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Article 58 of the European Convention on Human Rights (ECHR) contains a provision which allows for the involuntary withdrawal, or expulsion, of a State from the ECHR if it has been expelled from, or ceased to be a member of, the Council of Europe (CoE). By comparing Russia's exit from the ECHR in 2022 with that of Greece in 1969, this article demonstrates that involuntary withdrawal poses a number of legal problems—partly as a result of it not having been considered during the drafting of the ECHR or the Statute of the CoE, and partly because of the highly unclear basis on which involuntary withdrawal operates. The article then conducts a comparative analysis of other regional human rights systems and public international law principles on treaty withdrawal in order to suggest a more comprehensive legal foundation for expulsion.
While research on the right to freedom of thought (FOT), as such, is already scarce, this chapter targets the European regional human rights framework in particular, attempting to fill the existing gap in research and literature. It aims to offer an exploratory analysis of the right to FOT through the prism of the European Convention on Human Rights (ECHR) and related jurisprudence of the European Court of Human Rights (ECtHR). Specifically, this chapter inquires whether the right to FOT can indeed be considered a right with independent value in the context of the ECHR, or whether it must rather be understood as an ancillary right, subordinate to and dependent on related ECHR rights (in a similar fashion as Article 14). In exploring this, a distinction must be drawn between the theoretical set-up of FOT in the ECHR and the drafters’ intention compared to how the ECtHR’s interpretation and application shaped the right in practice. By focusing on the question of its nature within the ECHR this chapter aims to stimulate further engagement with this under-researched right.
This chapter analyses the indirect judicial application of the Convention on the Rights of the Child (the Convention) in the United Kingdom, a dualist legal system where the Convention has not been fully incorporated through legislation. Although the courts have somewhat engaged with the Convention through the traditional methods (statutory interpretation and the development of the common law), the Convention has been given effect overwhelmingly in the context of the Human Rights Act 1998 (the HRA), and implicitly of the European Convention on Human Rights and Fundamental Freedoms 1951 (the ECHR). The joint application of the Convention with the HRA–ECHR tandem has been both a facilitating and an inhibiting factor in the judicial effect of the former. Like courts in other jurisdictions, UK courts have also applied the Convention in sui generis ways, diversifying thus the opportunities for its usage. The overlap between the Convention and other legal standards makes the assessment of its impact difficult, but it is clear that the application of the Convention is associated with a more child-sensitive judicial reasoning.
This chapter examines how the Council of Europe sought to promote the rule of law in Russia after the collapse of the Soviet Union. Soviet president Mikhail Gorbachev’s ambition to construct a “common European home,” to be pursued in concert with European states and international organizations, was advanced by Russian president Boris Yeltsin and, at least initially, by his successor as president, Vladimir Putin. But after roughly a decade of concrete reforms, that effort foundered, reversed, and then collapsed. Russia descended again into authoritarianism and, shortly after its full-scale invasion of Ukraine, Russia was expelled from the Council of Europe. Thus, this story now has a beginning, a middle, and an end. This chapter explores that story and how the dynamics of Russia’s pursuit and rocky course of membership in the Council of Europe affected both the Russian state and the international organization that sought to admit it to membership.
The European Court of Human Rights has long been cast as a defender of democracy in Europe. Yet, this idea has not always been at the core of the Court’s perception in the literature or indeed aligned with its jurisprudence which are often viewed in more Dworkinian terms. We suggest that there are good reasons, however, to take this idea more seriously in line with some of the early discussions on the function of the Convention. We argue that a good way to flesh out this idea is by drawing on the recent discussion on comparative representation reinforcement, sometimes labelled comparative political process theory, which builds on earlier work by US constitutional theorist John Hart Ely. Such an – expanded and updated – Elyian approach, we believe, has much to offer not just for domestic constitutional courts around the globe, but also for a supranational human rights court such as the ECtHR. We spell out what this might mean for the Court’s jurisprudence with reference to a few key areas of jurisprudence and the protection of minority rights in particular and sketch some implications for when to exercise restraint and when to intervene in a robust manner.
This chapter offers an elaborate analysis of the position of same-sex couples and rainbow families under the ECHR and EU law. Addressing issues such as marriage and partnerships, parenthood and parental responsibility, but also social benefits, family reunification and the legal recognition of family ties established abroad, the chapter takes the view that the recognition and protection of family relationships can follow multiple paths and that the ECtHR case law and EU law are mutually reinforcing for the benefit of the rights of same-sex couples and their children. The chapter also acknowledges that subsidiarity considerations lead European bodies to favour a compromise approach, refraining from forcing states to abandon their traditional conception of family law’s fundamental institutions: marriage and parenthood. The chapter, nevertheless, suggests that, at some point in the future, the increased visibility and legitimacy of same-sex couples and rainbow families should ultimately lead to imposing a European and inclusive understanding of these institutions.
The question of when and how a European consensus or trend contributes to shaping rights guaranteed by the European Convention on Human Rights and its Protocols is controversial. The European Court of Human Rights quite often performs an analysis of the laws and practices of the Council of Europe’s Member States or of relevant international material. However, the cases where rights have actually been shaped by a European consensus or trend are quite rare. In the last twenty-five years, some 27 out of 424 judgments on the merits of the Grand Chamber of the Court established a consensus or trend having a “shaping impact” on these rights. Further, only one advisory opinion based on Protocol No. 16 contained comparative law material having such an influence. This Article assesses the intensity of the impact of a consensus or a trend analysis on a judgment’s or an advisory opinion’s ratio decidendi, shows what shaping a right actually means, and suggests that cases that are more prone to a potentially persuasive consensus or trend analysis will typically deal with matters of political or general policy, sensitive moral or ethical issues, or changes in the case law.
The application of AI in judicial decision-making has the potential for both courts and people seeking justice in consumer law contexts. This is especially true for AI assistant systems that help judges by pre-evaluating individual cases. Currently, the application of a human-out-of-the-loop robojudge is unrealistic in Europe as its use would not only be in conflict of fundamental rights enshrined in the ECHR
Europe has recently struggled with democratic backsliding and autocratization. This autocratization has accompanied a decline in academic freedom in many backsliding countries, as reported by the Academic Freedom Index. Can the standards set by the European supranational courts effectively safeguard academic freedom? This article provides answers to this question. It argues that despite differences in their approaches, the theoretical conceptions of scholarship held by the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (ECJ) share an essential feature: both have moved towards embracing the ‘liberal science script’ by protecting academic freedom. The main difference between the two courts’ approaches is the subject of protection. The ECtHR focuses on the individual rights of academics: It protects free speech in the academic context by establishing a high standard for holding academics liable for publicly expressing their views inside and outside of academia. The ECJ has applied the concept of institutional autonomy, thereby setting a high standard for safeguarding the freedom of academic institutions. This standard can be applied with regard to the demands placed by policy-makers on academia regarding its role in democracy, including gender equality requirements for EU research funding.
The relationship between scholarship and adjudication has attracted considerable attention in recent years, especially in those areas where significant academic expertise has been developed and academic scrutiny of decisions is common. Yet the role of scholars and scholarship in the context of the adjudicatory practices of the European Court of Human Rights (ECtHR) has remained palpably under-investigated. This article begins to fill this gap in the literature by carrying out the first large-scale empirical study of the use of scholarship by the ECtHR. The authors rely on a purpose-built dataset comprising all the citations made by the Grand Chamber of the Court in judgments and separate opinions appended to it. The study finds that the Court's majority uses scholarship for the purposes of reviewing facts and interpreting international and domestic law but does so rarely. The majority of the ECtHR does not use scholarship to interpret the European Convention on Human Rights or for persuasive purposes, unlike the individual Judges in their separate opinions. Indeed, individual Judges refer to scholarship more often, for more varied and arguably different purposes. This use, however, is inconsistent in terms of both frequency and the types of sources referred to.
The concluding chapter starts by very briefly summarizing key patterns in the litigation over judicial selection and then returns to the de Tocqueville quote and the issue of American exceptionalism. To assess the exceptionalism question, the chapter includes a discussion of litigation over judicial selection outside the United States, finding that it occurs in very few countries and where it does occur, is generally very limited. One exception is the recent burst of litigation in international courts over judicial selection in Poland. Another possible exception is Israel where there has been litigation concerning several judicial selection issues. Overall, the chapter concludes that American exceptionalism in litigation over judicial selection does not lie in the existence of such litigation but in the frequency of that litigation.
This chapter charts the development of children’s rights in international human rights law. The centre piece of international children’s rights law is the United Nations Convention on the Rights of the Child (CRC). This chapter explores and assesses the content and principles of the CRC and its ability to remain effective in the modern law. Particular consideration is given to the implementation and enforceability of the CRC, including the development of the individual communications procedure. The chapter then turns to the European Convention on Human Rights (ECHR) and assesses the extent to which it has been able to respond to the development of international children’s rights. Through creative interpretation, the unpromising ECHR text has become a more effective means of protecting children’s rights. Nonetheless, the limitations of the text and the practical obstacles to litigation continue to hinder children who look to enforce its rights.
Lord Bingham noted that the Common Law was not an isolated island, and that English law had always shown a receptiveness to ‘the experience and learning of others’. Brexit might appear to have set back that optimism. However, British relations with continental Europe are deep and historical. British lawyers played a very strong role in the creation and founding of the European Convention on Human Rights, so ECHR rights (now incorporated in the Human Rights Act) are not alien, foreign devices. Furthermore, Britain was not forced into EEC membership, but joined voluntarily, persisting after its first two applications were rejected by General de Gaulle, because it perceived that it would be socially and economically enriched by such membership – a perception that turned out to be accurate. EU membership also provided an external support system for UK devolution, facilitating common approaches within the UK and conciliation between the UK and Ireland. The EU and ECHR provided external guarantees and entrenchment of human rights, many of which are now at risk post-Brexit.
Human rights have had a fragile status in Britain, given the overpowering doctrine of parliamentary sovereignty, which has enabled a parliamentary majority to achieve any policy in the absence of entrenched constitutional protections. Plans to repeal the 1998 Human Rights Act are evidence of this. Dicey wrote that parliamentary sovereignty was tempered by the rule of law in the UK, but it is unclear from his work how the rule of law could operate to override the will of a despotic parliamentary majority. Brexit adds to this precarity, by removing EU human rights protection from UK law (which had something close to an entrenched status, while the UK was an EU member). This calculated deletion of fundamental rights – involved in the deliberate exclusion of the EU Charter of Fundamental Rights from UK law post-Brexit – is almost unparalleled in the Western world (although perhaps the US Supreme Court’s Dobbs decision, which removed the protected status of the right to abortion from US constitutional law, comes close, at least for that right).
There has been a turn to fundamental rights in environmental and climate cases before national and international courts in recent years. We know very little whether there has been such a turn in relation to European Union (EU) law before the Court of Justice of the European Union (CJEU). The CJEU occupies an increasingly relevant position in this nexus between environmental law and human rights because of strong and effective EU enforcement mechanisms, the abundance of specific EU secondary environmental law, the growing role of fundamental rights since 2009 and the self-standing provision on the environment in Article 37 of the Charter. An analysis of the case law, nonetheless, shows that Charter rights that can be used as ‘swords’ in the interest of environmental protection have so far played only a limited role. After explaining the absence of a rights turn, we argue that such a turn is warranted before the CJEU as well, also from a legal perspective. This article examines two potential avenues. The CJEU can derive positive obligations from relevant Charter provisions, including Articles 2 (right to life) and 7 (right to respect for private life and the home) of the Charter, or it can rely more extensively on Article 37 as a tool for interpreting primary and secondary EU law in an environmentally friendly way.
The year 2015 witnessed celebrations around the world of an event that took place 800 years earlier in a meadow west of the city of London near what is now Heathrow Airport. Then, the main participants were King John on the one side, and leading barons and prelates on the other. They had gathered to sign up formally to a document (which came to be known as Magna Carta) with the aim of forestalling violent rebellion against the monarchy. Eight centuries later, four provisions of the 1297 re-issue of Magna Carta still decorate the United Kingdom’s statute book even though the document was not a ‘statute’ (or, for that matter, a ‘law’) in the modern sense and the surviving provisions are of no practical significance.
Most older people do not need any special legal support or protection. They are formed of diverse groups and clearly not all are vulnerable to abuses of one form or another. However, some older people are evidently more at risk than others because of ill-health, disability or dementia, or because of their dependency. They may require protection from physical or mental abuse and misuse of their money or property, and at some stage they may need help with making decisions. They may also require legal protection in respect of the provision of treatment or care, especially if the care arrangements involve them being deprived of their liberty.
Older people, especially those with dementia, may require support from diverse agencies, such as housing and social services, and are the main users of the NHS. Discrimination, victimisation or neglect of older people within the health and social care system raise important issues under human rights law, along with other domestic law or international law obligations. The Acts that are outlined in this chapter are aimed at protecting the basic human rights of people at risk, who share with all of us the right to live our lives as we choose.
European States have adopted policies to push back not only against migrants fleeing across the Mediterranean Sea but also against those individuals and NGOs who act in solidarity with them. This article seeks to demonstrate how the activities of maritime NGOs in solidarity with migrants may be protected from States’ interferences within the framework of international human rights law. In a novel inquiry, we submit that both monitoring as the gathering of information and even search and rescue operations may be considered forms of the freedom of expression. Furthermore, as State measures, ranging from intimidation to criminalization, undoubtedly serve to counter migration to Europe, we argue that Article 18 ECHR may be violated if the interferences’ ulterior purpose is exposed. By showing solidarity, at times we also express ideas. Think of those who hid Jewish people during the Nazi regime, the NGOs who organized private aircrafts to save Afghans after the Taliban’s takeover, and those who today go to the Ukrainian border to collect people fleeing the war. This article is based on the authors’ conviction that human rights law must adapt to remain viable in the face of unprecedented human rights challenges and the resourceful civic actions to meet them.
This is a commentary on two articles on assessing mental capacity in everyday practice and in the case of the suicidal patient. It explores some of the conceptual problems with capacity, including the lack of a ‘right’ answer and the value-laden nature of capacity assessments in suicidal patients. In England and Wales, in addition to the Mental Capacity Act 2005 clinicians must also consider their duty of care as part of the European Convention on Human Rights as enacted in the Human Rights Act 1998.