In The Pilot-Judgment Procedure of the European Court of Human Rights Dominik Haider examines if this recent approach to tackle structural human rights deficiencies in member states is reconcilable ...with the European Convention on Human Rights.
•Susanna Marinelli 1, Francesca Negro 2, Maria Cristina Varone 2, Lina De Paola 2, Gabriele Napoletano 2, Alessandra Lopez 3, Simona Zaami 2*, Giuseppe Basile 4.•The article aims to shed a light on ...the unique complexities inherent in surrogacy and the legal-ethical challenges that currently exists even in many advanced democracies, which frequently result in uneven and ill-defined standards and processes.•The recent proposal of making surrogacy a “universal crime” has prompted us to better analyze the topic and its ethical and legal implications.•Legislative harmonization at the international level is essential to prevent the cross-border surrogacy trend. The “universal crime” draft bills appear to be difficult to enforce and too vague to be credible at the moment.
The article aims to shed a light on the unique complexities inherent in surrogacy and the legal-ethical challenges that currently exists even in many advanced democracies, which frequently result in uneven and ill-defined standards and processes. The recent proposal of making surrogacy a “universal crime”, meant to prevent cross-border surrogacy, i.e. travels by citizens from countries where it is illegal to countries where it is legal, has also been weighed, by exploring the current legislative state of affairs, trends and future horizons. Recent case-law has been analyzed and interpreted, with a close focus on Italian Supreme Court ruling n. 38162, issued on 30th December 2022 and European Court of Human Rights (ECtHR) rulings issued over the past decade. Uncertainty and ill-defined norms and court rulings risk harming the rights of children, surrogate mothers and intended parents. So far, court decisions have somehow filled the legal vacuum, considering that cross-border surrogacy is not specifically regulated in many countries and the status of children born abroad is still controversial. The views and judgments of supranational courts on the issue need to be accounted for when drafting new specific legislation. It is of utmost importance to uphold the rights of children born through surrogacy abroad, whose best interests risk being damaged. Legislative harmonization at the international level is essential to prevent the cross-border surrogacy trend. The “universal crime” draft bills appear to be difficult to enforce and too vague to be credible at the moment.
When courts started publishing judgements, big data analysis (i.e. large-scale statistical analysis of case law and machine learning) within the legal domain became possible. By taking data from the ...European Court of Human Rights as an example, we investigate how natural language processing tools can be used to analyse texts of the court proceedings in order to automatically predict (future) judicial decisions. With an average accuracy of 75% in predicting the violation of 9 articles of the European Convention on Human Rights our (relatively simple) approach highlights the potential of machine learning approaches in the legal domain. We show, however, that predicting decisions for future cases based on the cases from the past negatively impacts performance (average accuracy range from 58 to 68%). Furthermore, we demonstrate that we can achieve a relatively high classification performance (average accuracy of 65%) when predicting outcomes based only on the surnames of the judges that try the case.
Abstract
Due diligence is at the heart of the United Nations Guiding Principles on Business and Human Rights, which establish the main parameters internationally for considering corporate ...responsibility for human rights violations. However, the Guiding Principles invoke two different concepts of due diligence: the first is a process to manage business risks and the second is the standard of conduct required to discharge an obligation. In this article, we show that the Guiding Principles invoke these two concepts without explaining how they relate to each other. This confusion creates uncertainty about the extent of businesses’ responsibility to respect human rights and uncertainty about how that responsibility relates to businesses’ correlative responsibility to provide a remedy when they infringe human rights. On this basis, we propose and justify an interpretation of the Guiding Principles that clarifies the relationship between the two concepts of due diligence.
The cornerstone of international refugee law is the principle of 'non-refoulement', which protects refugees, asylum seekers, and other persons with protection needs from being returned against their ...will to a place where they risk facing persecution or other fundamental rights violations. A person who is protected against 'refoulement' may, however, return voluntarily. Determining when such returns are truly voluntary is an issue increasingly at the heart of discussions about the lawfulness of returns, including recently in the Lake Chad Basin, East Africa, the Middle East, Southeast Asia, Europe, and Australia.
Today, there does not appear to be a generally agreed legal standard to determine when a return is truly voluntary. Likewise, international law does not define a clear line at which State action to 'incentivize' or 'induce' returns amounts to 'refoulement' or an unlawful expulsion. However, recent publications by international law expert bodies and ensuing debate among States have provided some indications as to where international law stands on the issue and the direction in which it might develop. Thus, this article first examines the interplay between voluntary returns and the principle of 'nonrefoulement'. Secondly, it analyses recent positions taken by the International Law Commission and the United Nations Committee against Torture concerning legal limits on the measures that States may take to incentivize or induce returns. Thirdly, the article considers certain measures taken by States to incentivize or induce the 'voluntary' return of a person and indicates when such measures may amount to acts of coercion or force in violation of international law.
The current era in the life of the European Convention on Human Rights is a transformative one. The author, a serving judge of the Strasbourg Court, thus finds it opportune to look back in time, ...consider the present and reflect on the future. In the article, it is argued that the last 40 years or so constituted the Court’s ‘substantive embedding phase’. This phase has now in general shifted towards a new historical era, the ‘procedural embedding phase’, which is analysed in detail. During this latter phase, the Court has begun to realign its project attempting to trigger increased engagement with the Convention by national authorities using a mechanism termed ‘process-based review’. The overall aim is to secure a higher and more sustainable level of Convention protections within the States subject to European supervision. However, within this process-based review mechanism, national decision-makers have to be structurally capable of fulfilling the task of effectively securing human rights. This means that the foundations of the domestic legal order have to be intact. States that do not respect the rule of law cannot expect to be afforded deference under process-based review in the age of subsidiarity.
Abstract
This article presents the contours of a “dialogical model” of adjudication arising from the practice of the European Court of Human Rights that is profoundly transforming inherited notions ...of rights, legal reasoning, legal authority, and the rule of law more generally. The dialogical model is characterized by a form of reasoning that is not self-reliant or autonomous, but internally constituted by the interaction of multiple voices, normative perspectives, and institutional standpoints. What is defined as dialogical, however, is not the inclusion of this or that discrete voice, but the entire process of adjudication, including: how issues are framed; the need to consider cases as a whole; their embeddedness in large swathes of normative magma; the self-reflexive assessment of the Court’s position and trajectory; the relational understanding of the Court’s authority; and the fact that each and every decision constitutes a notion of democracy that is plural, many-voiced, and inherently in tension. Beyond a mere polyphony of voices, therefore, this is an entirely new paradigm to conceive the Court’s task, which differs markedly from the two main paradigms of understanding human rights adjudication, namely the rights-based model and proportionality analysis. After describing the shortcomings of the latter two paradigms fully to account for the Court’s practice, the article presents the features of the dialogical model. Ultimately, this is a judgment about the collective self-definition of democratic societies, which necessitates a reassessment of the countermajoritarian difficulty to account for the democracy-constituting role of the Court.
This case concerned the detention of the applicant pending the determination of his asylum claim. The applicant, an Iraqi citizen, had irregularly entered Hungary via the Hungarian- Ukrainian border ...and had requested international protection. After asylum proceedings were underway, the applicant was granted a residence permit on humanitarian grounds. However, he was subsequently detained for a period of four months because of alleged uncertainties surrounding his identity and nationality, and because Hungarian authorities believed that, if left at large, the applicant could impede the asylum process and would pose a risk of absconding.
PDF
