The European Convention on Human Rights and General International Law

This book explores the interaction, divergence, and convergence between the European Court of Human Rights and general international law as developed by the International Court of Justice. It focuses on sources of international law, methods of interpretation, jurisdiction, state responsibility and immunity.

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.

This edited volume is the result of a conference held on 5 June 2015 at the headquarters of the European Court of Human Rights (ECtHR), reflecting the dialogue between judges of the ECtHR, judges of the International Court of Justice (icj) and academics. The book's intention is to contribute to the debate on fragmentation and convergence between the European Convention on Human Rights (echr), on the one hand, and general international law, on the other. It demonstrates the mutual influences between the two by focusing on five specific topics, namely: sources, interpretation, jurisdiction, state responsibility and immunity ... Overall, the book contributes to the clarification of the fluctuating and multi-direction relationships between the ehcr and general international law [... and] is likely to galvanise further studies on convergence and divergence.

Auteur
Anne van Aaken is a Professor for Law and Economics, Legal Theory, Public International and European Law at the University of St. Gallen, Switzerland. She was Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law and taught as a guest professor at numerous universities in Europe, Africa, Asia and Latin America. She was a Global Law Professor at NYU in 2016 and a Fellow at the Institute for Advanced Study Berlin in 2010/11. Van Aaken was also a Vice-President of ESIL, President of the Programmatic Steering Board of the Hague Institute for the Internationalisation of Law, Vice-President of the European Association of Law and Economics, and is a Member of ILA Committees. She has been awarded an Alexander-von-Humboldt-Professorship in Germany and will take on her new position at the University of Hamburg in fall of 2018. Iulia Motoc is a Judge at the European court on Human Rights and Professor at the University of Bucharest. She taught at several universities in Europe, Africa, Latin America, and United States. She was Special Guest Professor at EUI University in Florence and Senior Fellow in NYU and Yale School of Law. Motoc was also a Member and President of the UN Sub-Commission on Human Rights (2000-2007) UN Special Rapporteur of the Democratic Republic of Congo (2001-2004), Member and Vice-President of the UN Human Rights Committee ( 2006-2013), and Judge of the Constitutional Court of Romania (2010-2014).

Contenu

• Preface

• Introduction

• I: Sources

• 1: Ineta Ziemele: European Consensus and International Law

• 2: Angelika Nußberger: Law or Soft law - Does It Matter?: Distinction Between Different Sources of International Law in the Jurisprudence of the ECtHR

• II: Interpretation

• 3: Anja Seibert-Fohr: The Effect of Subsequent Practice on the European Convention on Human Rights: Considerations from a General International Law Perspective

• 4: Geir Ulfstein: Evolutive Interpretation in the Light of Other International Instruments: Law and Legitimacy

• III: Jurisdiction

• 5: Marko Milanovic: Jurisdiction and Responsibility: Trends in the Jurisprudence of the Strasbourg Court

• 6: Isil Karakas and Hasan Bakirci: Extraterritorial Application of the European Convention on Human Rights: Evolution of the Court's Jurisprudence on the Notions of Extraterritorial Jurisdiction and State Responsibility

• 7: Ganna Yudkivska: Territorial Jurisdiction and Positive Obligations of an Occupied State: Some Reflections on Evolving Issues under Article 1 of the Convention

• IV: Responsibility

• 8: Samantha Besson: Concurrent Responsibilities under the European Convention on Human Rights: The Concurrence of Human Rights Jurisdictions, Duties and Responsibilities

• 9: James Crawford and Amelia Keene: The Structure of State Responsibility under the European Convention on Human Rights

• 10: Iulia Motoc and Johann Justus Vasel: The ECHR and Responsibility of the State: Moving Towards Judicial Integration: A View from the Bench

• 11: Linos-Alexandre Sicilianos: The UN Security Council, State Responsibility and The European Court of Human Rights: Towards an Integrated Approach?

• 12: Paulo Pinto de Albuquerque and Anne van Aaken: Punitive Damages in Strasbourg

• V: Immunity

• 13: Philippa Webb: A Moving Target: The Approach of the Strasbourg Court to Immunity

• 14: Riccardo Pavoni: The Myth of the Customary Nature of the United Nations Convention on State Immunity: Does the End Justify the Means?

• The European Convention on Human Rights and General International Law: Concluding Reflections on the 2015 Strasbourg Conference