Coming to Terms with the Supranational: Translating for the European Court of Human Rights

Translators at the European Court of Human Rights, as at other international courts, have to deal with two different types of legal terminology in judgments and decisions: on the one hand, terms that would be used by a national practitioner in the relevant language, and on the other, the supranational language that has evolved in general international law or that is specific to the Court itself, being enshrined in its basic texts or case-law. The choice of translation will often be imposed by the source text, which may be a constraint; extensive knowledge of the Court’s autonomous terms and other “linguistic precedent” is vital if they are to be used accurately and consistently. The task of devising and using supranational terms to encompass domestic realities in as many as 47 States is not only that of the drafter; the linguist also has a crucial role to play in conveying the Court’s message in a culture-neutral manner.     

The Logics of Supranational Human Rights Litigation,Official Acknowledgment,and Human Rights Reform: The Southeast Turkey Cases before the European Court of Human Rights, 1996–2006

This article examines the domestic impact of supranational human rights litigation on acknowledgment of state violence in the context of macroprocesses of global governance. The article's argument is that the impact of supranational human rights litigation on the process of acknowledgment must be seen through counternarratives on state violence. The article undertakes a detailed textual analysis of the truth claims and denial strategies that emerged from the European Court of Human Rights proceedings on state violence during Turkey's struggle against the armed group the Kurdistan Workers Party (PKK). It assesses these in the context of the human rights reforms that were created following pressure from European-level governance processes. The article argues that attention must be paid to agency in acknowledgment and truth-telling processes, and points to the limits of technical-bureaucratic forms of human rights reform interventions in the context of state violence.     

Heteronormativity and the European Court of Human Rights

This article examines a recent judgment by the European Court of Human Rights (E.B. v France) that upheld the complaint of a homosexual woman who alleged that her application for authorization to adopt a child had been refused by domestic French authorities on the grounds of her sexual orientation. I argue that the judgment constitutes an innovative and atypical legal consideration of, and challenge to, the heteronormative social relations of contemporary European societies. After exploring the evidence presented by the applicant, and the Court’s interpretation of it, I argue that in order to reach its judgment it was necessary for the Court to make a significant departure from its established jurisprudence in relation to sexual orientation. An essential element of this involved the adoption of a distinctive critical approach, strongly resonant with aspects of ‘queer theory’, which focused attention on the social, cultural and political construction of normative heterosexuality. Whilst a number of commentators have assessed the importance of the judgment in terms of its evolution of ‘gay rights’ in the area of family life, I argue that the Court’s reconceptualized ‘theoretical’ understanding of, and critical approach to, heteronormativity offers the potential to expand the scope of the European Convention on Human Rights across a number of areas of social life—in marriage, public assembly, freedom of expression, as well as family life—where non-heterosexuals continue to face discrimination in contemporary Europe.     

Mentally disordered offenders and the European Court of Human Rights

Mentally disordered offenders find themselves at the intersection of the healthcare system and the criminal justice system in most European countries. Decisions on their care often involve lengthy discussions in relation to care versus control in society. In this article, the focus is on one aspect of this debate — that of human rights. An analysis of cases, taken to the European Court of Human Rights by mentally disordered offenders, demonstrates the difficulties inherent in ensuring appropriate care to individuals and safeguards to the public at the same time. The issues raised include the problems raised by indeterminate sentences, the use of detention for preventive purposes, and debates about treatment.The countries represented in this selection of cases are Belgium, Norway, Poland, the Netherlands, Russia and the United Kingdom.     

Separate opinions in the European Court of Human Rights

Separate opinions, both concurring and dissenting, have beena feature of judgments of the European Court of Human Rightssince its earliest days, but detailed studies of their incidenceand impact have until recently been sparse. This article, basedon an AHRC-funded research study, offers a survey of the researchliterature and describes the outcome of its own considerationof such opinions. The use of separate opinions in the EuropeanCourt of Human Rights is significant, but the incidence of soledissents by national judges is very low. It would appear thatthe main determining factor in the writing of a separate opinionis judicial temperament. There is some evidence that the backgroundof judges prior to their election to the Court has some influenceon their approach to writing separate opinions. The Court, however,demonstrates high levels of collegiality and the use of separateopinions contributes to the transparency of its decision-making.     

The Creativity of the European Court of Human Rights

This article discusses the creative role adopted by the EuropeanCourt of Human Rights in the face of situations not envisagedby the drafters of the European Convention in the late 1940s,resulting from the inevitable evolution of societies and theirchanging ethical standards. Although the Vienna Convention onthe Law of Treaties 1969 is a constant source of inspirationto the Court for the interpretation of the Convention, the articlepoints to two new techniques of interpretation adopted by theCourt, namely the ‘living instrument’ doctrine andthe ‘practical and effective’ doctrine. An attemptis made to highlight the advantages and the weaknesses of bothof these innovative interpretational approaches. Additionally,an assessment is made of how the Court has responded to present-daydemands and maintained a balance between judicial creativityand respect for the role of member States as the key policy-makersin determining the scope of rights guaranteed by the Convention.     

Constitutions,Constitutionalism, and the European Union

The institutional reforms of the EU, coupled with the EU Charter of Fundamental Rights, have fuelled the debate about a European Constitution. This paper begins by examining the nature of constitutions and constitutionalism. The focus then turns to the EU itself. It is argued that the Community has indeed been transformed into a constitutional legal order, and that the arguments to the contrary are not convincing. This does not however mean that the EU has, or should have, a European Constitution cognisable as such which draws together the constitutional articles of the Treaties, together with the constitutional principles articulated by the European Court of Justice. The difficulties with this strategy are examined in detail, and the conclusion is that we should not at present pursue this course. It would be better to draw on the valuable work done by the European University Institute in its recent study in order to simplify and consolidate the Treaties.     

Constitutional Comparisons by A Supranational Court in Flux: The Privy Council and Caribbean Bills of Rights

This article examines how the Judicial Committee of the Privy Council makes constitutional comparisons between ‘related’ constitutions that are or were within its jurisdiction, deploying its own precedents, as a pragmatic method of resolving idiosyncratic questions that arise across multiple constitutions. In particular, it considers the Committee's approach to the longstanding question of the interpretation of the opening section of Caribbean constitutional bills of rights, which has far reaching implications for the scope of constitutional protection of human rights. The JCPC's answer over time to this question reveals the fault lines for this supranational constitutional court as its jurisdiction peters out yet remains. The gaze of comparativism is very harsh as older constitutions are evaluated in light of newer ones and also as fossilised constitutional interpretations presented in earlier JCPC cases where the Committee no longer has jurisdiction are given new life in contemporary cases.     

The European Court of Human Rights,Amicus Curiae,and Violence against Women

Are international courts and advocacy group legal mobilization shaping human rights politics? This question poses a theoretical and empirical challenge to state dominated understandings of international litigation. This article theorizes the interaction between advocacy groups and the European Court of Human Rights and the role this participation plays in the enforcement and development of human rights. The analyses examine institutional factors shaping broad trends in mobilization complemented by two in depth studies examining a single mode of participation, amicus curiae and a single area of law, violence against women. The data identify the critical role standing rules, court review powers and group expertise play in transnational rights mobilization and development. The findings bring into question dominant understandings of international law and contribute to a more complex understanding of law in a global age where international courts and societal actors are shaping the direction of rights protection.     

Supranational Fundamental Rights or Primacy of Sovereignty?

This analysis explores in detail various aspects of the possible legal impact of ‘British’ Protocol No 30 (the so‐called opt‐out from the EU Charter of Fundamental Rights). On the basis of a legal appraisal, it concludes that the Protocol is not in any way to be understood as a substantial derogation from the standard of protection of fundamental rights in the EU or as an ‘opt‐out’ from the Charter in a substantial sense. Nevertheless, its significance is definitely not to be underestimated. Its adoption as a source of primary law enshrines a legally binding interpretation of the Charter and, in particular, an interpretation of its horizontal provisions. In Article 1(2) and Article 2, the Protocol in fact confirms that the application of the Charter cannot lead to a change in the existing competencies framework. These provisions are of a declaratory nature and apply to all Member States. In Article 1(1), the Protocol is of a constitutive nature since it rules out an extensive interpretation of what can be considered national legal acts adopted in the implementation of EU law only for those States signed up to the Protocol. This specifically means that if, in the future, as part of the application of the Charter, the Court of Justice of the EU (ECJ) has a tendency to subsume a certain area of national legislation under the ‘implementation of Union law’ outside the field of implementing standards, in the spirit of the Ellinki Radiophonia Tileorassi judgment (and subsequently allow their reviewability with respect to their conformity with the Charter), such action would be admissible only for those Member States that have not acceded to the Protocol. However, the Protocol cannot exclude the continued application of the general principles of law instead of the positively constituted fundamental rights in the Charter by the ECJ.     

Political Constitutionalism and the European Union

What kind of constitution is emerging in Europe? There are two approaches to answering this question. The first, a ‘foundational’ approach, rejects the premise: there can be no real constitution in the absence of a ‘demos’, a foundation which exists only nationally. The second, ‘freestanding’ approach, depicts it as paradigmatic of a broader phenomenon of cosmopolitan constitutionalism, based on individual rights guaranteed through a transnational rule of law. Rejecting both for their failure to account for European constitutionalism as a historical process of polity‐building, a third approach, ‘political constitutionalism’, is proposed, capturing the dynamic quality of constitutionalisation in the EU. From this perspective, what is emerging in Europe is a constitution that reflects a common good (predominantly conceived in economic terms), albeit one which is legally, political and socially contested. It is by capturing this complex picture of the political formation of Europe that the constitutional question will be most fruitfully pursued.     

Interview with Judge Luzius Wildhaber,President of the New European Court of Human Rights

On Tuesday, November 3, in Strasbourg, the new, full-time European Court of Human Rights will be inaugurated. Judges will be sworn in, including the new president of the court, Mr. Luzius Wildhaber of Switzerland.     

European Constitutionalism and the Modern Social Imaginary

This article seeks to shed light on some of the problematic assumptions underpinning the contemporary debate over the constitutional identity of the European Union. The central claim put forward here is that the development of the European Union’s constitution is significantly constrained by what Charles Taylor has described as the modern social imaginary. The constraint operates at two levels. First, modern understandings of constitutionalism typically ignore or underemphasize its dynamic and historical characteristics and its relationship with the self-understanding of political subjects. Thus, modern constitutionalism fails to acknowledge the importance of historically conditioned assumptions involved in the formation of the identities of political subjects. In short, it fails to understand constitutionalism as a ‘regime’. Second, modern constitutionalism’s blind-spots result in a relatively unreflective adherence to a particular type of constitutional regime: the modern economy and its associated ‘consumerist’ form of political citizenship.     

The Bosphorus Ruling of the European Court of Human Rights: Fundamental Rights and Blurred Boundaries in Europe

The recent case of Bosphorus Airlines v Ireland provided theEuropean Court of Human Rights (ECtHR) with an opportunity torefine further its relationship with the EU. In particular,the ECtHR was called upon to clarify when States could be heldresponsible for actions taken under the banner of the EU. Thisarticle examines the status quo prior to the Bosphorus judgment,and then scrutinises the judgment itself, focusing particularlyon the use and scope of the doctrine of ‘equivalent protection’to determine State responsibility. The doctrine as outlinedin Bosphorus is applied to some likely scenarios involving EUaction and its relative merits and disadvantages are discussed.The article also briefly addresses the further global implicationsof the judgment, namely for the legal accountability of theUN Security Council and the ongoing issue of responsibilityof international organisations under international law.