Abstract
This article discusses the application that was recently lodged with the European Court of Human Rights alleging that Italy is responsible for its involvement in pullbacks by the Libyan ...coast guard. It places the case in the wider context of migration control policies and the Hirsi case in particular. The article examines different pullback scenarios which feature in the application lodged with the Court, and discusses different ways in which the Court can address the issues raised. The analysis focuses particularly on the question whether the Court is likely to find that Italy exercises jurisdiction and whether Italy could incur derived responsibility for its involvement in the pullbacks. The article concludes by suggesting that holding Italy responsible would require the Court to move beyond established precedent in its case-law. Although this is a move which can be difficult to make given the political tide in Europe, it would not be the first time that the Court takes its case-law, and thereby human rights protection, a step further.
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The margin of appreciation (MoA) has become the central conceptual doctrine in the institutional and jurisprudential architecture of the European Convention on Human Rights (ECHR). This article ...critiques the existence and operation of the MoA within the ECHR system and defends its use. It is submitted that as each of the central justifications for the MoA under the ECHR applies equally to the International Covenant on Civil and Political Rights (ICCPR), so the doctrine should be applied by the Human Rights Committee.
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Even though they represent almost 50% of all reported cases before the European Court of Human Rights (ECtHR), settlements of human rights violations escape scholars' attention. While victims are ...increasingly expected to resolve their disputes amicably, it is unclear whether applicants will be better off accepting settlement offers rather than proceeding to litigation. The article charts the practice of friendly settlements before the Court from the 1980s to today, mapping a shift in approach from seeking bilateral solutions to the proactive role of the Registry as mediator encouraging states and applicants to settle their cases to relieve the Court of the heavy workload. The study of 10,500 cases reveals how strategies adopted by the Registry-from procedural changes to how and when consent is given to settlement, to the framing of settlement offers, and a close relationship with representatives of the respondent stat-have favored the most frequent violators of the European Convention on Human Rights and sidelined the interests of the applicant. The analysis uncovers that the imbalance between parties and lack of enforcement are very much present in the ECtHR settlement system and that the active role of the Registry has reinforced, rather than redressed these concerns. The findings expose the dangers of pursuing en masse settlement in the human rights context and raise concerns about achieving long-term justice for victims of human rights violations through other means than adjudication.
This article argues that adopting the lens of disability may provide a way forward for the revival of human rights. It shows how it is disability that draws attention to resource deprivation that ...hampers the enjoyment of human rights. It does so by focusing on two novel aspects of the Convention on the Rights of Persons with Disabilities (CRPD): the general principle of participation and the adoption of a rights-based approach to dealing with disability. To illustrate this view, it uses as example the impact the restrictions have had on disabled people during the Covid-19 pandemic.
International politics has become increasingly legalized over the past fifty years, restructuring the way states interact with each other, international institutions, and their own constituents. The ...international legalization of human rights now makes it possible for individuals to take human rights claims against their governments at international courts such as the European and Inter-American Courts of Human Rights. This book brings together theories from international law, human rights and international relations to explain the increasingly important phenomenon of states' compliance with human rights tribunals' rulings. It argues that this is an inherently domestic affair. It posits three overarching questions: why do states comply with human rights tribunals' rulings? How does the compliance process unfold and what are the domestic political considerations around compliance? What effect does compliance have on the protection of human rights? The book answers these through a combination of quantitative analyses and in-depth case studies from Argentina, Brazil, Colombia, Italy, Portugal, Russia and the United Kingdom.
In Europe, judicial review is not only exercised by courts within the states. Additionally, there are two European Courts, the Court of Justice of the EU (CJEU) and the European Court of Human Rights ...(ECtHR). This chapter shows first their respective function with respect to judicial review. In a second step, it put its emphasis on the relationship between them and undertakes to ask whether – with respect to judicial review - one of them can be understood as the ‘Supreme Court of Europe’. It concludes that it is the European Court of Human Rights which can be described as such a ‘Supreme Court’.
This study overviews how the COVID-19 pandemic is framed in five cases before the European Court of Human Rights (the ECtHR). By reconstructing the heteroglossic system of genres at the ECtHR, the ...study contributes to the limited literature on the Court’s discursive practices and genres. The analysis looks into the framing of the COVID-19 pandemic as a human rights violation and identifies preferred interpretation schemata across the participation framework of the cases considered using critical discourse analysis and framing. The findings identify a scaffolding of dialogical frames, where most applicants advanced politicized frame systems built on the core denial of the existence or seriousness of COVID-19, framing the governments’ actions or omissions as civil and political human rights violations. The Governments built on the general healthcare crisis framing, and counterframed societal limitations as agency stemming from a “health and safety first” frame. The Court refuted most of the politicized framing choices and accepted most healthcare-related frames, operating under the “exceptional and unforeseen circumstances” frame.
Developments in European Union (EU) citizenship rights meet expectations of the 'failing forward' framework that fuses insights from liberal intergovernmentalist and neofunctionalist integration ...theories, whereby member state disagreements produce an incomplete form of EU citizenship that fails to treat individuals equally. Legal challenges to discriminatory treatment fit neofunctionalist expectations, with the European Court of Justice (ECJ) extending social rights for EU citizens incrementally. Resulting tensions between the evolution of rights and intergovernmental contestation fuels 'failing forward' in the form of the de-coupling of law and practice. Despite their limited impact, expanding rights sparked politicization that suggests postfunctionalist failures of European solidarity and declining trust in the ECJ. Most damaging to integration, however, is the lack of voting rights in national elections for mobile EU citizens, which (1) enabled the British exit (Brexit) crisis, an outcome of 'failing backward' and (2) persists as a serious EU democratic deficit.
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Since 2009 two courts have been shaping human rights of asylum seekers in Europe: the Court of Justice of the EU (CJEU) and the European Court of Human Rights (ECtHR). Side by side, the courts ...examined who is protected from refoulement, when and how asylum seekers can be detained and what remedies they should have access to. Did they seek convergence in their asylum case-law or paid no attention to each other’s jurisprudence? Did they establish a coherent standard of the asylum seekers’ protection in Europe? Judicial dialogue between the ECtHR and CJEU in the area of asylum is at the heart of this study. The book offers also a comprehensive overview of the asylum case-law of the two courts and identifies the main convergences and divergences in their approach to protection against refoulement, immigration detention and effective remedies.
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