Theories of Human Rights: Political or Orthodox – Why It Matters

SSRN Electronic Journal, 2018

The Vienna Convention on the Law of Treaties sets the rules of treaty interpretation in articles 31-33. Yet these rules are quite vague, and they leave a lot of room for judicial discretion. The European Court of Human Rights ("ECHR" or "the Court") has developed its own version of these rules of interpretation-a version that tracks the three traditional approaches to treaty interpretation: the textual approach, the subjective approach, and the teleological approach. Looking at the practice of the ECHR through the lens of these three traditional approaches highlights the logic of some of the court's interpretive choices, including its doctrine of deference: the Margin of Appreciation.

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.

Universal Civil Jurisdiction, 2020

The European Convention Human Rights system, despite being the most effective system in providing individual protection of civil and political rights, is currently facing numerous problems. One of the biggest problems is the European Court of Human Rights overload. The expansion of the Court's caseload can be attributed to a combination of several factors one of which is the extensive judicial interpretation of Convention rights to a variety of claims, which at the inception of the system states were not initially intent upon addressing. As a human rights treaty where numerous provisions have been drafted with a lack of precision the Convention is subject to interpretation that is done by the Court since the judges have to interpret and define law in concrete situations, and not just apply it. For that reason the Court has developed numerous principles of interpretation of the Convention and this paper looks at the most important ones. The interpretative principles of the Court can be divided in two groups, related to the direction in which the judicial creativity led. The first group represents judicial self-restraint principles of interpretation where the judges used one of the four following principles: intentionalism, textualism, margin of appreciation or the doctrine of fourth instance. On the other side, the judicial activist methods of interpretation, as used by the judges' of the Court are the living instrument doctrine or evolutive interpretation, the doctrine of effectiveness or innovative interpretation, and the doctrine of an autonomous concept. This paper will look at all those principles as well as at the negative consequences of the inconsistency of their use.

Krytyka Prawa, 2022

The article is devoted to the study of the correct application of the evaluative con cepts contained in the norms of the Convention for the Protection of Human Rights and Fundamental Freedoms. Attention is drawn to certain difficulties in the appli cation of the evaluative norms in the Convention: despite their objective necessity and usefulness, they create a room for the law enforcement entity's own discretion up to subjectivism in resolving specific cases; they serve as an objective obstacle to the unification of the case law of the ECtHR and this creates preconditions for unequal implementation of ECtHR judgments in the national legal order; they cause the risk of errors in the application of the provisions of the Convention by the competent authorities of the Contracting States. It is established that the application of legal norms containing evaluative concepts is challenging not only owing to the specific properties of the evaluative concepts themselves, but also due to the peculiarities of adjudication by the ECtHR when applying the evaluative norms. The relevant case law of the ECtHR as well as examples of national legislation are analysed in support of these theoretical conclusions. Since the lack of uniform application of the evalua tive norms of the Convention causes divergent use of the ECtHR's judgments in the domestic judicial system, it is advised to follow a number of rules for reasoning of decisions by the domestic court. These rules will serve as a certain guarantee against ambiguous implementa tion of ECtHR judgments at the national level.

In: New Developments in Constitutional Law. Liber Amicorum for András Sajó. Eds. Iulia Motoc, Paulo Pinto de Albuquerque, Krzysztof Wojtyczek, The Hague, Eleven, 2018

Human Rights Quarterly, 2019

18(1) Global Community Yearbook of International Law and Jurisprudence 2019, (Oxford University Press: 2020), 2020

Academic analysis of pronouncements of human rights treaty monitoring bodies has tended to focus on their contribution to the promotion of human rights in domestic jurisdictions, particularly to convey the desire of scholars to see more use of these pronouncements by domestic courts. Comparatively little attention has been paid to the issue of their legal status in light of the supervisory function of human rights monitoring bodies. The following paper starts with a thorough analysis of a few recent cases by national courts, which commented on the legal value of the work of these bodies. The paper then challenges two recurring arguments in the legal scholarship: their assimilation to judicial bodies, and the existence of a procedural obligation on States to consider their views. Next, it focuses on the interpretive weight of the pronouncements of these treaty bodies in international law, and, accordingly, in national jurisdictions. The paper argues that the alleged existence of a general procedural obligation on States to consider the pronouncements of human rights treaty monitoring bodies is controversial, and that their work does not have a specific, or privileged, legal position in defining the ordinary meaning of a treaty. The conclusions point out that supervisory bodies have a specific and important role in the international legal order, different from that of courts, which bears preserving.

Wisconsin International Law Journal, 2018

This article offers a new take on the diagnosis of the crisis of the European human rights system by focusing on the diversification of the attitudes towards the European Court of Human Rights by national compliance audiences, namely domestic executives, parliaments, and judiciaries. This diagnosis holds that national compliance audiences of the European Court of Human Rights can no longer be characterized as lending overall support to the human rights acquis of Europe, that centers around the European Court of Human Rights as the ultimate authoritative interpreter of the Convention. Instead, alongside states that continue to lend overall support to the Court’s authority over the interpretation of the Convention, two new attitudes have developed towards the Convention across the Council of Europe. First, there are now national compliance audiences that demand co-sharing of the interpretation task with the European Court of Human Rights. Second, there are national compliance audiences that flaunt well-established Convention standards, not merely by error, or lack of knowledge of adequate application, but with suspect grounds of intentionality and lack of respect for the overall Convention acquis. Following this diagnosis, I argue that instead of holding on to a business as usual attitude, the Court has also developed coping strategies in order to handle this fragmentation by investing in a human rights jurisprudence of a variable geometry, recognizing differentiation in the individual circumstances of states as a basis for human rights review.

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