The European Court of Human Rights and Public International Law

2014 ◽  
Keyword(s):  
Human Rights ◽  
International Law ◽  
State Responsibility ◽  
Public International Law ◽  
European Court ◽  
The Law ◽  
Diplomatic Immunity

How does the European Court of Human Rights deal with notions, issues and principles of public international law? How is public international law received and applied by the European Court of Human Rights? The different contributions analyse the question “Fragmentation or Unity?" in the jurisprudence of the European Court of Human Rights in light of different issues. Topics include the Court’s approach to the law of treaties, state responsibility, and state and diplomatic immunity. Likewise, the manner in which the European Court of Human Rights deals with the obligation to not recognize unlawful situations is examined.

State responsibility and positive obligations in the European Court of Human Rights: The contribution of the ICJ in advancing towards more judicial integration

2019 ◽  
Vol 33 (1) ◽  
pp. 177-187
Author(s):  
Rosana Garciandia
Keyword(s):  
Human Rights ◽  
International Law ◽  
European Convention ◽  
State Responsibility ◽  
European Court ◽  
The Icj ◽  
Protection Of Human Rights ◽  
The Law ◽  
Broad Interpretation ◽  
International Law Commission

AbstractThe European Court of Human Rights (ECtHR) follows its own rules regarding the responsibility of states, although the international law of state responsibility enshrined in the International Law Commission (ILC) Articles on State Responsibility for Internationally Wrongful Acts (ARSIWA) remains, as general international law, relevant to its decisions. However, case law of the ECtHR shows that the Court is departing from certain ARSIWA principles as it adopts a broad interpretation of rights contained in the European Convention on Human Rights (ECHR) giving rise to positive obligations.1Exploring those trends in the state responsibility regime of the ECHR, this article argues that, by clarifying certain ARSIWA provisions, the International Court of Justice (ICJ) can play an important role by contributing to a higher degree of judicial integration on the law of state responsibility. It is desirable that the ICJ takes any upcoming opportunity to provide greater clarity on the challenges and nuances of the applicability of the law of state responsibility, in particular as it relates to positive obligations. That would contribute to a more systematic use of those rules by regional courts such as the ECtHR, and ultimately to guaranteeing a greater protection of human rights.

The European Convention on Human Rights and International Law

2007 ◽  
Vol 56 (2) ◽  
pp. 217-231 ◽  
Author(s):  
Luzius Wildhaber
Keyword(s):  
Human Rights ◽  
International Law ◽  
Comparative Law ◽  
Case Law ◽  
European Convention ◽  
Mutual Relationship ◽  
Public International Law ◽  
European Court ◽  
Special Character ◽  
British Institute

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.

Some Contributions from and Influence of the Italian Doctrine of International Law

2020 ◽  
pp. 433-467
Author(s):  
Giovanni Distefano ◽  
Robert Kolb
Keyword(s):  
International Law ◽  
State Responsibility ◽  
Test Case ◽  
Public International Law ◽  
Legal Scholarship ◽  
Italian School ◽  
German School ◽  
Legal Thinking ◽  
The Law ◽  
The Many

This chapter deals with the contribution of Italian scholarship to public international law. Its approach is two-fold. First, adopting an “external” perspective, the contribution of Italian scholars to the highly esteemed series of Hague Courses of the famous eponymous Academy may shed some light on what the Italian conception brought to international legal scholarship but also on how Italian scholars were perceived by their foreign brethren, and in what context they were quoted. Second, selecting a specific issue, the chapter focuses on the influence of Italian legal thinking on the shaping of doctrines of State responsibility. Among all the many areas of international law, this is one where the Italian school is constantly viewed as pioneering (together with the German school). For example, the writings of Anzilotti or Cavaglieri are often quoted as astonishingly modern exposés of that branch of the law, providing thus a test-case to verify the contribution and influence of the Italian doctrine of international law.

Der eigentumsrechtliche Wertschutz von Anteilsrechten

2021 ◽  
Author(s):  
Jörn Griebel
Keyword(s):  
Human Rights ◽  
International Law ◽  
Constitutional Law ◽  
International Investment ◽  
European Convention ◽  
Public International Law ◽  
International Investment Law ◽  
Investment Law ◽  
The Law ◽  
German Constitutional Law

Property protection is provided by national law as well as international law. The study seeks for an explanation regarding the divergent approaches to the protection of shareholders in cases of reflective loss provided for in German constitutional law and various fields of public international law. This is done by way of a comparison of the German approach with those found in the law of aliens, in the European Convention on Human Rights and under international investment law. This results in the finding that approaches of international law partly fail to establish the necessary bonds to recognized concepts of national law.

scholarly journals The Phenomena of Fragmentation in the Legal Relations between the Council of Europe and the European Union

2020 ◽  
Author(s):  
Viktoriya Kuzma
Keyword(s):  
European Union ◽  
Human Rights ◽  
International Law ◽  
International Organizations ◽  
The European Union ◽  
Council Of Europe ◽  
European Continent ◽  
Court Of Justice ◽  
European Court ◽  
The Law

This article presents the current issues in the law of international organizations and contemporary international law in general. It is pointed out that the division of international law into branches and institutions, in order to ensure the effective legal regulation of new spheres of relations, led to the emergence of autonomous legal regimes, even within one region, namely on the European continent. To date, these include European Union law and Council of Europe law. It is emphasized the features of the established legal relations between the Council of Europe and the European Union at the present stage. It is determined that, along with close cooperation between regional organizations, there is a phenomenon of fragmentation, which is accompanied by the creation of two legal regimes within the same regional subsystem, proliferation of the international legal norms, institutions, spheres and conflicts of jurisdiction between the European Court of Human Rights and the Court of Justice of the European Union. It is revealed that some aspects of fragmentation can be observed from the moment of establishing relations between the Council of Europe and the European Union, up to the modern dynamics of the functioning of the system of law of international organizations, the law of international treaties, law of human rights. Areas and types of fragmentation in relations between international intergovernmental organizations of the European continent are distinguished. One way to overcome the consequences of fragmentation in the field of human rights is highlighted, namely through the accession of the European Union to the Convention on Human Rights and Fundamental Freedoms 1950. Considerable attention has also been paid to defragmentation, which is partly reflected in the participation of the European Union in the Council of Europe’s conventions by the applying «disconnection clause». It is determined that the legal relations established between an international intergovernmental organization of the traditional type and the integration association sui generis, the CoE and the EU, but with the presence of phenomenon of fragmentation in a close strategic partnership, do not diminish their joint contribution into the development of the law of international organizations and contemporary international law in general. Key words: defragmentation; European Union; European Court of Human Rights; Convention on Human Rights and Fundamental Freedoms 1950; conflict of jurisdictions; «disconnection clause»; Council of Europe; Court of Justice of the European Union; fragmentation; sui generis.

A Return toCommunitarianism? Reacting to “Serious Breaches of Obligations Arising under Peremptory Norms of General International Law” under the Law of State Responsibility and United Nations Law

2005 ◽  
Vol 42 ◽  
pp. 197-251 ◽  
Author(s):  
Mark Toufayan
Keyword(s):  
Human Rights ◽  
International Law ◽  
State Responsibility ◽  
International Peace ◽  
Human Rights Abuses ◽  
State Action ◽  
Peace And Security ◽  
The Law ◽  
International Law Commission ◽  
Peremptory Norms

SummaryDiscussion surrounding the prevention of genocide has focused to a large extent on the appropriate mode(s) of reaction to particularly serious breaches of human rights obligations. In particular, the question arose whether existing UN mechanisms aimed at preserving international peace and security should be regarded as a privileged — or even exclusive — means to enforce compliance by states with their obligations relating to genocide. Drawing extensively on the work of the International Law Commission on the codification of the law of state responsibility, the author argues that the new draft articles, with their emphasis on “serious breaches of obligations arising under peremptory norms of general international law” rather than obligations erga omnes, are ill-suited to provide for the taking of preventive measures by “not-directly affected” states. Paradoxically, the institutionalization of mechanisms for preventing gross human rights abuses has been reduced to a minimum in the new draft, with emphasis being laid on the vague requirement that states “cooperate” to bring “serious breaches” to an end. It is suggested, however, that ascribing a subsidiary role to UN organs and procedures is, despite criticisms made as to their adequacy, necessary to supplement state action. The UN has in fact a distinct legal interest that is clearly affected when breaches of obligations relating to genocide occur. More importantly, by acting on behalf of the “organized international community” in matters of international peace and security, the Security Council has itself assumed today a legally binding subsidiary obligation to prevent genocide. The article concludes that in the absence of ineffective decisional institutions for the prevention of genocide, the choice is not between the subjectivism of a decentralized response and the absence of any consequences for the most serious wrongful acts but rather to strengthen the UN’s institutional capacity to react.

scholarly journals THE OBLIGATION TO REFRAIN FROM ASSISTING THE USE OF THE DEATH PENALTY

2013 ◽  
Vol 62 (3) ◽  
pp. 523-556 ◽  
Author(s):  
Bharat Malkani
Keyword(s):  
Human Rights ◽  
International Law ◽  
Death Penalty ◽  
State Responsibility ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
International Human ◽  
The Law

AbstractIn this paper, I assert that the prohibition on the death penalty brings with it an obligation on abolitionist States to refrain from assisting the use of the death penalty in retentionist States. By considering the law on complicity and State responsibility, the obligation to protect under international human rights law, and the practice of States, I argue that although there are jurisdictional issues and although the death penalty is not prohibited under general international law, an obligation to refrain from being complicit in the death penalty is developing in international law.

scholarly journals The European Convention of Human Rights and Migration at Sea: Reading the “Jurisdictional Threshold” of the Convention Under the Law of the Sea Paradigm

2020 ◽  
Vol 21 (3) ◽  
pp. 417-435
Author(s):  
Efthymios Papastavridis
Keyword(s):  
Human Rights ◽  
International Law ◽  
European Convention ◽  
Law Of The Sea ◽  
International Tribunal ◽  
European Court ◽  
Common Practices ◽  
The Law ◽  
And Migration ◽  
And Control

AbstractIn all the applications before the ECtHR concerning migration at sea, a preliminary, yet seminal, question is whether the applicants were within the jurisdiction of the respondent State, in terms of Article 1 of the European Convention on Human Rights (ECHR). This question becomes even more apposite in contemporary situations of remote interception or search and rescue operations. In addressing the matter of jurisdiction in such cases, the law of the sea becomes of significant importance. This Article argues that as the International Tribunal of the Law of the Sea (ITLOS) has often taken into account human rights considerations, similarly, the European Court of Human Rights should read into the term “jurisdiction” under Article 1 of ECHR law of the sea considerations. Far from resurrecting Banković and the strict “general international law” notion of jurisdiction under ECHR, this Article only intends to shed some light on when a State would be considered as exercising such “authority and control over persons” in the maritime domain. In so doing, this Article will focus only on the potential application of the ECHR to the most common practices of States vis-à-vis migration on the high seas, namely interception and rescue operations.

scholarly journals Human dignity: an illusory limit for the evolutive interpretation of the ECHR?

Amicus Curiae ◽  
2019 ◽  
pp. 20-28
Author(s):  
Pavel Bureš
Keyword(s):  
Human Rights ◽  
International Law ◽  
Human Dignity ◽  
Case Law ◽  
Senior Lecturer ◽  
Public International Law ◽  
European Court ◽  
The Subject ◽  
The Relationship

In this article Pavel Bureš (Senior Lecturer in Public International Law in the Faculty of Law at Palacky University, Czech Republic) aims to portray some basic elements of the relationship between the concepy of human dignity and the evolutive interpretation, setting out key elements, notions and considerations for further thoughts. The article presents some basic issues related to the subject matter, then focuses on the evolutive interpretation, and finally outlines the role of human dignity in the case law related to the evolutive interpretation. Index keywords: Human rights, human dignity, European Court of Human Rights

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