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Freedom of religion did not become a legal reality until the modern era (e.g., through the First Amendment), and even as late as the Second World War, one global study declared a total absence of “a generally accepted postulate of international law that every State is under legal obligation to accord religious liberty within its jurisdiction.” However, in the relatively brief historical period since, freedom of religion or belief has become just such an accepted postulate of international law. This chapter explores key elements of that development, beginning with an examination of religious liberty provisions in international human rights law—the major documents and treaties, as well as issues of special concern. Next, it briefly considers two additional sources of international rights monitoring and enforcement: the U.S. Commission on International Religious Freedom and the European Court of Human Rights. Finally, it discusses the twentieth-century contributions of religious institutions to religious liberty, focusing on the role of the Catholic Church in elaborating a moral foundation for religious freedom and championing it as a pathway to peace.

This chapter examines the role of the Advocate General within the context of human rights. It discusses the case-law of the European Court of Human Rights. It then considers the single occasion on which the European Court of Human Rights had reason to examine the question of the Advocate General in the proceedings of the European Court of Justice — the case of Emesa Sugar. It argues that for the moment, the European Court of Justice appears to have set itself against a full consideration of the human rights aspects of its procedures insofar as they concern the function of the Advocate General.

This chapter examines the jurisprudence of two European courts — the European Court of Human Rights and the European Court of Justice — on the right to privacy to scrutinize Europe's emerging constitutional culture. Against a backdrop of rapid technological innovation, Europe's different national communities recognize a right to privacy but differ in their definition of the private sphere and the circumstances in which the right to privacy should give way to other values such as freedom of expression. Using the theory of constitutionalism patriotism, the chapter argues that the two European courts should acknowledge and accommodate national diversity on the right to privacy. The deferential approach of the European Court of Justice is applauded and the European Court of Human Rights is encouraged to make greater resort to the doctrine of margin of appreciation in its decision-making.

The chapter begins by reflecting on the significance of the ECHR from the perspective of international law in 1950. It closely examines the substantive text of the ECHR as well as the original scheme for its enforcement. There is a focus on the three institutions of control (the European Commission of Human Rights, the European Court of Human Rights, and the Committee of Ministers) and how they were expected to function in the 1950s. The second half of the chapter reflects on key aspects of the Convention's evolution over the period since the 1950s. Examined in turn are: the way the States ratified the Convention and accepted its optional clauses; the rate at which individual applications were received by the Commission, and judgments were delivered by the Court over the years; how the three institutions of control functioned, noting their interrelationships; the increased focus that was placed on the procedural position of the individual applicant over the years; the increasingly influence that the Convention had as a means of instituting law reform domestically; how the Court grew in stature and role so as to become a type of ‘quasi-constitutional’ court; the progress that was made over the years as to the incorporation of the Convention into domestic law by the States; and the creation of and the rate of acceptances of Protocols added to the ECHR.

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 explores whether corporate human rights protection is in agreement with the basic structures of European Convention on Human Rights (ECHR) protection. It suggests a foundation upon which the European Court of Human Rights's approach to corporate litigation may be analysed and made sense of. This is done firstly by addressing the criticism often seen and heard against the fact that companies and other corporate actors make use of human rights law for the protection of their own interests. The chapter uses illustrations from the ECHR discourse in the United Kingdom and explains further why it is that companies are principally welcomed in the ECHR's legal order, but why they nonetheless tend, on occasion, to be met with a particular type of treatment by the Court. The ECHR builds on a European liberal system which fundamentally welcomes and facilitates private enterprise. The social dimensions of European liberalism and the pervasiveness of the regulated market model may well mean that corporate reliance upon ECHR guarantees may fail if up against certain public interests.

The accession of Central and Eastern European states into the Council of Europe and therefore the European Court of Human Rights system, prompted a shift of the European Court of Human Rights towards a quasi-constitutional role. The Court moved beyond the simple identification of incorrect individual decisions (in largely Western countries) towards the consideration of systemic legal defects, triggered by structural problems within the new CEE Member States, and further facilitated by collaboration between the Court and the national constitutional courts of the new Member States. The emergence of so-called ‘pilot judgments’ (which mainly originate from CEE states) is the best and most recent illustration of this trend. The way in which a national court may form a de facto alliance with the European Court of Human Rights effectively ‘pierces the veil of the State’ and positions the European Court as a quasi-constitutional judicial body at the pan-European level.

This chapter provides an overview of the protection afforded to freedom of religion and belief under international law and discerns some trends as to how the rights are being interpreted and applied. It considers the relevant provisions which exist in universal and some regional treaties as well as in various formally non-binding documents which refer to the rights in question. It examines in detail the approach of some of the relevant bodies in interpreting aspects of those provisions, in particular the European Court of Human Rights and the Human Rights Committee. It argues that despite the longstanding recognition of the need for religious rights to be protected in international law, there is not in the Rawlsian sense, a consensus at the international (both universal and regional) level as to the core of the rightsin question and the permissible limitations on exercising them.

The chapter examines the situation of the ECHR in the 1990s, up to 1998, when Protocol 11 entered into force. The first part addresses the higher profile of the ECHR system and its Court in the 1990s, and how the Court was increasingly seen as a type of quasi-constitutional court for Europe. It considers the important case of Loizidou v Turkey (Preliminary Objections), which had important implications for the status of the Convention's optional clauses and the right of individual petition. It also covers the early expansion of the Convention system, as new States from central and eastern Europe started to ratify the ECHR. Next, Protocol 11 is examined. It looks at the negotiation of the Protocol and what it established. A key issue here was the United Kingdom's reluctant acceptance that the right of individual petition should become a mandatory feature of the ECHR. The final part of the chapter addresses the circumstances in which the new, permanent Court of Human Rights was born. There were concerns as to how it could survive even before Protocol 11 entered into force and these are discussed.

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.

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 provides an historical and systematic account of the human rights of religious associations. Against the background of diverse ways in which international law engages with religion, it traces the development from individual to collective rights in the Krishnaswami Report, under the International Covenant on Civil and Political Rights 1966 and other international and regional instruments, and in the work of the Human Rights Committee and the Special Rapporteur on Freedom of Religion or Belief among others. However, the main focus is on the contribution of the Council of Europe and the European Court of Human Rights, the case law of which on religious associations is extensively covered and subjected to critique in terms of ten categories of right. It concludes that in spite of a new and substantial body of emerging European human rights law, some other international commitments are more extensive.

This chapter describes the standard development of a case that arrives in Strasbourg to show the various opportunities for the settlement of a case in the different phases of the proceedings. The chapter examines when friendly settlements come into play in the normal progression of an application before the Court. As the legal framework has changed in the last twenty years, the chapter reflects the roles of the different actors involved in friendly settlements following the various reforms. Further, it reviews the practice of the former European Commission of Human Rights by showing the peculiarities and the continuation of the scheme. The main focus is, however, the period from 1998 until 2009 and the legal framework in force at that time.

The chapter begins by providing an overview of the expansion of the Strasbourg jurisprudence in the 1980s. It then examines how the ECHR system further evolved over the same period, focussing on several key areas. Firstly the status of the individual applicant in proceedings before the European Court is addressed — it is observed that the individual applicant became more and more the focal point. Next, the approach taken by the Court to issues of ‘just satisfaction’ is examined. After this, the evolving role of the Commission and the Committee of Ministers is addressed, including the crucial role of the former in terms of deciding whether to refer cases to the Court or to the Committee of Ministers. As to the Committee of Ministers it is observed that this played an increasingly subservient role to the Commission, such that, in effect, the latter almost became a court of first instance. A further section examines how matters developed as regards the role and function of the Committee of Ministers when it came to supervising the implementation of Court judgments. The last part of the chapter looks at the largely unsuccessful efforts made in the 1980s to secure a reform of the ECHR system, when the proposal was put forward for a merger of the Commission and the Court.

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 examines the origins and first proposals for a European Convention on Human rights, as well as the origins of the Council of Europe. It discusses the first proposals for a European Court of Human Rights, as advocated by the European Movement and proceeds to address the drafting of the ECHR by the Consultative Assembly of the Council of Europe. It is argued that the first proposals for the Convention were for a type of European collective pact against totalitarianism. However, the proposals for the Convention that emerged from the Consultative Assembly were such that there was a potential for the Convention to become a European Bill of Rights.

The aim of this book is to discuss the most abstract and general issues that the interpretation of the European Convention on Human Rights (ECHR) raises. The more important the ECHR becomes in European law and politics, the greater the need to reflect on the moral foundations of rights and to insist that courts apply consistently principles of interpretation that can be justified as a matter of abstract values of political morality. This introductory chapter outlines the three specific issues that form the subject matter of this book. First, the worry that the judges of the European Court of Human Rights will exercise illegitimate judicial discretion if they interpret the Convention in a creative way. Second, the controversy over the interpretive methods actually used by the Court. Finally, the extent to which the Court's interpretation of the Convention rights conforms or should conform to the moral foundations of human rights.

This chapter addresses the drafting of the ECHR by the governments of the Council of Europe. It starts with an examination of the approach to the ECHR taken by the Committee of Ministers in late 1949, and then looks at the work of the Committee of Legal Experts and the Conference of Senior Officials. It then turns to how the drafting of the ECHR proceeded when before the Committee of Ministers, and the important compromise that was made as regards the right of individual petition. A further section examines how the Convention was viewed by academics and others when it was opened for signature in 1950 and in the years after. The mood was one of disappointment and frustration at the lack of achievement. In the final section the theme is the ambivalent nature of the ECHR as it stood in 1950: was it merely a collective pact against totalitarianism or was it a European Bill of 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.