘play with a musical’, Hwang and Tesori revisit Rodgers and Hammerstein’s The King and I to critique its Asian stereotypes. The genre-bending form is, however, much more than a simple retelling of a flawed musical of the past. As the article demonstrates, the writers question China’s attempts at public diplomacy and its efforts to acquire soft power vis a vis its dismal human rights records. The play does so by not merely reversing the narrative of The King and I but by offering a nuanced take on twenty-first-century politics. In doing so, the writers create a scathing portrayal of American reality set against a backdrop of contemporary events.

scholarly journals The 2007 African Charter on Democracy, Elections and Governance: Trying to Make Sense of the Late Ratification of the African Charter and Non-Implementation of Its Compliance Mechanism

2019 ◽  
Vol 54 (2) ◽  
pp. 127-146
Author(s):  
Ulf Engel
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Union Member ◽  
African Union ◽  
Member States ◽  
The Rule Of Law ◽  
Universal Values ◽  
Compliance Mechanism ◽  
African Charter ◽  
Governance Architecture

In principle, the 2007 African Charter on Democracy, Elections and Governance (ACDEG) could be a powerful instrument to bring the African Governance Architecture to life and to help ensure that its universal values, including respect for human rights and the rule of law, are implemented across all African Union member states. Yet how serious in reality are the latter on this question? Ratification of the African Charter has taken five years and, as of late 2019, the implementation of its compliance mechanism is still pending. This article asks how these empirical puzzles can be best addressed. In the absence of robust data on member states’ preferences and with a view to developing hypotheses for further research, this article inductively interrogates how data on the various regimes’ political liberties may or may not relate to the ratification of the African Charter and the implementation of the ACDEG compliance mechanism.

Introduction

2017 ◽  
Author(s):  
Alex J. Bellamy
Keyword(s):  
Cold War ◽  
East Asia ◽  
First Century ◽  
The Past ◽  
Twenty First Century ◽  
The Cold War

Until recently, East Asia was a boiling pot of massacre and blood-letting. Yet, almost unnoticed by the wider world, it has achieved relative peace over the past three decades.1 At the height of the Cold War, East Asia accounted for around 80 percent of the world’s mass atrocities. By the second decade of the twenty-first century, it accounted for less than 5 percent....

The Twenty-first Century

2018 ◽  
Author(s):  
Alexander Gillespie
Keyword(s):  
Environmental Sustainability ◽  
First Century ◽  
Bad News ◽  
Good News ◽  
Species Loss ◽  
The Past ◽  
Scientific Terms ◽  
Twenty First Century ◽  
Open Question ◽  
New Generation

The cumulative environmental challenge of sustainable development in the twenty-first century is larger than anything humanity has ever had to deal with in the past. The good news is that solid progress is being reached in the understanding of issues in scientific terms and understanding what needs to be done. The bad news is twofold. First, although many of the environmental problems of earlier centuries are now being confronted, a new generation of difficulties is eclipsing what were the older difficulties. Secondly, much of the progress is being achieved by the wealthier parts of the planet, rather than the developing world. From population growth to climate change to unprecedented habitat and species loss, whether environmental sustainability can be achieved in the twenty-first century is an open question.

Human Rights and 21st Century Challenges

2020 ◽  
Keyword(s):  
Human Rights ◽  
First Century ◽  
World Population ◽  
Security Environment ◽  
Policy Debates ◽  
The Poor ◽  
Relative Share ◽  
Technological Advances ◽  
The World ◽  
Twenty First Century

The world faces significant and interrelated challenges in the twenty-first century which threaten human rights in a number of ways. This book examines the relationship between human rights and three of the largest challenges of the twenty-first century: conflict and security, environment, and poverty. Technological advances in fighting wars have led to the introduction of new weapons which threaten to transform the very nature of conflict. In addition, states confront threats to security which arise from a new set of international actors not clearly defined and which operate globally. Climate change, with its potentially catastrophic impacts, features a combination of characteristics which are novel for humanity. The problem is caused by the sum of innumerable individual actions across the globe and over time, and similarly involves risks that are geographically and temporally diffuse. In recent decades, the challenges involved in addressing global and national poverty have also changed. For example, the relative share of the poor in the world population has decreased significantly while the relative share of the poor who live in countries with significant domestic capacity has increased strongly. Overcoming these global and interlocking threats constitutes this century’s core political and moral task. This book examines how these challenges may be addressed using a human rights framework. It considers how these challenges threaten human rights and seeks to reassess our understanding of human rights in the light of these challenges. The analysis considers both foundational and applied questions. The approach is multidisciplinary and contributors include some of the most prominent lawyers, philosophers, and political theorists in the debate. The authors not only include leading academics but also those who have played important roles in shaping the policy debates on these questions. Each Part includes contributions by those who have served as Special Rapporteurs within the United Nations human rights system on the challenges under consideration.

Does the Injunction Gap Violate Implementers’ Fair Trial Rights Under the ECHR?

2020 ◽  
Author(s):  
Léon E Dijkman
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
European Convention ◽  
The Past ◽  
European Court ◽  
The Subject ◽  
The Right ◽  
Federal Supreme ◽  
Validity Of A Patent

Abstract Germany is one of few jurisdictions with a bifurcated patent system, under which infringement and validity of a patent are established in separate proceedings. Because validity proceedings normally take longer to conclude, it can occur that remedies for infringement are imposed before a decision on the patent’s validity is available. This phenomenon is colloquially known as the ‘injunction gap’ and has been the subject of increasing criticism over the past years. In this article, I examine the injunction gap from the perspective of the right to a fair trial enshrined in Art. 6 of the European Convention on Human Rights. I find that the case law of the European Court of Human Rights interpreting this provision supports criticism of the injunction gap, because imposing infringement remedies with potentially far-reaching consequences before the validity of a patent has been established by a court of law arguably violates defendants’ right to be heard. Such reliance on the patent office’s grant decision is no longer warranted in the light of contemporary invalidation rates. I conclude that the proliferation of the injunction gap should be curbed by an approach to a stay of proceedings which is in line with the test for stays as formulated by Germany’s Federal Supreme Court. Under this test, courts should stay infringement proceedings until the Federal Patent Court or the EPO’s Board of Appeal have ruled on the validity of a patent whenever it is more likely than not that it will be invalidated.

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