Regional protection/Europe

Question 1

Which regional systems exist? Specifically, which regional courts exist?

Answer 1

Africa, Americas, Europe (ECtHR), Arab states (not in force), ASEAN

Question 2

What are som strengths with regional protection of human rights?

Answer 2

• can act as a conduit, making int. human rights local
• protects from the critisims that human rights regimes are the imposition of the values of Western states on the rest of the world
• can make local and regional human rights a global concern (human rights law and interpretation developed in on regional system often travel to the UN as well as other regional systems over time)
• important enforcement mechanism of int. human norms (more consensus)
• an added value in reinforcement, development, and enforcement of human rights

Question 3

What are some downsides with regional protection of human rights?

Answer 3

• development of human right norms (might not devlop norms that are at the UN level, potentially in conflict with global human right norms)
• may have a different interpretation of similar provisons from UN human right bodies or from each other
• can therefore destabilize the universal int. human rights law
• may cause int. human rights to fragment, sending mixed signals to victims about prospects of successful remedies regionally and internationally - may in turn undermine efforts for the protection and promotion of human rights domestically

Question 4

What does it mean that regional systems (ex. ECtHR) interpret human rights treaties as a ‘living instrument’?

Answer 4

This means that the interpretation of provisions are responsive to changing social, political, and moral developments in contemporary societies. (dynamic interpretation)

Question 5

What does ‘harmonious interpretation’ mean?

Answer 5

The regional systems interpret human rights-based duties of states in light of states’ other obligations under int. human rights law t to ensure a harmonious interpretation

Question 6

What factors can affect the ‘margin of appreciation’ within ECtHR (wide or narrow)?

Answer 6

• the nature of the right: absolute rights, no margin, interpretation of rights that are essential to the healthy functioning of a democratic society (ex. political expression), narrow margin, social and economic policy, wide
• interpretation of domestic courts when balancing competing rights and national legislatures carefully balancing rights, wide margin (better at deciding on facts then ECtHR)
• consensus: lack of European consensus, wide margin

Question 7

What is the concept of subsidiarity in the ECtHR?

Answer 7

The primary responsibility to implement the ECHR is at a national level, the ECtHR looks at if the state has done so correctly

Question 8

What does ‘autonomous meaning’ mean in the ECtHR?

Answer 8

It means that the national law meanings are not dispositive on how the court will interpret something, the ECtHR does not care how national law treats the matter, it will make its own assessment

Question 9

How are the ECtHR judgments enforced?

Answer 9

• the verdict are binding as a matter of int. law, see art. 46 (1) of ECHR
• the CoE committee of ministers supervises the execution of the judgment
• ulimately the state can be suspended of its voting rights in CoE and/or expell from the CoE (happened to Russia)

Question 10

What are the main arguments of Spanó on the development of the ECtHR?

Answer 10

• substantive embedding phase from mid-1970s
  
  • formulation of overarching principles: living instrument, autonomous meaning, effectiveness, subsidiary (margin of appreciation)
  • development of the content (general principles) of each substantive right
  • seekinf to formally embed the convention at a national level (incorporation)
• procedural embedding phase from 2000-2010-ish
  
  • emphasizing that the ECHR is applied at the national level, process-based review
  • subsidiarity
  • tools: a higher threshold for exhaustion of domestic remedies (actually allowing the domestic courts to ‘fix’ the problem), general principles formulated by ECtHR to be applied by domestic courts or legislatures, flexible margin of appreciation (if the domestic institutions have done a good job in applying the correct framework as developed by the ECtHR, they get a wider margin of appreciation)

Question 11

What is the council of Europe? And how does relate to the ECHR?

Answer 11

• was founded in 1949 by 10 west european liberal democracies as one of several Cold War initiatives to promote interdependence, common identity and collective security
• they have, amongst other things, established the ECHR

Question 12

Explain, in summary, the procedure before the ECtHR, including the main stages of the proceedings, the number of judges, the role of the Grand Chamber

Answer 12

• filling of an application for the court: where an individual or group alleges a violation of their rights under ECHR
• admissability assessment prior to the merits
  
  • if inadmissable, application is rejected and merits will not be evaluated

Simple case-processing flow by judicial formation
- committee (3 judges): can be rules admissable and judged on merits at the same time or seperately in
- single judge: given when the case will be dismissed on admissability grounds
- chamber (7 judges): admissability and merits can be made together or separately
- grand chamber (17 judges): when the chamber has decided on the admissability and merits - exception, the chamber can relinquish jurisdiction and send the case straight to the grand chamber -it can be referred (by the state or the applicant) to the grand chamber to take the case
- when a final judgment is made, the committee of ministers (in the CoE, meaning by the states themselves) execute the judgments