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  • Author: Severin Meier
  • Publication Date: 12-2019
  • Content Type: Journal Article
  • Journal: The Goettingen Journal of International Law
  • Institution: The Goettingen Journal of International Law
  • Abstract: This article examines the extraterritorial application of the European Convention on Human Rights (ECHR) during international armed conflict. After a brief discussion of the different historic origins of international human rights law and international humanitarian law (IHL), the article examines the test for establishing jurisdiction under Article 1 of the ECHR. A critical analysis of some contentious legal issues regarding derogations completes the picture of when jurisdiction is established. Subsequently, the article considers the interaction between the ECHR and IHL in international armed conflicts and concludes by arguing that a balance must be found between protecting human rights in international armed conflicts while not interfering unduly with IHL.
  • Topic: Human Rights, International Law, Conflict
  • Political Geography: Europe
  • Author: Till Patrik Holterhus
  • Publication Date: 12-2018
  • Content Type: Journal Article
  • Journal: The Goettingen Journal of International Law
  • Institution: The Goettingen Journal of International Law
  • Abstract: This article demonstrates that Arts. 21 and 3 (5) of the Treaty on European Union (TEU) as well as Arts. 205, 207 (1), 208 (1), 209 (2) of the Treaty on the Functioning of the European Union (TFEU), legally oblige the European Union (EU) to promote the rule of law in its foreign trade and development policy. Furthermore, it is shown that, in the context of such promotion, the EU applies not a rudimentary but a sophisticated concept of the rule of law – quite similar to the concept of the rule of law that has developed within the Union. To fulfill the legal obligation to promote the rule of law abroad, the EU employs, as a key instrument, the legal mechanism of conditionality, not only through autonomous instruments but also in its contractual international relationships (carrot-and-stick policy). The EU’s foreign policy in the trade and development nexus, in particular when it comes to the promotion of the rule of law, can, therefore, be considered a process, to a large extent, determined and organized the of law.
  • Topic: International Law, International Trade and Finance, Sovereignty, European Union
  • Political Geography: Europe
  • Author: Floris Tan
  • Publication Date: 12-2018
  • Content Type: Journal Article
  • Journal: The Goettingen Journal of International Law
  • Institution: The Goettingen Journal of International Law
  • Abstract: This article examines an underexplored avenue for the protection of the rule of law in Europe: Article 18 of the European Convention on Human Rights. This provision prohibits States from restricting the rights enshrined in the European Convention for any other purpose than provided for in the Convention. In this contribution, the author argues, based on a combination of textual, systematic and purposive interpretations of Article 18, that the provision is meant to safeguard against rule of law backsliding, in particular because governmental restrictions of human rights under false pretenses present a clear danger to the principles of legality and the supremacy of law. Such limitations of rights under the guise of legitimate purposes go against the assumption of good faith underlying the Convention, which presupposes that all States share a common goal of reinforcing human rights and the rule of law. Article 18 could therefore function as an early warning that European States are at risk of becoming an illiberal democracy or even of reverting to totalitarianism and the destruction of the rule of law. The article then goes on to assess the extent to which the European Court’s case-law reflects and realizes this aim of rule of law protection, and finds that whereas the Court’s earlier case-law left very little room for an effective application of Article 18, the November 2017 Grand Chamber judgment in Merabishvili v. Georgia has made large strides in effectuating the provision’s raison d’être. As the article shows, however, even under this new interpretation, challenges remain.
  • Topic: Human Rights, International Law, Rule of Law
  • Political Geography: Europe