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  • Author: Laurence R. Helfer
  • Publication Date: 02-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The European Court of Human Rights (ECtHR) is the crown jewel of the world's most advanced international system for protecting civil and political liberties. In recent years, however, the ECtHR has become a victim of its own success. The Court now faces a docket crisis of massive proportions, the consequence of the growing number of states subject to its jurisdiction, its favourable public reputation, its expansive interpretations of individual liberties, a distrust of domestic judiciaries in some countries, and entrenched human rights problems in others. In response to this growing backlog of individual complaints, the Council of Europe has, over the last five years, considered numerous proposals to restructure the European human rights regime and redesign the European Convention on Human Rights (ECHR). This article argues that these proposals should be understood not as ministerial changes in supranational judicial procedure, nor as resolving a debate over whether the ECtHR should strive for individual or constitutional justice, but rather as raising more fundamental questions concerning the Court's future identity. In particular, the article argues for recognition of 'embeddedness' in national legal systems as a deep structural principle of the ECHR, a principle that functions as a necessary counterpoint to the subsidiary doctrine that has animated the Convention since its founding. Embeddedness does not substitute ECtHR rulings for the decisions of national parliaments or domestic courts. Rather, it requires the Council of Europe and the Court to bolster the mechanisms for governments to remedy human rights violations at home, obviating the need for individuals to seek supranational relief and restoring countries to a position in which the ECtHR's deference to national decision-makers is appropriate.
  • Topic: Government, Human Rights
  • Political Geography: Europe
  • Author: Alexander Orakhelashvili
  • Publication Date: 02-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The principal question in terms of assessing the interaction between human rights applicable both in peacetime and war and humanitarian law applicable only to armed conflicts is whether the protection accorded to individuals under the latter is lower than that under the former. The clarification of this question requires the accurate assessment of the available evidence, and not the preconceived approach that tends to conceive one of these two fields as lex specialis that excludes or curtails the protection under the other field. This contribution examines the various aspects of this problem, such as the general interaction between human rights law and humanitarian law, and the relevance of particular human rights in the context of armed conflicts. The evidence dealt with in the course of this analysis exposes the fallacy of the argument that the humanitarian law protection may be lower than that under human rights law.
  • Topic: Human Rights, Humanitarian Aid
  • Author: Philip Alston, Jason Morgan-Foster, William Abresch
  • Publication Date: 02-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Since 2003, as part of its 'war on terror', the United States has taken the position that the UN Commission on Human Rights and its successor, the UN Human Rights Council, as well as the system of 'special procedures' reporting to both bodies, all lack the competence to examine abuses committed in the context of armed conflicts. The article examines the arguments put forward by the US in the specific context of the work of the UN Special Rapporteur on extrajudicial, summary or arbitrary executions. The authors conclude that the consistent practice of the human rights organs for almost 25 years, often supported and until 2003 never opposed by the US, runs counter to the current US position. Acceptance of the US position would not only undermine efforts to hold the US accountable but would also have a major impact on the international system of accountability as a whole.
  • Topic: Human Rights, United Nations
  • Political Geography: United States
  • Author: Andrea Bianchi
  • Publication Date: 06-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: There is an almost intrinsic relationship between jus cogens and human rights. Peremptory human rights norms, as projections of the individual and collective conscience, materialize as powerful collective beliefs. As such, they inherently possess an extraordinary force of social attraction that has an almost magical character. This article investigates the legal effects of peremptory human rights norms at both the systemic and contextual levels. If these norms have been successful in providing the societal body with a set of identity values, they have dramatically failed to operate as an ordering factor of social practices. To wonder why this is so and to see what can be done (and by whom) to enhance their impact on the contextual level is the main goal of this article.
  • Topic: Human Rights
  • Author: Kjetil Mujezinovic Larsen
  • Publication Date: 06-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The article addresses the issue of whether conduct in international peace operations is attributable to the troop contributing states or to the United Nations, taking the European Court of Human Rights' admissibility decision in the Behrami and Saramati cases as a point of reference. The Court concluded that conduct by UNMIK and KFOR troops in Kosovo is attributable to the United Nations. The article examines the content of the 'ultimate authority and control' test that is applied by the Court, and argues that the Court should have taken a different approach. The Court's test is in the author's view difficult to reconcile with the International Law Commission's work on the responsibility of international organizations, with United Nations practice on responsibility for unlawful conduct in peace operations, and with the Court's own jurisprudence concerning attribution of conduct to the state. The author argues further that the Court's arguments are incomplete even if the Court's approach were to be considered correct. The article concludes by expressing concern that the Court's decision, when seen in connection with previous case law, in practice renders the European Convention on Human Rights irrelevant in international peace operations.
  • Topic: Human Rights, International Organization, United Nations
  • Political Geography: Europe
56. Editorial
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Just like the Supreme Court's decision in Medellin (see EJIL Editorial to Volume 19:2) some months ago, the ECJ's decision in Kadi is destined to become a landmark in the annals of international law. Whereas Medellin was generally excoriated as the low water mark of American constitutional and judicial insularity, gruesomely resulting in the actual execution of the principals, Kadi was mostly hailed as an example of the more progressive and open attitude of the ECJ, with the proof of the pudding in the eating – overturning the Council Regulations which gave effect to the measures adopted against the defendants pursuant to the Security Council Resolutions, and doing so on the grounds that they violate fundamental human rights and protections applicable within the legal order of the EU. There, the gallows; chez nous, liberty. Happy Ending.
  • Topic: Human Rights
  • Political Geography: America
  • Author: Jochen von Bernstorff
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The article explores the genesis of the Universal Declaration of Human Rights and the turn to rights in international law. To this end, it focuses on how international lawyers have received the Declaration in their contemporary doctrinal and political contexts. The fact that the political and moral importance of the Declaration from the very beginning outweighed its concrete legal significance invited intriguing scholarly reflections on the symbolic dimension of the document. Despite early sceptical voices about its legal and moral value, international lawyers welcomed and reaffirmed its significance during the 1960s and 1970s. While attention turned to human rights treaty law in the 1980s, the Declaration embodied the hope for a new era of human rights protection after the end of the Cold War. Throughout the 1990s a new scholarly defence of the universal character of the Declaration could be observed, later being accompanied by new insecurity and soul-searching in the face of institutional limitations. In general, the Declaration became synonymous with the turn to individual rights in international law, and whenever there was a sense of crisis because of institutional blockades or challenged foundations, the Declaration received new and increased attention. It symbolized unity in an increasingly fragmented and contentious institutional and political environment for international human rights protection. The story of its scholarly reception is therefore also a story of the failed and perhaps unattainable attempt fully to institutionalize international human rights in a cosmopolitan legal order.
  • Topic: Cold War, Environment, Human Rights, International Law
  • Author: Mary Ann Glendon
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The topic of human rights was prominent in Pope Benedict 's address to the United Nations General Assembly in the year of the Universal Declaration's 60th anniversary. As with many of Pope Benedict's speeches, his 18 April address to the United Nations is one in which some rather complex ideas are expressed in a very condensed fashion. It is a speech that needs, as they say, to be 'unpacked'.
  • Topic: Human Rights, United Nations
  • Author: Paolo G. Carozza
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Human dignity and human rights are not lived as abstract concepts. They have tangible meaning and weight in the context and crucible of concrete human experience – history, freedom, reason, and community. This gap between universal and particular is the heart of the problem with which Christopher McCrudden's 'Human Dignity and Judicial Interpretation of Human Rights' wrestles, as well as the fulcrum of the earlier article of mine to which, in part, his work responds.
  • Topic: Human Rights
  • Author: Robert Howse
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Together with developments in international criminal justice and humanitarian law, the human rights revolution in international law has had a profound structural effect on the international legal order as a whole; we are today only beginning to discern and to digest this effect, to say nothing of the broader consequences for global politics. New actors have been empowered in the international legal system (not only individuals but various kinds of non-state collectivities as well); conceptions of responsibility have been altered; classic notions, such as territorial sovereignty and recognition of statehood, have sometimes subtly and sometimes radically been reshaped or adapted; and the balance of institutional actors charged with interpreting and applying inter-national law has shifted towards courts and tribunals (a major theme of Petersmann) and away from diplomats and their ministers.
  • Topic: Human Rights, Sovereignty, International Affairs