Taking Care of Strasbourg: The Status of the European Convention on Human Rights and the Case-Law of the European Court of Human Rights in Kosovo’s Domestic Legal System

This paper addresses the position of the European Convention on Human Rights (ECHR) and the European Court of Human Rights (ECtHR) case-law in Kosovo’s domestic legal order. To begin with, it reviews the background of the issue of human rights in Kosovo highlighting its distinct position and perspective. This article then analyses the position held by the European Convention on Human Rights and its protocols in Kosovo’s legal order while also addressing the ECHR’s constitutionalization, its direct effect and the constitutional review on basis of it. The paper then examines whether the case-law of the ECtHR is binding in Kosovo, whether it is directly effective, and whether Kosovo’s Constitutional Court can use it as a ground in the conduct of constitutional reviews. This paper argues that the ECHR and the case-law of the ECtHR both hold a privileged status under Kosovo’s constitutional law, despite Kosovo not being a party to the ECHR and, therefore, having no international liability to implement the ECHR. In addition, the paper offers certain arguments regarding the relative positions of the ECHR and the case-law of the ECtHR within the current practice of Kosovo’s judicial system. This paper concludes with the argument that the ECHR and the case-law of the ECtHR hold a privileged status in the context of Kosovo’s domestic legal order—one which could serve as a precedent in respecting human rights and freedoms.     

The Implications of the ASLEF Case

The decision of the European Court of Human Rights in ASLEFv United Kingdom (27 February 2007) will require the governmentto re-visit the law relating to the right of trade unions toexclude and expel individuals because of their membership ofpolitical organisations perceived by trade unions to be hostileto their interests. It is now clear—as was pointed outat the time—that the changes made by the Employment RelationsAct 2004 do not go far enough to meet obligations under theEuropean Convention on Human Rights (ECHR). However, the casealso raises much wider questions about the compatibility ofother statutory restraints on trade union autonomy with Article11 of the ECHR, notably ss 64–67 (on unjustifiable discipline)and 174–177 (on exclusion and expulsion as a whole, andnot only the measures relating to membership of hostile politicalparties). This article considers both the immediate and thewider implications of the ASLEF decision for British trade unionlaw, in the context of what appears to be a greater willingnessof the Strasbourg Court to listen more carefully to trade uniongrievances than in the past. The article also draws attentionto the role of litigation as a trade union strategy to recoverlost rights, and again emphasises the importance of InternationalLabour Organisation Convention 87 and the Council of Europe'sSocial Charter of 1961 (as well as the jurisprudence thereunder)as important sources in the construction of the ECHR, Article11.     

Protecting mental health clients' dignity — The importance of legal control

Protecting human beings' dignity is a fundamental value underlying the UN's Universal Declaration of Human Rights as well as several recommendations and conventions derived from this, among them the European Convention of Human Rights (ECHR), a declaration that also takes precedence over Norwegian legislation. Still, clients' stories inform us that their dignity is not always protected in the mental health service systems.The aim of the study has been to investigate violations of dignity considered from the clients' points of view, and to suggest actions that may ensure that practice is brought in line with human rights values.The method used has been a qualitative content analysis of 335 client narratives.The conclusion is that mental health clients experience infringements that cannot be explained without reference to their status as clients in a system which, based on judgments from medical experts, has a legitimate right to ignore clients' voices as well as their fundamental human rights. The main focus of this discussion is the role of the ECHR and the European Court of Human Rights as instruments for protecting mental health clients' human rights. To bring about changes, recommendations and practices should be harmonized with the new UN Convention on the Rights of Persons with Disabilities (2006). Under this convention, the European Court of Human Rights has support for the application of the ECHR without exemptions for special groups of people.     

Human Rights – Human Bodies? Some Reflections on Corporate Human Rights Distortion,The Legal Subject, Embodiment and Human Rights Theory

This paper responds to the subversion of international human rights discourse by corporations. It begins by placing such subversion in three contexts: the ascendance of human rights as the dominant discourse of contemporary moral and political life; the emerging challenges to human rights posed by other-than-natural-human entities; and ambiguity in the relationship between the legal subject and the human being. The author suggests that in order to resist corporate human rights distortion it is important to reclaim the language of the human for the natural human being, despite complex philosophical and definitional challenges attending the designation of the term ‘human.’ The author suggests that by re-attending to the implications of human embodiment for human rights theory it might be possible to re-invigorate the protective potential of human rights for vulnerable human beings and communities against powerful disembodied legal persons (corporations).     

Homosexuality and the African Charter on Human and Peoples' Rights: What Can Be Learned from the History of the European Convention on Human Rights?

Despite differences between the European Convention on Human Rights (ECHR) and the African Charter on Human and Peoples' Rights (ACHPR) in terms of the substantive rights guaranteed and machineries to enforce them, both instruments have been foundational in the establishment of organizations that share a common history of rejecting human rights complaints from homosexuals. Although the contemporary jurisprudence of the European Court of Human Rights (ECtHR) on homosexuality may contrast sharply with that of the African Court on Human and Peoples' Rights (ACtHPR) and the African Commission on Human and Peoples' Rights (ACmHPR) – because the ACtHPR and ACmHPR have never upheld a complaint relating to sexual orientation – the early history of the ECtHR and the former European Commission on Human Rights (ECmHR) mirrors the current African stance. This article explores what those seeking to develop gay and lesbian rights in Africa might usefully learn from the historical evolution of similar rights under the ECHR.     

Who Files Suit? Legal Mobilization and Torture Violations in Europe

The European Court of Human Rights (ECHR) is the most active international court. After decades with few allegations of human rights abuses, the ECHR docket expanded in the 1990s. Paradoxically, long‐standing democracies can have standardized violation rates of the prohibition against torture that compare to transitional democracies that struggle to protect rights. Yet it is implausible that human rights abuses increased or that established democracies engage in more torture than new democracies. Instead variations in legal mobilization generate the surge and puzzling distribution of European judgments. I argue that discrepancies between the incidence of torture and litigation reflect variations in support structures, where declared violations can reflect the level of support that individuals receive in pursuing claims rather than the incidence of torture. This dynamic is most pronounced for foreign nationals, who typically possess fewer resources than citizens to access legal institutions and encounter popular and official hostility. As a result, much European litigation concerning torture in long‐standing democracies is transnational in character.     

Trade marks are 'possessions'--but applications are not (yet)

In its decision of 11 October 2005 the European Court of HumanRights (ECHR) ruled that a registered trade mark was a ‘possession’within the meaning of Article 1 of the First Protocol to theEuropean Convention on Human Rights. The ECHR failed, however,to extend this level of protection to the particular trade markapplication at issue, thereby leaving the protection of intellectualproperty rights as fundamental rights somewhat incomplete forthe time being.     

Inhuman and Degrading Punishment,Dignity, and the Limits of Retribution

The recent judgment of the Grand Chamber of the European Court of Human Rights (ECtHR) in Vinter and others v United Kingdom provides a much needed clarification of the parameters of the prohibition on inhuman and degrading punishment under Article 3 of the European Convention on Human Rights (ECHR) as it applies to whole life orders of imprisonment under mandatory life sentences – essentially, life imprisonment without parole. The Grand Chamber's judgment refines Strasbourg doctrine on life imprisonment and the prospect of release and illuminates key principles concerning inhuman and degrading punishment under Article 3 of the ECHR. This article considers the judgment's profound significance in relation to both human rights and penology.     

Corporate Liability for International Crimes under Canada's Crimes Against Humanity and War Crimes Act

Given that the Rome Statute does not provide jurisdiction totry corporations for breaches of international criminal law,it has been suggested that national jurisdictions might be usedto fill this impunity gap. The author presents several arguments.First, the international criminal law system, including theRome Statute — and particularly the principles of universaljurisdiction and complementarity — provides the theoreticalgrounding for states to assert jurisdiction over internationalcrimes wider than the International Criminal Court (ICC). Second,Canada, owing to interactions between its domestic legislationimplementing the ICC Statute and existing national criminallaw, is now able to prosecute corporations for breaches of internationalcriminal law. Finally, this increased jurisdiction of Canadiancourts is consistent with the current status of corporationsunder international criminal law. What is really interestingabout Canada's approach, however, is not so much that it hascreated a new legal principle, but rather that it is one ofthe first countries to establish jurisdiction over internationalcrimes committed by corporate entities which were previouslycommitted with impunity.

By stating that I could not guaranteethat the army is not using forced labour, I certainly implythat they might, (and they might) but I am saying that we donot have to monitor the army's behaviour: we have our responsibilities;they have their responsibilities; and we refuse to be pushedin to assuming more than what we can really guarantee. Aboutforced labour used by troops assigned to provide security onour pipeline project, let us admit between Unocal and Totalthat we might be in a grey zone.¹

     

Corporations as Moral Agents: Trade-Offs in Criminal Liability and Human Rights for Corporations

This article argues that a common way of defending corporate criminal liability creates a dilemma: it provides a strong justification for giving human rights to corporations. This result follows from approaches to punishment and human rights which predicate each on the status of moral agency. In short, if corporations are moral agents in a sufficient sense to attract criminal liability, they are eligible holders of human rights. The article also discusses the doctrinal application of this philosophical claim. Drawing on US jurisprudence, it illustrates how the European Court of Human Rights might deploy corporate moral agency as a theoretical foundation for its otherwise weakly-reasoned attribution of human rights to corporations. If proponents of corporate criminal liability are dissatisfied with these conclusions, they face difficult policy trade-offs: they must abandon the doctrine, or adopt alternative approaches to punishment or human rights.     

The European Convention and the Relative Rights of Resident Aliens

By virtue of conceptual abstraction, the notion of nationality plays a pivotal role in liberal democracies, governing distinctions in the allocation of 'absolute' and 'relative' rights, and determining that while national citizens, as full member of a sovereign political community, enjoy both human and political/social rights, resident aliens are excluded from the scope of these latter, community-related, rights. Further, The European Convention upon Human Rights appears to countenance this dichotomy, allowing sovereign states to restrict the political activity of aliens. This paper nonetheless argues that such a distinction undermines the democratic imperative upon which liberal constitutional states are founded. A 'social integration thesis,' holding that individuals should enjoy, as a fundamental right, the possibility fully to develop their personalities though establishing and pursuing secure social contacts, as well as interpreting those contacts in the light of prevailing cultural perceptions, not only raises the right of stable residence to one of most fundamental attaching to the human condition, but also indicates that political rights—a mere extension of self‐expression and self-fulfilment within civil society—should be recast as a universal entitlement. Article Three of the First Protocol ECHR may be construed in line with the social integration thesis, and consequently, in the matter of the definition of the members of the national community, the political sovereignty of the Nation State must be limited.     

Human Rights,Linguistics and the Law: The UK and Beyond

This article examines mediarepresentation of cases decided in respect ofthe United Kingdom Human Rights Acts (1998).These representations suggest that only somepeople are deserving of human rights. Further,a distinction between legal human rights andhuman rights is made because of this problem ofaccess. Indeed, before one can be clear abouthow to protect human rights in a legal context,one has to be clear about what human rights areuniversally and uncontroversially.     

An Equality and Human Rights Commission Worthy of the Name

The Human Rights Act 1998 came fully into force on 2 October 2000, enabling the European Convention on Human Rights (ECHR) to be relied on directly in our domestic courts.¹ The Act lacked provision for a Human Rights Commission to advise and assist alleged victims in bringing proceedings for breaches of Convention rights, to research, intervene in court proceedings, and promote a culture of human rights, although such a Commission had been created for Northern Ireland. A White Paper has now been issued outlining plans for a Commission for Equality and Human Rights. This paper considers the future role and potential impact of the Commission and highlights opportunities that have been missed since October 2000 in its absence. We focus on its human rights aspects and summarize key conditions for the new Commission's success.     

Regulating surrogacy--a contravention of human rights?

On the 2nd of October 2000, The Human Rights Act 1998 came into full force, signalling the incorporation of The European Convention on Human Rights into U.K. law. Areas of law believed to be inconsistent with the Convention may now be challenged in both The European Court of Human Rights and domestic courts. This article considers whether existing laws on the regulation of access to infertility services, in particular surrogacy, will be deemed incompatible with the ECHR. Human rights as enshrined within Articles 8 and 12 will be examined in light of recent suggestions that there may arise legal challenges by those who have had access to reproductive services restricted or denied. It will be shown that, although existing and potential future controls may arguably infringe these rights, it is nevertheless unlikely that they will be held to be in contravention of The Human Rights Act 1998.     

Incompatibility of the Digital Economy Act 2010 subscriber appeal process provisions with Article 6 of the ECHR

Through case-law research, this paper critically assesses the compatibility of the Digital Economy Act 2010 (DEA) subscriber appeal process provisions (Section 13 of the DEA) with Article 6 of the European Convention on Human Rights (ECHR). Drawing on the European Court of Human Rights (ECtHR) case-law, Ofcom's Initial Obligations Code (the Code), and the DEA judicial review decision, namely, BT PLC and Talk Talk PLC v Secretary of State for Business Innovation and Skills and others, this paper focuses on the three Strasbourg Court principles of equality of arms, admissibility of evidence, and presumption of innocence, in an effort to determine whether Section 13 of the DEA infringes them, and whether this constitutes a breach of a subscriber's right to a fair trial under Article 6 of the ECHR. The paper examines these three ECtHR principles. It contrasts such principles with the Code's provisions, and considers the compatibility of Section 13 of the DEA with Article 6 of the ECHR. It concludes that the DEA subscriber appeal process provisions do indeed infringe these principles, thus constituting a violation of subscribers' right to a fair trial. It also recommends that the UK government start taking seriously human rights in general, and Article 6 of the ECHR in particular.     

The Reasonable Expectation of Privacy and the Criminal Suspect

In In re JR38, the Supreme Court unanimously dismissed an appeal from a 14 year‐old boy who argued that the dissemination of his image, taken whilst he was participating in sectarian rioting, to local newspapers, violated his rights under Article 8 of the European Convention on Human Rights (ECHR). However, the Court was divided on whether or not the measures taken by the police engaged the applicant's Article 8(1) rights at all. This case raises fundamental questions as to the scope of private life in the context of criminal investigations, and the place of the European Court of Human Rights’ ‘reasonable expectation of privacy’ test in determining whether Article 8(1) of the ECHR is engaged. This case comment subjects the majority's interpretation of Article 8(1) to critical scrutiny, concluding that this interpretation may unduly restrict the scope of Article 8 protection for those subject to criminal investigations.     

Government(ality) by Experts: Human Rights as Governance

The suggestion that the general economy of power in our societies is becoming a domain of security was made by Michel Foucault in the late 1970s. This paper takes inspiration from Foucault’s work to interpret human rights as technologies of governmentality, which make possible the safe and secure society. I examine, by way of illustration, the site of the European Union and its use of new modes of governance to regulate rights discourse—in particular via the emergence of a new Fundamental Rights Agency. ‘Governance’ in the EU is constructed in an apolitical way, as a departure from traditional legal and juridical methods of governing. I argue, however, that the features of governance represent technologies of government(ality), a new form of both being governed through rights and of governing rights. The governance feature that this article is most interested in is experts. The article aims to show, first and foremost, how rights operate as technologies of governmentality via a new relation to expertise. Second, it considers the significant implications that this reading of rights has for rights as a regulatory and normalising discourse. Finally, it highlights how the overlap between rights and governance discourses can be problematic because (as the EU model illustrates) governance conceals the power relations of governmentality, allowing, for instance, the unproblematic representation of the EU as an international human rights actor.     

“一带一路”倡议与中国企业承担人权责任策略探析

在经济全球化浪潮面临挑战和"一带一路"倡议方兴未艾的复杂国际背景下,中国企业面临发展机遇与人权相关风险的双重挑战。国际工商业与人权议程尤其是联合国《工商企业与人权:实施联合国"保护、尊重和补救"框架指导原则》蕴含着丰富的企业人权责任。我国可从政府与企业两个层面采取应对措施。在政府层面,可以制定并执行相关法律与政策;制定工作指引,建立监管体系;制定工商业与人权行动计划。在企业层面,应当把尊重人权原则纳入公司治理;主动发布人权履责报告,加强对话与合作。     

The Concluding Observations of United Nations Human Rights Treaty Bodies

The seven principal United Nations-sponsored human rights treatiesstipulate that States Parties submit periodic reports to therespective treaty monitoring bodies (or ‘committees’)¹on the implementation of their treaty obligations. Followingthe review of a report, the treaty body in question issues aset of ‘concluding observations’, containing itscollective assessment of the State's record and recommendationsfor enhanced implementation of the rights in question. Arguably,the issuance of concluding observations is the single most importantactivity of human rights treaty bodies. It provides an opportunityfor the delivery of an authoritative overview of the state ofhuman rights in a country and for the delivery of forms of advicewhich can stimulate systemic improvements. Its significanceis all the greater now that the only accounts of the reviewof periodic reports which appear in the annual reports of thetreaty bodies are the adopted concluding observations.² Thisarticle seeks to test key aspects of the quality of concludingobservations. The analysis is set within the framework of reviewof the development of the practice.     

‘Notice and staydown’ and social media: amending Article 13 of the Proposed Directive on Copyright

ABSTRACT

This paper critically assesses the compatibility of content recognition and filtering technology or so-called notice and staydown approach with the right of social network platforms and users to a fair trial, privacy and freedom of expression under Articles 6, 8 and 10 of the European Convention on Human Rights (1950) (ECHR). The analysis draws on Article 13 of the European Commission’s proposal for a Directive on Copyright, the case-law of the Strasbourg and Luxembourg Court and academic literature. It argues that the adoption of content recognition and filtering technology could pose a threat to social network platforms and user human rights. It considers the compliance of ‘notice and staydown’ with the European Court of Human Rights’ (ECtHR) three-part, non-cumulative test, to determine whether a ‘notice and staydown’ approach is, firstly, ‘in accordance with the law’, secondly, pursues one or more legitimate aims included in Article 8(2) and 10(2) ECHR and thirdly, is ‘necessary’ and ‘proportionate’. It concludes that ‘notice and staydown’ could infringe part one and part three of the ECtHR test as well as the ECtHR principle of equality of arms, thereby violating the rights of social network platforms and users under Articles 6, 8 and 10 of the Convention.