Digital Commons Network^™

European Judicial Interpretation Of The Right To Freedom Of Belief, Ahmed Mohamed Ali Hussein

The World Research of Political Science Journal

Article 9 of the European Convention on Human Rights (ECHR) guarantees freedom of belief and its expression. However, the wording of that article was stated in a general manner and did not include detailed provisions explaining the right under study, but rather provided broad frameworks of the right. Therefore, the European Court of Human Rights, as the judicial body entrusted with monitoring the implementation of the right, guaranteed freedom of belief and its expression. The provisions of the Convention clarify all the elements of the right to freedom of belief, the practices it includes, and the restrictions imposed on it, …

The "Anti-Deference" Device: Article 18 Of The European Convention On Human Rights, Jeffrey D. Kahn

Faculty Journal Articles and Book Chapters

This article makes two principal arguments. First, the limitation on restricting rights that is established by Article 18 of the European Convention on Human Rights is the mirror image of the margin of appreciation doctrine created by the European Court of Human Rights. As such, exploring the metes and bounds of Article 18 aids our understanding of that judicially created doctrine. Parts II and III explore this connection and the origins of this limitation on Member States.

The second argument is a practical application of the first one. Russian accession to the Convention and membership in the Council of Europe …

Penises, Nipples, And Bums, Oh My!: An Examination Of How Freedom Of Expression Applies To Public Nudity, Clara Gutwein

Indiana Journal of Global Legal Studies

How do you solve a problem like the nipple? A woman's nipples are both erotic and utilitarian, obscene and maternal. She must never show them in public. She must show them to feed her child. Nipples are for men. Nipples are for babies. Nipples, it seems, are for everyone except a woman herself. The law, too, has something to say about nipples. It is completely constitutional for the government to prevent women from publicly showing their nipples in order to protect morality and public order. Thus, the law assumes an inversely proportional relationship between the number of publicly exposed nipples …

Does The Right To Privacy Apply To Facial Biometrics? Specifically, When Analyzed Under The European Convention On Human Rights, Grace Callanan

Georgia Journal of International & Comparative Law

No abstract provided.

Debunking The Deathbed Analysis: Exploring A New Approach To Article 3 Health Cases, Meredith Heim

Northwestern Journal of Human Rights

This essay will explore Article 3 of the European Convention on Human Rights (ECHR) as it has been applied to deportation cases of persons in poor health, with the ultimate goal of answering the following question: Whether the deportation of a person to a place where she or he will not receive adequate health care should constitute a violation of ECHR Article 3. Further, this article will suggest how the European Court of Human Rights (ECtHR) and the national courts below them can better review such cases in order to provide more meaningful protection to those inflicted. In doing so, …

A Right To A Pollution-Free Environment Through The Right To Life, Natalie S. Mousa

Honors Undergraduate Theses

Since humans have existed on Earth, the environment has been one of the primary resources contributing to humans' ability to live life adequately. Pollution has not only destroyed natural life, but it has also diminished humans' right to life. The United Nations 1966 International Covenant on Civil and Political Rights (ICCPR) guarantees "every human being has the inherent right to life," but how can one exercise this right in an environment that is degrading through pollution? This is the basis of which this thesis is surrounded; the issue of environmental pollution hindering humans' right to life. Thus, this thesis …

The Effectiveness And Application Of The Eu Principle Of Consistent Interpretation In Hungarian Courts, Fabio Ratto Trabucco

Indiana Journal of Global Legal Studies

This study of how the Hungarian courts have applied the principle of consistent interpretation demonstrates the striking degree to which this statutory interpretation method has been derived from EU law and embedded in the national courts' practice. Originating in the jurisprudence of the EU Court of Justice and based on the principle of sincere cooperation set out in Article 4(3) EU Treaty, the principle of consistent interpretation consists of a duty incumbent on all public authorities, including national courts, to interpret national law in conformity with EU law. Consistent interpretation plays an important role in enabling individuals to secure rights …

From Justice To Injustice: Lowering The Threshold Of European Consensus In Oliari And Others Versus Italy, Nazim Ziyadov

Indiana Journal of Global Legal Studies

Oliari and Others v. Italy, decided by the European Court of Human Rights (ECHR) in 2015, changed its case law. The ECHR changed its position stated in Schalk and Kopf v. Austria (2010) when evaluating an alleged violation of Article 8 of the European Convention on Human Rights. It concluded that Italy has a positive obligation under the convention to guarantee alternative legal recognition for same-sex couples. The same conclusion was not reached in Schalk. In Oliari and Others, the ECHR heavily relied on the European consensus doctrine and eventually deepened formalization of two different institutions (marriage and civil unions). …

Human Rights In Times Of Crisis: Article 3 Prevails-Examining How Lgbtq Asylum Seekers In The European Union Are Denied Equal Protection Of Law, Michael A. Witschel

American University International Law Review

No abstract provided.

The Concept Of Democracy And The European Convention On Human Rights, Joseph Zand

University of Baltimore Journal of International Law

The European Convention on Human Rights, for the most part, guarantees civil and political rights. It is a unique international instrument that provides what is widely regarded as the most effective trans-national judicial process for complaints brought by citizens and organizations against their respective governments.The aim of this article is to contribute to the continuing debate on the notion of democracy according to the European Convention on Human Rights. Not only has the Convention been a standard-setter in Europe, but it is also a source of inspiration in promotion of democracy and democratic values for other regions of the world. …

Marriage Matters In December, Arthur S. Leonard

Other Publications

No abstract provided.

New Judicial Review In Old Europe, Alyssa S. King

Georgia Journal of International & Comparative Law

No abstract provided.

Uncitral And The Enforceability Of Imsas: The Debate Heats Up, Nadja Alexander, Anna Luisa Howard, Dorcas Quek Anderson

Research Collection Yong Pung How School Of Law

This is a first of four in a series of blog posts on Kluwer Mediation Blog. They were published in conjunction with the the 65th session of the UNCITRAL Working Group II on arbitration and conciliation. The Working Group has turned its attention to the settlement of commercial disputes and in particular on the preparation of an instrument on the enforcement of international commercial settlement agreements resulting from conciliation. (Note that in UNCITRAL speak, the term ‘conciliation’ is used interchangeably with ‘mediation’. ) In terms of the type of instrument, the Working Group is considering the possibility of a convention, …

Celebrity Newsgathering And Privacy: The Transformation Of Breach Of Confidence In English Law, John D. Mccamus

John D. McCamus

In recent years, a series of leading cases have returned to consider these questions. The implications of these decisions for the current shape of English law relating to civil redress for privacy invasion are the subject of this article. Surprisingly, perhaps, English courts have remained steadfast in their refusal to recognize invasion of privacy as a tort and in doing so have quite explicitly declined to rely on American experience in this area. Rather, English courts have preferred to resist innovation of this kind and leave the difficult question of privacy law reform to Parliament. On a number of recent …

A House Divided: The Human Rights Burden Of Britain's Family Migration Financial Requirements, Courtney L. Broussard

Georgia Journal of International & Comparative Law

No abstract provided.

Declarations Of Unconstitutionality In India And The U.K.: Comparing The Space For Political Response, Chintan Chandrachud

Georgia Journal of International & Comparative Law

No abstract provided.

Comparative Defamation Law: England And The United States, Vincent R. Johnson

Faculty Articles

England and the United States share a common legal tradition that has been shaped by principles dating back at least 800 years to the time of the Magna Carta. Even after the American colonies declared their independence from England in 1776, English law was still widely followed in the new nation unless it was inconsistent with American institutions or new ideas. As late as 1964, American libel law was essentially "identical" to English libel law. This was true, in part, because until the mid-twentieth century, defamation law in both countries was defined "mainly by the common law and decisions of …

Cutting The Wire: A Comprehensive Eu-Wide Approach To Refugee Crises, Kelsey Leigh Binder

Brooklyn Journal of International Law

This Note examines the current refugee crisis occurring in the European Union, where over a million refugees have entered the region since the beginning of 2015, and proposes that the EU implement a two-step permanent emergency framework for dealing with mass migration crises. It first looks at the major bodies of international refugee law, including a historical overview of its foundations, the 1951 Convention Relating to the Status of Refugees, and the 1967 Protocol Relating to the Status of Refugees. Next, it will explore the legal mechanisms that are in force throughout the EU, including the EU’s asylum laws and …

Refugees Without Borders: Legal Implications Of The Refugee Crisis In The Schengen Zone, Bridget Carr

Michigan Journal of International Law

This Note will first examine current practices utilized by Member States and their strategic partners outside the Zone to manage flows of third-country nationals from the Middle East and North Africa. It will then explore how these practices are not compatible with principles of protection from degrading and inhuman treatment, non-refoulement, and non-discrimination as codified in the Schengen Borders Code, European Convention on Human Rights, and the Refugee Convention, among others. Finally, this Note will propose targeted reforms for the Schengen Zone’s internal and external border management aimed at protecting the human rights of displaced persons and modifying incentive structures …

Surrogacy, Equal Status And Social Welfare Benefits, Mel Cousins

Mel Cousins

Testing Constitutional Pluralism In Strasbourg: Responding To Russia's "Gay Propaganda" Law, Jesse W. Stricklan

Michigan Journal of International Law

In 2013, the Russian Federation amended Federal Law No. 436-FZ, “On Protection of Children from Information Harmful to Their Health and Development” (2013 law), introducing language making illegal the public discussion—or, in the law’s words, “propagandization”—of what it called “non-traditional sexual relationships.” Undertaken during a period of increasing domestic and international hostility, the law was intended by the government to be a bold, two-fold rejection of supposedly “European” values: first, as resistance to the gay rights movement, which is presented as unsuitable for Russia; and second, as a means of further weakening the freedom of expression in Russia. On both …

Celebrity Newsgathering And Privacy: The Transformation Of Breach Of Confidence In English Law, John D. Mccamus

Akron Law Review

In recent years, a series of leading cases have returned to consider these questions. The implications of these decisions for the current shape of English law relating to civil redress for privacy invasion are the subject of this article. Surprisingly, perhaps, English courts have remained steadfast in their refusal to recognize invasion of privacy as a tort and in doing so have quite explicitly declined to rely on American experience in this area. Rather, English courts have preferred to resist innovation of this kind and leave the difficult question of privacy law reform to Parliament. On a number of recent …

Privatizing Human Rights? Creating Intellectual Property Rights From Human Rights Principles, David S. Welkowitz

Akron Law Review

This article focuses on one human rights treaty, the Convention, and the possible uses of its provisions to secure and expand intellectual property rights (“IP rights”). Although the Convention does not contain any provision specifically referencing IP rights, it does contain several provisions that could be used to expand IP rights. Furthermore, the existence of a substantial body of interpretive case law from the ECHR affords us a more detailed perspective on the manner in which the Convention could be used to further IP rights. Finally, the group of countries adhering to the Convention, though all part of Europe, represent …

The Concept Of Fundamental Rights In European Economic Community Law, Laurent Marcoux Jr.

Georgia Journal of International & Comparative Law

No abstract provided.

Removing The Distraction Of Delay, Jill E. Family

Jill E. Family

Immigration adjudication is in an awkward position. There is an intricate system to adjudicate immigration removal (deportation) cases, but that system is hindered by restrictions, and the constant threat of further restrictions, that reflect distaste for providing process to foreign nationals facing removal. There is a push and pull phenomenon, with immigration adjudication stretched uncomfortably in between two forces. On the one side, there is a push to apply common notions of due process to immigration removal cases, to push that the same concepts of procedural justice should apply in immigration cases as they would in any other context. On …

Removing The Distraction Of Delay, Jill E. Family

Catholic University Law Review

Immigration adjudication is in an awkward position. There is an intricate system to adjudicate immigration removal (deportation) cases, but that system is hindered by restrictions, and the constant threat of further restrictions, that reflect distaste for providing process to foreign nationals facing removal. There is a push and pull phenomenon, with immigration adjudication stretched uncomfortably in between two forces. On the one side, there is a push to apply common notions of due process to immigration removal cases, to push that the same concepts of procedural justice should apply in immigration cases as they would in any other context. On …

It's The Autonomy, Stupid!' A Modest Defense Of Opinion 2/13 On Eu Accession To The Echr, And The Way Forward, Daniel H. Bicket

Articles

The Court of Justice of the European Union has arrived! Gone are the days of hagiography, when in the eyes of the academy and informed observers the Court could do no wrong. The pendulum has finally swung the other way. The judicial darling, if there is one today, is Strasbourg, not Luxembourg. Not hours had passed before the Court's 258-paragraph long Opinion 2/13 on the Draft Agreement on EU Accession to the European Convention on Human Rights was condemned as “exceptionally poor.” Critical voices have mounted steadily ever since, leading to nothing short of widespread “outrage.”

Social Security, Discrimination And Justification Under The European Convention On Human Rights, Mel Cousins

Mel Cousins

This article considers the current state of the law concerning justification of potentially discriminatory treatment in the area of social security under the European Convention on Human Rights. Over time the UK courts have become familiar with the Convention and have improved their interpretation of human rights law and, in particular, non-discrimination under Article 14 of the Convention. The final step in this process is the consideration of proportionality in relation to the justification of potentially discriminatory provisions. There have been a number of recent important decisions on this issue from the Supreme Court including the Recovery of Medical Costs …

The European Convention On Human Rights, The Un Convention On The Rights Of The Child And The ‘Benefit Cap’ - R (Sg) V Secretary Of State For Work And Pensions [2015] Uksc 16, Mel Cousins

Mel Cousins

This note looks at the recent decision of the UK Supreme Court in the 'benefit cap' case. The Court narrowly rejected the appeal concerning whether the benefit cap was in breach of Article 14 of the European Convention on Human Rights but some judges would have held that the cap was in breach of the UN Convention on the Rights of the Child.

Disability Pensions, Property Rights And Legitimate Expectations: Béláné Nagy V. Hungary, Mel Cousins

Mel Cousins