The European Convention on Human Rights and General International Law

✍ Scribed by Anne van Aaken (editor), Iulia Motoc (editor)

• Publisher: Oxford University Press
• Year: 2018
• Tongue: English
• Leaves: 353
• Series: European Society of International Law
• Category: Library

✦ Synopsis

The European Court of Human Rights is one of the main players in interpreting international human rights law where issues of general international law arise. While developing its own jurisprudence for the protection of human rights in the European context, it remains embedded in the developments of general international law. However, because the Court does not always follow general international law closely and develops its own doctrines, which are, in turn, influential for national courts as well as other international courts and tribunals, a feedback loop of influence occurs.

This book explores the interaction, including the problems arising in the context of human rights, between the European Convention on Human Rights and general international law. It contributes to ongoing debates on the fragmentation and convergence of international law from the perspective of international judges as well as academics. Some of the chapters suggest reconciling methods and convergence while others stress the danger of fragmentation. The focus is on specific topics which have posed special problems, namely sources, interpretation, jurisdiction, state responsibility and immunity.

✦ Table of Contents

Cover
Series
The European Convention on Human Rights and General International Law
Copyright
Contents
Table of Cases
Table of Legislation
List of Contributors
Introduction: The European Convention on Human Rights and General International Law
1. Introduction
2. Fragmentation and Conciliation: A Two-​Way Street
3. Typologies—​Confirmation of and Emancipation from General International Law
4. Conclusion: The ECHR and General International Law—​Osmosis and Concentric Circles
Part I Sources
1. European Consensus and International Law
1. Introduction—​Setting the Stage
2. The Convention, Relevant Rules of International Law, and Subsequent Practice
3. Two Main Scenarios Relevant for Discussion on European Consensus and Custom
4. Concluding Remarks
2. Hard Law or Soft law—​Does it Matter?: Distinction Between Different Sources of International Law in the Jurisprudence of the ECtHR
1. Introduction
2. Difference Between Hard Law and Soft Law
3. Approach of the ECtHR
4. Conclusion
Part II. Interpretation
3. The Effect of Subsequent Practice on the European Convention on Human Rights: Considerations from a General International Law Perspective
1. Introduction
2. State Practice and Treaty Interpretation
3. State Practice and Treaty Modification
4. Scaling Subsequent Practice
5. Conclusion: Subsequent Practice as Catalyst
4. Evolutive Interpretation in the Light of Other International Instruments: Law and Legitimacy
1. Introduction
2. The Practice of the Court
3. Evaluation of the Court’s Practice
4. Conclusions
Part III. Jurisdiction
5. Jurisdiction and Responsibility: Trends in the Jurisprudence of the Strasbourg Court
1. Introduction
2. Article 1 Jurisdiction: Two Basic Models of Extraterritorial Application
3. A More Factual and Expansive Approach to Extraterritoriality
4. The Relationship Between Article 1 Jurisdiction and State Responsibility
5. The Convention in Armed Conflict
6. Conclusion and Outlook
6. Extraterritorial Application of the European Convention on Human Rights: Evolution of the Court’s Jurisprudence on the Notions of Extraterritorial Jurisdiction and State Responsibility
1. Introduction
2. Extraterritorial Acts that Constitute an Exercise of Jurisdiction under Article 1
3. Concluding Remarks
7. Territorial Jurisdiction and Positive Obligations of an Occupied State: Some Reflections on Evolving Issues under Article 1 of the Convention
1. Introduction
2. What Can Be Expected from an Injured State—​The International Law Position
3. The Establishment of Human Rights Obligations of an Injured State—​Ilaşcu v Moldova and Russia
4. Further Clarification of the Scope of an Injured State’s Obligations—​A Failed Attempt?
5. Towards Concretizing the Human Rights Obligations of Injured States
6. Conclusion
Part IV. Responsibility
8. Concurrent Responsibilities under the European Convention on Human Rights: The Concurrence of Human Rights Jurisdictions, Duties, and Responsibilities
1. Introduction
2. Human Rights Jurisdiction in a Nutshell
3. Concurrent Jurisdictions
4. Concurrent Duties
5. Concurrent Responsibilities
6. Conclusions
9. The Structure of State Responsibility under the European Convention on Human Rights
1. Introduction
2. Attribution
3. State Responsibility for Acts of International Organizations (IOs)
4. Third-​State Responsibility
5. Jurisdiction
6. Conclusion
10. The ECHR and Responsibility of the State: Moving Towards Judicial Integration—​A View from the Bench
1. Introduction
2. The Catan Case—​Lex Specialis Principle
3. Aligning the ECHR with General International Law—​ The Jaloud Case
4. Parallels between the ICJ and ILC—​Moving Towards the Notion of ‘Effective Control’ in the Chiragov Case
5. Conclusion: Fragmentation, Constitutionalization, and Judicial Integration of International Law
11. The UN Security Council, State Responsibility, and the European Court of Human Rights: Towards an Integrated Approach?
1. Introduction
2. Execution of Resolutions Involving Use of Force
3. Execution of Resolutions Imposing Economic Sanctions
4. Concluding Remarks
12. Punitive Damages in Strasbourg
1. Introduction
2. Establishing Punitive Damages in the ECtHR
3. Punitive Damages in International and European Law
4. A Social-​Science Rationale for Using Punitive Damages
5. Conclusion and Outlook
Part V. Immunity
13. A Moving Target: The Approach of the Strasbourg Court to Immunity
1. Introduction
2. Approaches of ECtHR to Identifying General International Law
3. A ‘European Approach’ to Employment Cases
4. The Evolution of the Law on Immunity at the ECtHR
14. The Myth of the Customary Nature of the United Nations Convention on State Immunity: Does the End Justify the Means?
1. Introduction
2. Outsourcing the Identification of Customary Law on State Immunity to the International Law Commission: The Cudak Jurisprudence
3. Dismissing the Customary Status of the Employment Exception under the UNCSI
4. Does the End Justify the Means? Insights from the English and Italian Jurisprudence
5. Conclusion
Conclusion: Reflections on the 2015 Strasbourg Conference
1. Introduction
2. Observations on the Topics Addressed
3. Treaty Hermeneutics in Public International Law and in the International Law of Human Rights: The Common Ground
4. Distinct Conceptions of the Exercise of the International Judicial Function
5. The Unity of the Law
6. A Regional System within the Framework of the Universality of Human Rights
7. Final Observations
Index