Law Commons^™

Denial Of Justice: The Latest Indigenous Land Disputes Before The European Court Of Human Rights And The Need For An Expansive Interpretation Of Protocol 1, Giovanna E. Gismondi

Giovanna E. Gismondi

In its three latest decisions on indigenous land rights, the European Court of Human Rights (ECtHR) has afforded scant protection to indigenous peoples. Through an analysis of each case in terms of substantive and procedural law, this Article evaluates the challenges indigenous peoples face when pursuing their claims before the Court. I argue that the European Court's narrow interpretation of the "right to peaceful enjoyment of possessions" codified in Protocol 1 (Article 1) of the European Convention on Human Rights (ECHR) has failed to consider the importance of collective lands in securing the cultural survival of indigenous peoples, their economic …

Verboten: Forbidden Homeschooling In Germany And Its Conflict With International Religious Freedom., Jacob A. Aschmutat

Jacob A Aschmutat

Germany maintains strict compulsory education laws that prevent families from educating their children at home. Germany strictly enforces these laws, with little regard to the families’ incentives to remove their children from the public schools. As such, these laws contain no exemption for families interested in homeschooling for religious purposes. The absence of such an exemption seems to contradict the internationally recognized right to religious freedom, a right concretely granted through three international treaties that Germany has both signed and ratified. Several decisions by the European Court of Human Rights give little to no credence to the notion of religious …

The Principles Of International Law: Interpretivism And Its Judicial Consequences, Gianluigi Palombella

Gianluigi Palombella

Principles are part of international law as much as of other legal orders. Nonetheless, beyond principles referred to the functioning of IL, or the sector related discipline in discrete fields, those fundamental principles identifying the raison d’etre, purpose and value of the legal international order, as a whole, remain much disputed, to say the least. In addressing such a problem, one that deeply affects interpretation and legal adjudication, this article acknowledges the limits and weakness of legal positivism in making sense of the inter- and supra-national legal order(s). It appraises also the novel from the late Ronald Dworkin, concerning …

Torture In Us Jails And Prisons: An Analysis Of Solitary Confinement Under International Law, Anna Conley

Anna Conley

No abstract provided.

Fair Trial Guarantees Before The Court Of Arbitration For Sport, Jernej Letnar Cernic

Jernej Letnar Černič

The right to a fair trial is one of the backbones of the rule of law and a conditio sine qua non for the protection of human rights and fundamental freedoms. This article examines whether fair trial guarantees also exist before the Court of Arbitration for Sport. It attempts to identify whether the Court of Arbitration for Sport follows the fair trial guarantees developed in the jurisprudence of the European Court of Human Rights. This article thereafter tries to draw out an understanding of fair trial guarantees in sports arbitration.

Of Particles And Proportionality: Negotiating A Truce Between Humanitarian And Human Rights Principles In The Law Of Armed Conflict, Matt Meltzer

Matt Meltzer

The conflict between international humanitarian law (“IHL”) and human rights law (“HRL”) in the regulation of combat is one of the most hotly debated issues in the law of armed conflict. As human rights law has come into greater prominence over the past twenty years, international tribunals and non-government organizations have struggled with how to effectively integrate its principles with the longer-established strictures of international humanitarian law. Because human rights law would prohibit a large swathe of hostile conduct that international humanitarian law has long permitted, a conflict between these two fields is inevitable. At stake in this legal debate …

The Problem Of Same-Sex Marriage, From A European Perspective, Javier Nanclares

Javier Nanclares

This article will analyze various legislative positions together with the significance of the decisions taken by different national courts and some international ones on the appeals on the dismissal sentences on the subject of access to same-sex marriage. In particular, it will analyze the position of the European Court of Human Rights, the supra-national body whose decisions affect the legislation of those Member States who have signed the Treaty, and whose jurisprudence may compel them to make legal reforms. It will examine the constitutionality of limiting matrimony to that celebrated between persons of different sexes, in view of the technical …

Equality Qua Equality: A Comparative Critique Of The Tiers Of U.S. Equal Protection Doctrine, Lorenzo Di Silvio

Lorenzo Di Silvio

On February 23, 2011, the Obama Administration announced that it would no longer defend the constitutionality of the Defense of Marriage Act. Of great significance in this announcement was the Administration’s position that classifications on the basis of sexual orientation warrant heightened judicial scrutiny. Notwithstanding this announcement, the level of review applied to sexual-orientation classifications—and the manner in which a court determines whether a particular type of classification deserves more searching review—is an open question, the answer to which typically dictates the outcome of challenges to government classifications. Apart from this outcome determinativeness, affording heightened scrutiny to some classifications but …

Same-Sex Marriage: European Court Of Human Rights’ Jurisprudence And Conflicts Of Law - Possible Messages For And From The Supreme Court Of England And Wales, Brigitte J. Clark Dr

Brigitte J Clark Dr

ABSTRACT As more legislatures adopt marriage-like alternatives to same-sex marriage, international (and interstate) conflict of law issues take on additional significance. This paper debates the outcome of an appeal to the Supreme Court of the United Kingdom against the ban on same-sex marriage, especially those marriages validly celebrated in other jurisdictions on the basis of rights enshrined in the European Convention of Human Rights (ECHR) and Charter of Fundamental Rights of the European Union, with some comparative reference to the relevant legal positions in the United States, Canada and South Africa. At present, although Strasbourg jurisprudence has recognized the right …

Same-Sex Marriage: European Court Of Human Rights’ Jurisprudence And Conflicts Of Law - Possible Messages For And From The Supreme Court Of England And Wales, Brigitte J. Clark Dr

Brigitte J Clark Dr

ABSTRACT As more legislatures adopt marriage-like alternatives to same-sex marriage, international (and interstate) conflict of law issues take on additional significance. This paper debates the outcome of an appeal to the Supreme Court of the United Kingdom against the ban on same-sex marriage, especially those marriages validly celebrated in other jurisdictions on the basis of rights enshrined in the European Convention of Human Rights (ECHR) and Charter of Fundamental Rights of the European Union, with some comparative reference to the relevant legal positions in the United States, Canada and South Africa. At present, although Strasbourg jurisprudence has recognized the right …

Facilitating Friendly Settlements In The Inter-American Human Rights System: A Comparative Analysis With Recommendations, Sean B. Burke, Matthew P. Webster

Sean B Burke

No abstract provided.

International Trafficking In Women: Application Of The Council Of Europe Convention On Action Against Trafficking In Human Beings In Post-Conflict States And Creation Of A European Court To Adjudicate Cases Of Trafficking, Meredith Owen

Meredith Owen

This Comment will argue that although the European Convention on Action Against Trafficking in Human Beings is a useful framework in post-conflict states and despite necessary modifications of the European Convention to achieve greater success in enforcement, prosecution, and victim participation, this Convention provides important implications for other post-conflict regions and should be applied in Sierra Leone. Although post-conflict states such as Albania and Bosnia and Herzegovina have increased prosecution of traffickers, the trafficking in women for sexual exploitation still exists to a high degree. Stronger enforcement mechanisms should be in place, including proper protection and rehabilitation of the victim …

A Name Of One's Own: Gender And Symbolic Legal Personhood In The European Court Of Human Rights, Yofi Tirosh

Yofi Tirosh

Legal regulation of surnames provides a fascinating venue for examining how women negotiate their interests of autonomy and of stable personhood vis a vis a patriarchal naming structure. This is a study of 25 years of adjudication of surnames and personal status at the European Court of Human Rights. It explores the intricate ways in which legal norms governing surnames (and their judicial interpretation) sustain, shape, and reify social institutions such as gender, family, and citizenship.

As a pan European court, the adjudication of the ECHR operates within the framework of human rights. The universal characteristics of human rights principles …

The Fork In The Road After Strasbourg: Effective Remedy Or Moral Victory?, Riccardo De Caria

Riccardo de Caria

The article deals with the enforcement of judgments of the European Court of Human Rights in domestic systems, particularly focusing on the Italian law. After a historical background on European integration and Italy’s leadership role in this process (§ 1), it considers the main provision governing the matter, Art. 46 of the European Convention on Human Rights (that provides for the duty to “abide by the final judgment of the Court”), showing how the way this provision is construed influences European integration (§ 2). Next, the article considers Italy, that – unlike other States – has never allowed any form …

The Fork In The Road After Strasbourg: Effective Remedy Or Moral Victory?, Riccardo De Caria

Riccardo de Caria

The article deals with the enforcement of judgments of the European Court of Human Rights in domestic systems, particularly focusing on the Italian law. It starts with a historical background on European integration, highlighting the leadership role played by Italy in this process (§ 1). It then considers the main provision governing the matter, namely Art. 46 of the European Convention on Human Rights, that provides for the duty to “abide by the final judgment of the Court”, and shows how the way this provision is construed influences European integration (§ 2). After that, the article considers the Italian approach. …

Reform Of The Reform: The European Court Of Human Right’S Endless Quest For Efficient Justice, Nikolas Kyriakou

Nikolas Kyriakou

This article addresses the changes to be introduced in the edifice of the European Convention on Human Rights through the 14th Protocol. Particular attention will be paid on the impact of the said amendments on cases relating to property claims initiated by Cypriot nationals against Turkey. In essence, along with a bird’s eye view to institutional issues and restructuring, the author will present the two latest reforms in the judicial system of the Court. Protocols Nos. 11 and 14 are oriented in rendering the Strasbourg Court more efficient and delve upon its quasi-constitutional nature in the European judicial setting. The …

Retuning The Harmonization Of Eu Asylum Law: Exploring The Need For An Eu Asylum Appellate Court, Ariel Meyerstein

Ariel Meyerstein, JD, PhD

This Comment takes as its starting point the adoption of the first five pieces of harmonized legislation created as part of the EU’s asylum regime overhaul of the early 2000s and proposes constructive solutions to compensate for the inadequate results of the May 2004 negotiations in Brussels. Specifically, it is proposed that an EU-wide asylum appellate court could assist the Member States in completing the work they started by creating a comprehensive harmonization consistent with international law.