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.     

Britain and European Human Rights Law: An Author’s Apology

Netherlands International Law Review - In four books published between 1990 and 2008, I, along with my two co-authors, was very optimistic about the up-ward trajectory of European human rights law,...     

The University of Barchester,Coketown University,Ipswich Cathedral Choir School,Gas Street Comprehensive School and the European Convention on Human Rights: A link?

This article focuses on the European Convention on Human Rights (ECHR) and especially Article 6 entitled Right to a Fair and Public Hearing , all now fully incorporated into the UK via the Human Rights Act (HRA, 1997). This article discusses the implications for UK education institutions and the potential conflict with the exclusive jurisdiction of the Visitor in English chartered universities and colleges. Also discussed are UK schools, colleges and universities as 'public authorities' and 'emanations of the state', the creation of a Higher Education Ombudsman as a 'Super-Visitor' or 'HERO' (Higher Education Regulatory Office), the impact of HRA and ECHR less dramatic for schools than for universities (or at least for the Visitor function within them), and finally the coming three decades of legal uncertainty and fees for lawyers.     

Consensus,Difference and Sexuality: Que(e)rying the European Court of Human Rights’ Concept of‘ European Consensus’

Law and Critique - This paper provides a queer critique of the European Court of Human Rights’ use of ‘European consensus’ as a method of interpretation in cases concerning...     

Hadar Aviram: Yesterday’s Monsters: The Manson Family Cases and the Illusion of Parole

Critical Criminology -     

The Influence of Parole Officers’ Attitudes on Supervision Practices

The supervision of offenders conditionally released into communities is one of the primary functions of parole officers. Scholars have hypothesized that officers’ attitudes towards supervision may influence their job performance. Yet there are few studies which have examined the influence of parole officers’ attitudes on their actual supervision practices, and studies of the attitude–behavior relationship among other justice system actors have revealed mixed findings. This study involved an examination of the relationship between officers’ attitudes towards supervision and their supervisory responses to offender behavior. Findings revealed that officers’ attitudes influence their intended behaviors. However, results of the analyses of the potential relationship between officers’ attitudes and their actual behaviors were mixed. Officers’ attitudes had no effect on their rate of issuing community-based sanctions, but officers who held more authoritative attitudes were more likely to pursue revocation hearings for offender noncompliance.     

The Cat and Dog Fur Regulation: A Case Study on the European Union’s Approach to Animal Welfare

The Cat and Dog Fur Regulation, which bans the importation and exportation of real cat and dog fur, has been in force since 2008. The Regulation was a welcome development, however, a recent investigation carried out by the Humane Society International/UK and Sky News uncovered the sale of items of clothing containing real cat fur on the British high-street. This discovery, coupled with a recent report by the European Commission on the application of the Cat and Dog Fur Regulation, has undermined the efficacy of the Regulation. It raises questions as to the enforcement of the Regulation, and indeed the enforcement of EU animal welfare protection and legislation in general. The Cat and Dog Fur Regulation is but one piece of legislation, however, using this Regulation on a micro-level, helps understand the EU’s approach on a macro-level. The Cat and Dog Fur Regulation typifies the supineness of the EU when it comes to dealing with ethical issues. The European Commission needs to ensure that Member States are fulfilling their obligations under the Regulation and EU animal welfare provisions in general, by adopting a more forceful approach, which may necessitate it taking infringement proceedings under Article 258 TFEU. There is a need for Member States to carry out DNA testing for real cat and dog fur on goods purchased online, especially those coming from outside the EU. There is a dearth of academic commentary on the Cat and Dog Fur Regulation. The lack of discussion undermines the importance of this piece of legislation. Brexit also has implications for EU animal welfare. UK had already banned fur farming before the Regulation, thus the ban on the importation and exportation of fur should remain under domestic law.     

A Tarasoff for Europe? A European Human Rights perspective on the duty to protect

It has long been recognised by British courts that a psychiatrist can be permitted to depart from his/her duty of confidentiality, in order to issue a warning where a patient is deemed to present a real and serious threat to other parties. Until recently, however, it seemed that s/he would not be bound to give such a warning, or to take other steps to protect third parties. The approach adopted throughout much of the USA, and famously expounded in the Tarasoff judgment, appeared to have no relevance to British law. This article considers the possibility that the European Court of Human Rights' ruling in Osman v UK may be set to bring about a radical change in this respect, introducing something akin to the Tarasoff approach into the UK, and indeed throughout Europe. As well as the possible legal basis for such a duty, and the circumstances in which it would arise, it will consider how a psychiatrist might reconcile any such duty with other, more established, legal and ethical duties.     

Japan’s Ivory Trade in the Face of the Endangered Species Convention

Abstract

Commercial trade in ivory remains one of the major threats to the survival of an iconic wildlife resource: the elephant, in particular the African species (Loxodonta africana). At its 2016 Johannesburg meeting, the Conference of the Parties to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) adopted by consensus an urgent call for the closure of domestic markets for ivory. The only Party which has openly defied that call is Japan – claiming that its own domestic ivory market is strictly controlled, and does not contribute to elephant poaching elsewhere. The present study analyzes that claim in light of the evidence, including the country's legislation (as recently amended) and its application in practice (as documented by multiple recent surveys). The author's findings do not support Japan's claim to a sweeping exemption from the global ban agreed by the CITES Conference. On the contrary, in view of serious shortcomings in the Government's current legislative and administrative controls over the ivory trade (especially with regard to internet transactions), the author recommends effective termination of Japan's domestic ivory market; and pending such closure, a reclassification of Japan in category 2 of the CITES legislation list (‘legislation believed not to meet all the requirements for CITES implementation’).     

“Error But Without Malice” in Defamation of Public Officials: The Value of Free Expression in International Human Rights Law

Government officials in various parts of the world use defamation to silence critics, but defamation liability may curtail freedom of expression on topics of public interest and undermine human rights generally. Article 19 of the International Covenant on Civil and Political Rights guarantees freedom of expression unless a state can show need to protect individual reputation and acts proportionally. In its adjudication of complaints for violations of Article 19, and in its General Comment 34, the United Nations Human Rights Committee has crafted the principle that defamation liability may not be imposed if an erroneous statement about a public official was made in “error but without malice.” Although soft law, General Comment 34 represents the committee's most compelling articulation of the values animating freedom of expression in international human rights law, and chief among the values is the role played by free expression to promote realization of all human rights.     

A Survey: Children’s Rights Post Termination of Parental Rights and Pre-Adoption

This survey of the statutory provisions and case law of all 50 states and the District of Columbia includes the rights of children to parental support, inheritance, and familial association remaining upon termination of parental rights. A majority of states terminate all the child’s rights at the time parental rights are severed. However, a number of states by explicit statutes or statutory construction have determined that a child’s rights to parental support survives termination of parental rights. This survey examines the prevailing law in each state and suggests statutory reforms to protect the legal status and rights of children.     

Positive obligations under the African Charter on Human and Peoples’ Rights: the duty of the Nigerian Government to enact a Freedom of Information Act

Beginning with the Independence Constitution of 1960, the right to freedom of information and other civil and political rights have been guaranteed by successive Nigerian Constitutions as fundamental human rights. The African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, which incorporated the provisions of the African Charter on Human and People’s Right into Nigerian law in 1983 consolidated these and a plethora of other social, economic and cultural rights and imposed a positive duty on the government to adopt legislative and other measures to give them effect. This article develops this potentially revolutionary principle of positive obligations, which amazingly remains unsung and unused more than a quarter of a century after it became an integral part of Nigerian law. The first part of the article proposes the principle as the most effective basis to compel the enactment of a Freedom of Information legislation, which successive governments have refused to enact despite overwhelming public support and sustained lobbying for a Freedom of Information Bill first introduced in the National Assembly in 1997. The second part critically analyses the latest (2007) version of the Bill. It concludes that its provisions are inadequate to give effect to the right to freedom of information in view of the legal and bureaucratic environment under which it will operate, and suggests remedial measures.