Abstract
The recent judgments of the Judicial Committee of the Privy Council (JCPC) in Day and Another v. Government of the Cayman Islands, and Attorney General for Bermuda v. Ferguson and Others, ...upholding the constitutionality of laws limiting marriage to opposite-sex couples in Bermuda and the Cayman Islands, respectively, have disrupted a consensus that had been emerging amongst constitutional courts in the common law world that such laws were unconstitutional. This article critiques the JCPC’s justifications for distancing itself from this consensus and instead aligning itself with the much-criticized jurisprudence of the European Court of Human Rights (ECtHR) and the United Nations Human Rights Committee (UNHRC) on the issue of same-sex marriage. It will be argued that the JCPC’s decisions were based on a narrowly textual interpretation of the respective constitutions and failed to take account of the impact of the ban on same-sex marriage on the gay and lesbian communities in each jurisdiction. It will further be argued that the JCPC relied too heavily on the jurisprudence of the ECtHR and UNHRC at the expense of foundational principles such as liberty and equality. The article also considers the consequences of these decisions for the other countries over which the JCPC continues to exercise jurisdiction and which prohibit same-sex marriage, as well as for the other countries whose courts continue to be influenced by the jurisprudence of the JCPC even though it is no longer their final appellate court.
Abstract
Since the European Convention on Human Rights entered into force in 1953, lesbian, gay, bisexual, and transgender people have consistently sought to utilise it as a means of challenging ...discrimination against them. In the United Kingdom, various aspects of discrimination on the grounds of sexual orientation and gender identity have been addressed by the European Court of Human Rights. In the context of vehement criticism of the European Court of Human Rights in the United Kingdom, this article explains the vital importance of the United Kingdom remaining a party to the European Convention on Human Rights in order to maintain and develop the protection of lesbian, gay, bisexual, and transgender people from discrimination.
In Alkhatib and Others v. Greece, the European Court of Human Rights (ECtHR) has condemned Greece for yet another instance of human rights violations in border management. By underlining the ...importance of clear regulations and adequate evidence within border operations, the Court showed avenues to enhance the accountability framework for violations perpetrated at Europe’s borders. Its decision contrasts favourably with the approach taken in the EU at large, where both legislators and national and supranational courts generally disregard the opacity in regulations governing border operations and the difficulty of collecting evidence for migrants.
Between August and September 2021, the European Court of Human Rights rejected three requests for interim measures against France and Greece's compulsory vaccination statutes against COVID-19. Due to ...the procedural nature of the interim measures, however, the status of vaccine mandates against SARS-CoV-2 under the European Convention of Human Rights has not been addressed. The paper argues that COVID-19 compulsory vaccination is consistent with both the text and the original understanding of Article 8 of the Convention. Moreover, considering pertinent case law on medical mandatory treatments, COVID-19 vaccine mandates should also square with the European Court of Human Right's "living instrument" doctrine. For this reason, it is expected that the European Court of Human rights will uphold COVID-19 vaccination programs. At the same time, it would be beneficial if more Council of Europe member states triggered Article 15 derogation mechanism in order to make an even stronger case for fast-track developed vaccines and contrast vaccine hesitancy.
Alexander Litvinenko was a former Russian intelligence officer who worked for the USSR Committee for State Security (KBG) and its successor agencies, including Russia's Federal Security Service ...(FSB). After receiving orders he regarded as unlawful, Mr Litvinenko became a whistle-blower, reporting such orders to the military prosecutor's office. This resulted in his dismissal from the FSB and a string of charges being brought against him.
The article analyzes the use of precedent by the European Court of Human Rights. It examines the various types of precedents in the practice of the Court and how they are utilized. It discusses ...different methods of development of case law, including overruling precedents, branching of the case law, and fragmentation of the case law. The article also proposes guidelines for the orderly development of case law.
Ukraine has turned to international institutions to hold Russia and Russian officials accountable for violations of international law. In the month following the invasion, Ukraine initiated ...proceedings in the International Court of Justice (ICJ) and the European Court of Human Rights (ECtHR), both of which have issued preliminary orders directing Russia to cease military action. The International Criminal Court (ICC) prosecutor has also opened an investigation into events in Ukraine. Other avenues for accountability include investigations opened by various international entities, as well as domestic legal processes in Ukraine and other countries. Mounting evidence of Russian wartime misconduct has ramped up calls for legal accountability, though the prospects for obtaining such redress remain uncertain.
A prerequisite for the proper application of the law is a certain definition of the terms used in the law. A variable definition of a concept undermines the requirement of legal certainty, and an ...overly narrow or broad definition of a concept (compared with the general idea of its content) may lead to doubts about the fairness of legal regulation. Although the legal system uses the term “religion” relatively frequently, it does not generally define it explicitly. In most cases, this does not cause problems because there is no reasonable doubt as to whether we are dealing with a religious element. In hard cases, however, there is no choice but to decide where to draw the line between religion and other types of beliefs. The alternative is to stop distinguishing between them, thus depriving the religious element of its special legal status. The social sciences distinguish four basic approaches to the definition of a religious phenomenon. The substantive definition seeks to capture the content that a particular belief must satisfy in order to be labelled religious. The essentialist approach emphasises the experience of the believer. The functionalist definition notes the function that religion serves in the life of the believer. The analogical approach does not seek to capture the essence of religion but rather notes its manifestations and what different religions have in common. This article offers examples of the application of these theoretical approaches in jurisprudential practice. It also highlights the fact that courts work flexibly with the concept of religion and often give it a different content depending on the context under consideration.
In two recent Latvian cases concerning the Russian-speaking minority decided respectively in September and November 2023, the ECtHR made clear that protection of constitutional identity has now been ...elevated to a legitimate aim for a differential treatment under the Convention. This post explores how the protection of constitutional identity has been deployed to enable a collective punishment by association with a former occupier, and how the ECtHR’s reasoning has effectively endorsed such a punishment, which is unbefitting of a liberal democratic system the ECHR aspires to represent. Until the three cases were decided, no liberal European democracy could argue without losing face that suppressing a large proportion of its population was its constitutional identity – one of the goals of its statehood. Today, this claim is seemingly kosher, marking a U-turn in the understanding of what the European human rights protection system is for minorities in Europe.
