Search Results

This chapter examines the reception of the ECHR in the UK and Ireland both before and after incorporation. Both countries incorporated the ECHR using roughly the same model. One might have assumed that the mode of incorporation into a dualist legal order would largely determine outcomes. In Ireland and the UK, however, the impact of acts of incorporation was heavily mediated by pre-existing constitutional structure and practice.

Chapter 4 analyses the European human rights regime, often regarded as a prime example of constitutionalization beyond the state. At closer inspection, this description turns out to be misguided—the regime is better regarded as pluralist, as characterized by a heterarchical relationship between its constituent parts that is ultimately defined politically and not legally. The chapter traces the emergence and workings of this pluralist order through the interaction of the European Court of Human Rights with domestic courts in Spain, France, the European Union, and the United Kingdom. These cases not only show conflicts over questions of ultimate supremacy but also significant convergence and harmony in day-to-day practice. The analysis suggests that central characteristics of pluralism—incrementalism and the openness of ultimate authority—have contributed substantially to this generally smooth evolution.

This chapter examines the socio‐politics of bill of rights debates and outcomes in the United Kingdom including, in particular, the origins of the Human Rights Act (HRA) (1998). Following a brief chronological overview, the first part of the chapter explores the forces which have fuelled the gradually increased background pressures for a bill of rights. Since the 1960s, a postmaterialist rights lobby of civil libertarians and social equality seekers not only emerged politically but came to advocate for a bill of rights. The United Kingdom's participation in the European Convention on Human Rights (ECHR) also encouraged and shaped the domestic formalization of rights, particularly as instantiated in the HRA. The second part of the chapter explores the much more sporadic nature of elite political interest in a bill of rights. Focusing on the genesis of the HRA, it argues that this was politically triggered by Labour and the left's ‘aversive’ reaction against the perceived authoritarianism of Margaret Thatcher's Conservative Administration. The chapter closes with a brief consideration of the prospects of a fully indigenous British bill of rights designed either to complement or replace the HRA.

This chapter looks at the child's right to privacy. It argues that whilst in theory children have a right to privacy under Article 8 European Convention on Human Rights (ECHR), in practice there is an absence of rights-based reasoning in the privacy jurisprudence concerned with children. The chapter considers a number of areas in which the courts have been faced with cases relating to Article 8 ECHR privacy rights of the child. By analysing the manner in which the courts have addressed the right in these cases, it becomes apparent that the only situations in which the courts have given serious consideration to the child's right to privacy are situations in which either a high degree of protection is afforded to that privacy-related interest in the adult context or where the child is vulnerable to a clearly identifiable harm. This is problematic because the right to privacy is not usually, and should not be, contingent upon the individual suffering harm. Moreover, children may require greater and different privacy protection than adults. It is therefore argued that the child's right to privacy is not being adequately analysed or protected.

This chapter discusses the reception of the ECHR in Greece and Turkey. Both countries ratified the ECHR almost simultaneously in the 50's, without critically and rigorously scrutinizing their domestic laws as to their conformity with the ECHR, and despite theoretically recognizing judicial review of legislation, the Greek and Turkish courts have traditionally deferred to the other two branches of Government. However, in the last three decades, differences in the effectiveness of the ECHR in Greece and in Turkey have become increasingly visible. Following the restoration of democracy in Greece in 1975, the fundamentals of democracy and rule of law soon became commonplace. In contrast, in Turkey, the traditional resistance to reforms in the State bureaucracy, including the Judiciary, the deficient willpower of the Government's political branches for the implementation of the reforms, the rise of nationalism, and the role of the military have perpetuated the difficulties for an effective reception of the ECHR.

This chapter discusses the reception of the ECHR in Russian and Ukraine. Topics covered include the accession and ratification of the ECHR in both countries, the status of ECHR in national law, an overview of the activity of the Court, and the Court's case law and its effect on the national legal order. Despite the similar starting point for the reception of the ECHR in Russia and Ukraine, the later developments are marked by numerous divergences. The development in Russia, after a period of instability in the 1990s, led to the reestablishment of a more authoritarian rule under President Putin. Internally, Russia is struggling with the consequences of the war in Chechnya, but externally it takes a leading role in world politics and, with newly acquired self-confidence, starts to close the doors for criticism from abroad. In contrast, the transitory period in Ukraine continues.

This chapter provides an overview of the story of the evolution of the European Convention on Human Rights. It comments on the current crisis facing the Court. It then discusses the origins of the Convention and explains, in summary form, how it developed over subsequent decades. The situation of the Convention and the European Court of Human Rights over the 1950s, 1960s, 1970s, 1980s, and 1990s is examined.

Creation of the Council of Europe in the shadow of Nuremburg. History of gradual UK incorporation. European Court of Human Rights. Human Rights Act 1998. Human rights and unpopular minorities. Growth of a human rights culture among lawyers; unpopularity with politicians and media. The weak entrenchment of HRA 1998.

This chapter discusses the reception of the ECHR in France and Germany. Although both States have been active supporters of human rights and have been close partners in the construction of Europe, their courts were reluctant to refer directly and explicitly to the ECHR. The reception of the ECHR can be characterized as ‘forced’ adaptation, rather than a voluntary process: often, authorities had no choice but to adjust the national legal order to the requirements of the ECHR. In both countries, the relationship between the national courts and the European Court of Human Rights has not always been harmonious, and some tensions remain.

This chapter discusses the reception of the ECHR in Austria and Switzerland. Topics covered include the accession and ratification of the ECHR in both countries, the status of the ECHR in national law, an overview of the activity of the European Court of Human Rights, and the ECtHR's case law and its effects on the national legal order. Although both countries joined the ECHR at a relatively early stage, this starting position led to different outcomes. The main reason is because the common denominators of neutrality and federalism in these two countries are actually rather small: as Austria follows a very different concept of neutrality, it did not face any (political) difficulties before and during the ratification process. Switzerland, on the other hand, was very reluctant to join the Council of Europe and careful to avoid any concessions with regard to neutrality.

This chapter sets out the intellectual history of the protection of rights in English constitutional thought from 1689 to present, and how this approach to protecting rights was translated to the British overseas territories. It then assesses how the mechanisms for the protection of rights in the overseas territories operated during times of emergency and considers human rights violations in the colonial territories. The impact upon the British attitude to human rights in its colonial territories as a result of Britain's international obligations under the League of Nations and the United Nations as well as the European Convention on Human Rights is considered. Finally, the use of constitutionally entrenched rights in former colonies granted independence prior to 1950 is described.

This chapter discusses the reception of the ECHR in Poland and Slovakia. Topics covered include the accession and ratification of the ECHR in both countries, the status of ECHR in national law, the implementation of international law by domestic courts, an overview of case law, and the European Court's case law and its effects on the national legal system. It is shown that despite the similar historical situation of both countries, the patterns of reception of the ECHR differ considerably. In Poland, the ECHR became immensely popular and gained the status of an instrument of popular justice, resorted to by individuals in a spontaneous and unorganized manner. In Slovakia, it plays a similar role in so far as it is used extremely rarely by organized civil society institutions as a legal advocacy instrument.

This book investigates the ways in which human rights articulate with business law and practice, adopting as a facilitatory starting point approaches to the issue common in international law and constitutional law. More closely, it examines the level of protection offered company interests by the European Convention on Human Rights (ECHR). The book thus offers a study of the doctrinal response developed in Strasbourg by the European Court of Human Rights to claims for ECHR protection submitted by or on behalf of companies. It is important to appreciate that under the ECHR, the notion of companies enjoying rights protection is not disputed in principle: the Court does not per se regard corporate litigation with suspicion. This does not mean, however, that the protection of corporate interests is plain sailing in terms of ECHR law. The particular features of the corporate person and the interests pursued by such, combined with the particular structure of the ECHR and its international supervision, sometimes pose interpretative and practical challenges in terms of ECHR guarantees.

This chapter discusses the impact of the ECHR in 18 national legal orders. Topics covered include the reception of the ECHR into domestic law and practice, inputs into the ECHR legal system (applications) and the most important outputs (judgements of the Court and other decisions), the Court's impact on national legal systems, how the evolution of certain structural features of the Convention has complicated the reception process at the domestic level, and the future of the Court.

This chapter deals further with the summary execution of capital punishment or death penalty, which is carried out without regard to the numerous safeguards that international law requires to be observed in capital cases. It first details the reasons of abolition of capital punishment and the various views of international bodies. It discusses with the norms relating to the protection of the right to life, as human rights treaties treat the death penalty as an explicit exception to that right. It then analyses the Soering v. United Kingdom landmark judgement by the European Court of Human Rights with regards to that the circumstances of the imposition and execution of the death penalty may fall foul of the European Convention on Human Rights.

This chapter begins by discussing the European Convention on Human Rights (ECHR). Established in 1953, the ECHR created a basic catalogue of rights binding on the signatories, and new institutions charged with monitoring and enforcing compliance. The ECHR has since evolved into an intricate legal system. The High Contracting Parties have steadily upgraded the regime's scope and capacities, in successive treaty revisions. They have added new rights, enhanced the powers of the European Court of Human Rights (ECtHR), and strengthened the links between individual applicants and the regime. Today, the Court is an important, autonomous source of authority on the nature and content of fundamental rights in Europe. In addition to providing justice in individual cases, it works to identify and to consolidate universal standards of rights protection, in the face of wide national diversity and a steady stream of seemingly intractable problems. The methodology used to analyze the case studies presented in the subsequent chapters is described.

This chapter discusses the reception of the ECHR in Sweden and Norway. It shows that the true Europeanization of the legal systems of the two countries was initiated in the mid-90's. This legal transformation coincided with changes of an economic nature brought about by the process of globalization. From a legal point of view, globalization was brought about by the integration of two important regimes of law into the domestic system: the ECHR and the law of the European Union (EU).

This chapter discusses the reception of the ECHR in Spain and Italy. Topics covered include the accession and ratification of the ECHR in both countries, the status of the ECHR in national law, an overview of the activity of the European Court of Human Rights, and the ECtHR's case law and its effects on the national legal order. It is shown that the application of the ECHR depends not just on the formal constitutional provisions but, even more importantly, on how constitutional courts have enhanced the Convention's effectiveness through their rulings.

The interpretation of human rights treaties is widely believed to be subject to special rules, deviating from generally accepted interpretative canons of international law. The view is most clearly expressed by the European Court of Human Rights, which claims that in interpreting the European Convention on Human Rights (ECHR) ‘regard must be had to its special character as a treaty for the collective enforcement of human rights and fundamental freedoms’. This chapter argues that the Court's method of interpretation is firmly rooted within the traditional canons of interpretation of general international law, and that the method of subsidiary review does not deviate substantially from generally accepted methods of review in international law. It suggests that general principles of treaty interpretation have had — and continue to have — tremendous impact on human rights law, whereas human rights law has not had much of an impact on general international law on the methodological plane, although the substance of human rights law — alongside all other branches of international law — will of course be part of the general body of international law.

In the United Kingdom, the judges have long been engaged in the discharge of functions of a legislative as well as of a judicial character. Indeed, the responsibility of the English judges for the formulation and development of the common law predates both the establishment of Britain in its present form and the entrenchment of a democratic form of government within the nation's borders. In the 20th century, the ‘evolution’ of the tort of negligence alone saw a great expansion in the liability of property owners, public officials, and others for actions and/or omissions that could be retrospectively characterised as negligent by the courts. This chapter discusses the provisions of the Human Rights Act 1998 and the European Convention on Human Rights which, when viewed together with the Strasbourg case law, demonstrate why it is likely that the Act will have such a large impact on tort law. Some obstacles that lie in the way of a coherent reception of the Human Rights Act into UK law are also considered.