Публикации по праву Конвенции и практике ЕСПЧ на английском — январь 2015

Общедоступная публикация:

Reconstructing the Effective Control Criterion in Extraterritorial Human Rights Breaches: Direct Attribution of Wrongfulness, Due Diligence, and Concurrent Responsibility by Vassilis P. Tzevelekos. Michigan Journal of International Law (vol. 36, no. 1, 2015) [spoiler title=”Abstract”]The paper discusses the rather thorny question of extraterritoriality in human rights protection and the effective control criterion developed by the European Court of Human Rights with a view to delimit territorially the ambit of human right obligations. By first deconstructing, and then reconstructing, the effective control doctrine, the paper defends the universalist nature of human rights protection. At the same time, it explains why and how extraterritoriality in human rights protection may lead to concurrent responsibilities on the part of multiple states for the same wrongful situation or result. Through this, the Article maps the role of effectiveness in the exercised control in extraterritorial human rights protection and develops a model for concurrent state responsibility. Considering more broadly effectiveness, the study finally argues that, next to the classic legal bases, effectiveness too may activate due diligence obligations requiring a state that is effectively linked to a wrongful situation to be proactive and protective.

The analytical basis of the Article is the distinction it makes between directly attributable wrongfulness, that is, wrongfulness caused by the state (negative human rights obligations), and responsibility for lack of diligence, that is, for failure to apply in human rights protection the positive measures that are necessary and available to the state so that it prevents or remedies wrongfulness (positive human rights obligations).

The first major argument of the study concerns the famous criterion of effective control in extraterritoriality. This part argues that, in the case of direct attribution, a state shall be responsible every time wrongful conduct is attributable to it, without regard to whether wrongfulness is taking place within or outside its national territory. The only task effective control may be called to carry out in that case is to serve as a criterion for attribution, in conformity with the norms of the International Law Commission on state responsibility. However, in the case of extraterritorial wrongfulness for breach of the principle of due diligence, effective control does have a role to play. Effectiveness is one element among many to be taken into consideration when assessing the standards of diligence a state can — and therefore is legally obliged to — demonstrate. Because due diligence is an obligation of means, its standards are flexible and subjective in that they depend on the particular circumstances of each distinctive case.

The paper’s second primary argument relates to concurrent state responsibility. In the context of the study, concurrent responsibility is the idea that more than one states will be concurrently responsible for a single wrongful result, owing to the combination of a directly attributable to a state wrongful act that causes the result, and to the failure of one or more other states to fight that wrongful result — amounting to a breach on behalf of the second category of states of the principle of due diligence — that had been directly caused by another state or, more generally, another subject of international law or even a general situation that cannot be attributed to a particular person. Directly attributable wrongfulness and responsibility for lack of diligence interact in a complementary way, leading to the concurrent responsibility of more than one state for the same wrongful result or situation. One wrongful result, severability of the breaches of the primary obligations by several, respectively, states; this is in a nutshell the concept of concurrent responsibility. In principle, one (or more) states will be objectively responsible because of directly breaking the law, whereas, more other states may be subjectively responsible because of their failure to fight the wrongful result that has directly been caused by the former state. The model of concurrent state responsibility identified in the paper may find application in a variety of scenarios and situations that extend beyond human rights.

Finally, the paper attempts to chart the role of effective control, and effectiveness more generally. In addition to serving as a criterion for direct attribution (a de facto organ) in the frame of state responsibility, and as an element in determining the standards of due diligence a state must demonstrate, effectiveness has a third dimension. This dimension stems from the maxim of ex facto oritur jus (the law arises from the facts). The law arises from the facts, and reality may generate legal obligations. The existence of any type of nexus, either legal or factual, between a state and a given wrongful situation expands that state’s sphere of jurisdiction and requires it to actively fight wrongfulness–to the extent, of course, that this is possible to it, and as long as the means it chooses in that end are lawful.[/spoiler]

Публикации, полнотекстовые версии которых не являются общедоступными:

Judgments of the European Court of Human Rights – Effects and Implementation by Anja Seibert-Fohr and Mark E. Villiger [spoiler title=”Abstract”]This volume deals with the domestic effects of judgments of the European Court of Human Rights as a challenge to the various levels of legal orders in Europe. The starting point is the divergent impact of the ECtHR’s jurisdiction within the Convention States. The volume seeks new methods of orientation at the various legal levels, given the fact that the Strasbourg case law is increasingly important for most areas of society. Topical tendencies in the case law of the Court are highlighted and discussed against the background of the principle of subsidiarity. The book includes a detailed analysis of the scope, reach, consequences and implementation of the Court’s judgments and of the issue of concomitant damages. At the same time the volume deals with the role of domestic jurisdictions in implementing the ECtHR’s judgments. Distinguished Judges, legal academics and practitioners from various Council of Europe States are among the contributors to this volume, which succeeds in bringing divergent points of view into the discussion and in developing strategies for conflict resolution.[/spoiler]

S.A.S v France: Supporting ‘Living Together’ or Forced Assimilation? by Hakeem Yusuf. International Human Rights Law Review (vol. 3, no. 2, 2014) [spoiler title=”Abstract”]The Grand Chamber of the European Court of Human Rights has upheld the French law which prohibits the concealment of one’s face in public places. The law is directed principally at prohibiting Muslim women covering their faces in public spaces in France. The decision of the Strasbourg Court is premised on the French notion of ‘le vivre ensemble’; ‘living together.’ This critical analysis of the judgment contends that the decision is flawed and retrogressive for women’s rights in particular and undermines the socio-cultural rights and freedoms of individuals who belong to minority groups in general. On wider implications of the decision, it is worrisome that the decision appears to pander to dangerous political leanings currently growing in many parts of Europe and beyond. The Court risks promoting forced assimilation policies against minorities in various parts of the world. To illustrate its implications, the article highlights the experience of the Uyghurs, a Turkic ethnic group in Xinjiang Uyghur Autonomous Region of China.[/spoiler]

The European Court of Human Rights and Access to Information by Florian Lehne and Paul Weismann. Human Rights Law Review (vol. 3, no. 2, 2014) [spoiler title=”Abstract”]This contribution analyses the judgment of the European Court of Human Rights (ECtHR) in Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung eines wirtschaftlich gesunden land- und forstwirtschaftlichen Grundbesitzes v Austria1 which was handed down in November 2013. In this judgment, the Court affirmed a violation of Article 10 of the European Convention on Human Rights (echr), because an Austrian appellate authority refused entirely to provide access to its past decisions. After an introduction into recent developments regarding the ‘right to receive information’, the facts of the case are presented. Subsequently, the Court’s reasoning in the assessment of the case is analysed with a view to the questions ‘interference’, ‘prescription by law’, ‘legitimate aims’ and ‘proportionality’ (stricto sensu). The Court’s supplementation of the traditional concept ‘public watchdog’ by the new notion of ‘social watchdog’ shall be outlined and a critical view on this legal innovation shall be provided, also with regard to the Court’s recent case law which is already pointing in this direction.[/spoiler]

The Use of Documents Other than the European Convention on Human Rights and Its Protocols in Cases Before the European Court of Human Rights: Reflections from and upon a Users’ Perspective by D. Staes. Human Rights & International Legal Discourse (vol. 8, no. 2, 2014) [spoiler title=”Abstract”]With globalisation has come a gradual increase in the diversity of documents situated within and outside the domain of human rights. Surrounded by this chaotic context, the judges of the European Court of Human Rights now import numerous and various external documents to help apply and interpret the European Convention on Human Rights and the Protocols thereto. To address this phenomenon, this article starts from and reflects upon a users’ perspective on human rights. This bottom-up approach focuses on the judges’ dynamic use of external documents and, more particularly, on the opportunities introduced by the practice as well as its effects. The Strasbourg judges have spontaneously developed this referencing practice, possibly encouraged by (third) parties in cases before them. They refer to a wide range of documents both within and outside the human rights domain, taking a broad view on the diversity of documents potentially relevant to considering a case. The latter observation should not imply that the judges’ view is ‘integrated’: from case law examples it seems that, depending on the particular judicial motives, tendencies towards both integration and opposition result from the importation of external documents. Evaluating the referencing phenomenon from a users’ perspective demonstrates that the effects of coordination and opposition may both be desirable.[/spoiler]

Interpreting the European Convention on Human Rights in Light of Emerging Human Rights Issues: An Older Person’s Perspective by M. De Pauw. Human Rights & International Legal Discourse (Vol. 8, no. 2, 2014) [spoiler title=”Abstract”]Older men and women have been identified as facing many human rights violations, yet provisions protecting this category are scattered over a large number of highly diverse instruments. Notwithstanding increased calls for a global binding instrument, European States in particular are reluctant to draft such a new human rights treaty. Although important soft law developments have taken place at the level of the Council of Europe – such as the new Recommendation on the promotion of the human rights of older persons – a treaty tailored to the needs of older persons does not exist at the regional level either. This has not, however, held back older persons from bringing their claims in terms of the European Convention on Human Rights (ECHR) before its monitoring body. This paper aims to assess to what extent the specific needs of older persons have been integrated into this regional human rights mechanism, based on an analysis of relevant cases brought before the European Court of Human Rights. In other words, this paper aims to establish whether interpreting the ECHR from an older persons’ perspective has or can have both an integrating and strengthening effect on the protection of the rights of older persons in Europe.[/spoiler]

The making of the Court’s homosexual: a queer reading of the European Court of Human Rights’ case law on same-sex sexuality by Damian Gonzalez-Salzberg. Northern Ireland Legal Quarterly (vol. 65, no. 4, 2014).

The Democratic Legitimacy of International Human Rights Conventions: Political Constitutionalism and the European Convention on Human Rights by Richard Bellamy. European Journal of International Law (vol. 25, issue 4, 2014) [spoiler title=”Abstract”]International Human Rights Courts (IHRCts), such as the European Court of Human Rights (ECtHR), have come under increasing criticism as being incompatible with domestic judicial and legislative mechanisms for upholding rights. These domestic instruments are said to possess greater democratic legitimacy than international instruments do or could do. Within the UK this critique has led some prominent judges and politicians to propose withdrawing from the European Convention on Human Rights (ECHR). Legal cosmopolitans respond by denying the validity of this democratic critique. By contrast this article argues that such criticisms are defensible from a political constitutionalist perspective but that International Human Rights Conventions (IHRCs) can nevertheless be understood in ways that meet them. To do so, IHRC must be conceived as legislated for and controlled by an international association of democratic states, which authorizes IHRCts and holds them accountable, limiting them to ‘weak review’. The resulting model of IHRC is that of a ‘two level’ political constitution. The ECHR is shown to largely accord with this model, which is argued to be both more plausible and desirable than a legal cosmopolitan model that sidelines democracy and advocates ‘strong’ review.[/spoiler]

Non-retroactivity, Candour and ‘Transitional Relativism’: A Response to the ECtHR Judgment in Maktouf and Damjanović v. Bosnia and Herzegovina by James A. Sweeney. Diritti umani e diritto internazionale (vol. 8, no. 3, 2014) [spoiler title=”Abstract”]This contribution makes a close analysis of the recent ECHR judgment in “Maktouf and Damjanović v. Bosnia and Herzegovina”, which resulted in the release from prison of perpetrators of genocide at Srebrenica. The article examines ECHR cases on non-retroactivity, and traces their development in transitional cases back to the ‘”Berlin Wall” cases’. Two main arguments are made: first it was not necessary to release the applicants in the “Maktouf” case, even though they won in Strasbourg, because they only challenged their sentence rather than their guilt; and second, that the case can be situated in a complex transitional “milieu” where states, like Bosnia & Herzegovina, may ask for – but only occasionally receive – a form of ‘transitional relativism’.[/spoiler]

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