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The Inter-State Application under the European Convention on Human Rights

Between Collective Enforcement of Human Rights and International Dispute Settlement

Series:

Isabella Risini

The Inter-State Application under the European Convention on Human Rights provides the first comprehensive monograph about the State-to-State human rights enforcement mechanism. The functions of the mechanism include also dispute settlement aspects, which are related to the compulsory jurisdiction of the Strasbourg Court. The study provides a full account of the development of the Inter-State Application under Article 33 ECHR and puts its case law in the relevant historical and institutional context. The analysis concludes with detailed reform considerations which are situated within the discussion about the role of the European Court of Human Rights. The focus lies on the possibility to address and improve systemic human rights deficits beyond the single case. The Court’s growing inter-State docket evidences the need for legal certainty.

Series:

Lachezar D. Yanev

The proper construction of co-perpetration responsibility in international criminal law has become one of the most enduring controversies in this field, with the UN Tribunals endorsing the theory of joint criminal enterprise, and the International Criminal Court adopting the alternative joint control over the crime theory to define this mode of liability. This book seeks to reconcile the ICTY/R’s and ICC’s jurisprudence by providing a definition of co-perpetration that could be uniformly applied in the two justice models that these institutions represent: the ad hoc- and the treaty-based model. An evaluation framework is adopted, pursuant to which the origins, merits and deficiencies of the said competing theories are critically assessed, and a refined legal framework of co-perpetration responsibility is proposed.

Civil-Military 'Legal' Relations: Where to from Here?

The Civilian Courts and the Military in the United Kingdom, United States and Australia

Series:

Pauline Therese Collins

Civil-military relations establishes the civilian control over the military to protect democratic values. This book argues analysis of the CMR is distorted by the absence of consideration of the judicial arm, with the ‘civil’ seen as referring only to the executive and/or legislature. The civil courts approach to military discipline and the impact that has for CMR within — the United Kingdom, United States and Australia is investigated. The author concludes that by including the courts in the development of CMR theory militarisation of the civilian domain is discouraged. A paradigm shift acknowledging the fundamental role of all three organs of government in liberal democracies, for control of States’ power is essential for genuine civilian oversight.

Protecting Stateless Persons

The Implementation of the Convention Relating to the Status of Stateless Persons across EU States

Series:

Katia Bianchini

In Protecting Stateless Persons: The Implementation of the Convention Relating to the Status of Stateless Persons across EU States, Katia Bianchini offers an in-depth comparative study of legislation, case-law and decision-making concerning the treatment of stateless persons in ten EU States. Focusing on whether and why statelessness determination procedures are needed, what their constituent elements should be, how the definition of "stateless person" is interpreted and applied, and what rights are attached to the granting of status, Katia Bianchini critically examines current national legal frameworks, and points a way forward for more effective legislation and practice in the area of statelessness. Against this backdrop, she adds insights into the wider debate on how human rights treaties should be implemented.

Accommodating Security Imperatives v. Protecting Fundamental Rights

The Challenge of States of Emergency in the Context of Countering Terrorism in Turkey

Emre Turkut

This article seeks to illuminate the use of exceptional national security and emergency powers in the fight against terrorism in Turkey. The article is organized in four parts. Section i looks at the role of terrorism in the activation and justification of a state of emergency and introduces the Turkish case within this context. Section ii explores the historical origins of the Turkish state of emergency regime and analyses the principles regulating emergency regime at the Turkish domestic level. Section iii examines the operation of governmental emergency powers by providing an analysis of the state of emergency practices in Turkey, both past and present. A principal focus is necessarily directed at the state of emergency and the measures deployed within this framework in Turkey’s predominantly Kurdish southeast, where emergency rule was in force from 1987 to 2002, and the recent nationwide state of emergency in the wake of the 15 July attempted coup. Section iv presents concluding remarks.

Chiara Favilli

The osce commitments agreed during several meetings held in the past years address economic, political and social aspects of migration. As far as Italy, while the national legal framework is almost in line with international standards, the adoption of practical measures, their implementation and the promotion of projects prove difficult. Moreover, the increased exposure that Italy faces as a country lying on the external maritime border of the European Union makes it more difficult to manage migration flows via the sea.

The Breakdown of State-building: From the Nation to Radicalisation

The Security Aspects of Exclusion and Identity Formation

Peter Knoope and Saré Knoope

This article attempts to explore the nexus between exclusionary state-building practices, inter-ethnic relations and Violent Extremism and Radicalisation that Lead to Terrorism (verlt). The current focus on individual trajectories has left the social context in which individuals radicalise underexplored. By taking a birds-eye view, this article aims to untangle the ways in which particular historic conditions and perceptions of discrimination and marginalisation following state-building practices feed specifically into the radicalisation of minority communities. Following a comparison between state-building practices in Turkey, China and Spain and the impact on Kurdish, Uyghur and Basque identity construction respectively, the authors argue that the failure to include minority groups into the identity of the state is one of the key reasons for the politicisation of minority identities. This implies the need for inclusionary policies as a response to verlt. It is exactly through the promotion, facilitation and execution of inclusive policies that the osce can make an important contribution.

Els De Busser

Any crime could generate digital evidence. That is a reality law enforcement authorities across the world need to face. The volatile and “unterritorial” nature of the evidence means that international cooperation in criminal matters is confronted with new questions. One of these questions is whether the traditional cooperation mechanism, mutual legal assistance, is a viable way of working. Due to its time-consuming and cumbersome functioning combined with the lack of a faster alternative, countries have developed unilateral and extraterritorial methods of evidence gathering. This paper zooms in on this development and the risks it entails.

E.T. Phoned Home…They Know

The Extraterritorial Application of Human Rights Treaties in the Context of Foreign Surveillance

Holly Huxtable

The rationale behind the applicability of human rights treaties to foreign surveillance is the subject of debate. Presented with the opportunity to weigh in on this issue in the case of Big Brother Watch and Others v The United Kingdom, the European Court of Human Rights simply assumed (and rightly so) that the European Convention on Human Rights applies, providing no further reasoning. This article explores the challenges that arise with establishing jurisdiction over foreign surveillance under human rights treaties, and argues for an alternative base for extraterritorial jurisdiction grounded in the moral and theoretical principles underlying the human rights regime.

Human Rights and Climate Change

Protecting the Right to Life of Individuals of Present and Future Generations

Julie H. Albers

This article explores the opportunities to use international human rights law to protect one’s right to life against the effects of climate change. It discusses four legal avenues: greening the existing human rights paradigm, formulating a new substantive right to the environment, public interest litigation and intergenerational justice. This is illustrated with case law from the European Court of Human Rights and various national jurisdictions. The main finding is that the human rights system should become more open towards public interest litigation and intergenerational justice, complemented by a broadening of the standing requirements.