Shaping Rights in the ECHR: The Role of the European Court of Human Rights in Determining the Scope of Human Rights

doi:10.1017/CBO9781107337923

In fundamental rights adjudication, a court first has to determine whether the interest at stake falls within the scope of the fundamental right invoked. Whether or not an individual interest falls within the scope or ambit of one of the fundamental rights protected by the European Convention on Human Rights determines whether or not the European Court of Human Rights can decide on the merits of a case. This volume brings together a variety of legal scholars in order to examine the scope of fundamental rights. Topics range from the nature of human rights and the real or imagined risk of rights inflation to theories of positive obligations and social and economic rights. It contains contributions of a theoretical nature as well as analytical overviews of the ECtHR's approach. In addition, comparisons are made with domestic, EU and international law.

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Contents

Shaping Rights in the ECHR - Half title page
pp i-ii
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Shaping Rights in the ECHR - Title page
pp iii-iii
The Role of the European Court of Human Rights in Determining the Scope of Human Rights
- By Eva Brems, Janneke Gerards
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Copyright page
pp iv-iv
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Contents
pp v-vii
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Contributors
pp viii-ix
- By Oddný Mjöll Arnardóttir, Eirik Bjorge, Eva Brems, Maris Burbergs, Antoine Buyse, Janneke Gerards, Eduardo Gill-Pedro, Xavier Groussot, Laurens Lavrysen, Ingrid Leijten, Paul Lemmens, George Letsas, Alastair Mowbray, Martin Scheinin, Gerhard van der Schyff, Stijn Smet
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Acknowledgements
pp x-x
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1 - Introduction
pp 1-14
- By Janneke Gerards, Eva Brems
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Part 1 - Conceptual, structural and constitutional issues relating to the scope of rights
pp 15-106
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2 - Between the will of the Contracting Parties and the needs of today
pp 17-37
Extending the scope of Convention rights and freedoms beyond what could have been foreseen by the drafters of the ECHR
- By Alastair Mowbray
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3 - The scope and balancing of rights
pp 38-64
Diagnostic or constitutive?
- By George Letsas
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4 - Interpreting the protection guaranteed by two-stage rights in the European Convention on Human Rights
pp 65-83
The case for wide interpretation
- By Gerhard van der Schyff
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5 - The scope of ECHR rights and institutional concerns
pp 84-106
The relationship between proliferation of rights and the case load of the ECtHR
- By Janneke Gerards
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Part 2 - Scope and more – developments in the case law of the ECtHR
pp 107-208
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6 - Defining the scope of economic and social guarantees in the case law of the ECtHR
pp 109-136
- By Ingrid Leijten
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7 - Procedural protection
pp 137-161
An examination of procedural safeguards read into substantive Convention rights
- By Eva Brems
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8 - The scope of rights and the scope of obligations
pp 162-182
Positive obligations
- By Laurens Lavrysen
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9 - Contested contours
pp 183-208
The limits of freedom of expression from an abuse of rights perspective – Articles 10 and 17 ECHR
- By Antoine Buyse
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Part 3 - 360° comparison
pp 209-271
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10 - Bottom-up shaping of rights
pp 211-231
How the scope of human rights at the national level impacts upon Convention rights
- By Eirik Bjorge
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11 - Old and new human rights in Europe
pp 232-258
The scope of EU rightsversusthat of ECHR rights
- By Xavier Groussot, Eduardo Gill-Pedro
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12 - European human rights as universal rights
pp 259-271
In defence of a holistic understanding of human rights
- By Martin Scheinin
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Part 4 - A closer look at specific rights
pp 272-349
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13 - The ‘absolute’ prohibition of torture and inhuman or degrading treatment in Article 3 ECHR
pp 273-293
Truly a question of scope only?
- By Stijn Smet
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14 - The right to a fair trial and its multiple manifestations
pp 294-314
Article 6(1) ECHR
- By Paul Lemmens
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15 - How the right to respect for private and family life, home and correspondence became the nursery in which new rights are born
pp 315-329
Article 8 ECHR
- By Maris Burbergs
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16 - Discrimination as a magnifying lens
pp 330-349
Scope and ambit under Article 14 and Protocol No. 12
- By Oddný Mjöll Arnardóttir
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Index
pp 350-367
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Shaping Rights in the ECHR

The Role of the European Court of Human Rights in Determining the Scope of Human Rights

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