The Haiti Paradigm, Twenty Years After

Northern Ireland Legal Quarterly, 2019

SSRN Electronic Journal, 2015

History is a key context for understanding the authority of the European Court of Human Rights (ECtHR or Court). 1 This half-century old international court (IC) has operated in contexts as different as the Cold War and decolonization, the emergence of the political and economic process of European integration, the post-Cold War period and, most recently, the geopolitical power shift that has prompted new transnational projects and alliances beyond Europe. The ECtHR's long period of operation and the different socioeconomic and geopolitical conditions under which it has evolved are also reflected in the institutional evolution of the Court from a traditional, nonpermanent IC that met occasionally in smaller premises to a permanent court proudly perched on the River Ill in Strasbourg, France. Moreover, the ECtHR has changed from being the product of a Cold War political compromise to a high-profile and influential IC with de facto supreme jurisdiction over European human rights.

SSRN Electronic Journal, 2000

2021

This article examines the changing balance established by the European Court of Human Rights (ECtHR) between human rights filters to extradition and the obligation to cooperate and how this shift of rationale brought the Court closer to the position of the Court of Justice of the European Union (CJEU) in that respect. The article argues that the ECtHR initially adopted a position whereby it prioritised human rights concerns over extraditions, but that it later nuanced that approach by establishing, in some cases, an obligation to cooperate to ensure proper respect of human rights. This refinement of its position brought the ECtHR closer to the approach adopted by the CJEU that traditionally put the obligation to cooperate above human rights concerns. In recent years, however, the CJEU also backtracked to some extent from its uncompromising attitude on the obligation to cooperate, which enabled a convergence of the rationales of the two Courts. Although this alignment of the Courts w...

Democratization, 2017

The European Court of Human Rights (ECtHR) is widely regarded as the most important human rights court worldwide. This article investigates the extent to which the court addresses cases from countries with the worst human rights performance. Using a new data set on all ECtHR judgments from 1995–2012, the analysis suggests that the ECtHR does not deliver its judgments against members of the Council of Europe with the worst human rights records, but instead against more democratic and affluent states. The reason is that litigating in front of a supranational court requires capacities that vulnerable people are unlikely to possess, except when aided by transnational advocacy groups. However, more judgements are issued against countries that lack independent judiciaries, where cases are less likely to be resolved at the domestic level. While the ECtHR might not address the worst human rights crimes, it plays a subsidiary role in the European human rights protection system by compensating for weak domestic judiciaries. However, the court’s inability to independently pursue litigation, together with the lack of capacity in some countries to bring cases forward, have hampered more effective protection of human rights for the most vulnerable in Europe.

Northwestern Journal of International Human Rights (Vol. 11, No. 1), 2013

Towards Convergence in International Human Rights Law

when operationalising their activities. Such flexibility has led to a diversity of methodologies, and to the progressive expansion of the competences of special procedures through practice, adding to the complexity of the functions they have come to fulfil. Today, most special procedures cover not only the examination of situations of gross violations of human rights, but also extend to the consideration of complaints from individuals; the use of 'urgent appeals' to protect the life and/or physical integrity of people allegedly under imminent risk; the conduct of fact-finding missions; the provision of technical assistance; and the codification of emerging norms of international human rights norms[1]. 4 This latter activity will form the prime focus of this chapter. This chapter explores the contribution of mandate holders of special procedures to the coherence of international human rights standards using as a paradigm their diverse interpretation of the legal framework, which serves as the basis of their operations. It evaluates the extent to which the human rights norms developed by the special procedures are consonant with other international efforts to regulate the same matters. The chapter is divided into four sections. Sections 1 to 3 provide an overview of the role of special procedures in the creation and/or consolidation of new norms of international human rights in the context of clarifying their own scope of competences. Special attention is paid, in the final section, to the most salient human rights instruments drafted by mandate holders, understanding as such, those that have received approval or endorsement by their parent body, the Commission on Human Rights and, sometimes, also the General Assembly. Whether these efforts contribute to the strengthening of emerging trends in international law (for example, the recognition of the right to water, or sexual orientation as human rights issues), or whether they add a layer of complexity to the quest for supporting the universality of human rights on the basis of the existence of uniform norms on a given topic, remains an open question, as will be demonstrated.