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March 22nd, 2010 at 05:41pm
On February 18th and 19th, ministers representing 47 nations from the Council of Europe convened in Interlaken, Switzerland to address the need for urgent reforms to the European Court of Human Rights (ECtHR). The resulting Interlaken Declaration now sets in motion a process for developing future reforms and the continued existence of the ECtHR.
The Declaration comes in response to a heavily overburdened ECtHR. There are approximately 120,000 outstanding cases, with an estimated ninety percent being “clearly inadmissible or having no legal basis,” according to the Council of Europe. Addressing a desperate situation, Secretary General Thorbjørn Jagland announced that, “We will save the Court because we have no other choice. People in Europe deserve no less and will get no less.”
The Interlaken Conference continues a process of ECtHR reform begun in 2001. Protocol 14, which calls for long-term efficiency within the ECtHR, was proposed then but was long went unratified. On Thursday, February 18, immediately before the opening of the Ministerial Conference, the Russian Minister of Justice Alexander Konovalov deposited the ratification instrument. Protocol 14 will therefore enter into force on June 1, 2010, paving the way for court reform.
The Interlaken Declaration called on member states in consultation with civil society to produce specific proposals for reform by June 2012, and for a fuller implementation of the “subsidiarity principle,” which recognizes the primary role of national governments in implementing ECtHR decisions.
The Declaration comes during Switzerland’s sixth-month term as President of the Council of Europe.
For more information, see here.
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March 3rd, 2010 at 04:15pm
In Ahmet Arslan and Others v. Turkey, the European Court of Human Rights overturned, by a vote of 6-1, a 1997 decision by the Turkish courts convicting 127 Turkish nationals of breaking two laws, one against wearing headgear and the other against wearing religious clothing in public other than for religious ceremonies. The applicants, members of a religious group known as Aczimendi tarikatÿ, claimed that their conviction violated Article 9 (freedom of thought, conscience, and religion) of the European Convention on Human Rights. The ECtHR found that the decision of the Turkish courts amounted to violation of the applicants’ freedom of conscience and religion by prohibiting their expression of religion through their clothing. The court noted that it might have accepted that strict maintenance of a secular system was important for Turkey’s democracy and public safety, but that the Turkish judicial decisions at issue had failed to rely on that justification. The Court further noted that, unlike several other religious dress cases it had decided, the applicants here were punished for their religious dress in public areas that were open to all, rather than in public establishments where the state’s interest in religious neutrality might outweigh the individual’s right to manifest his or her religion.
The clothing mandated by Aczimendi tarikatÿ religious order includes a turban, baggy pants, a tunic, and a stick. Applicants had been arrested in 1996 while walking to the Kocatepe Mosque in Ankara, and filed their petition with the ECtHR in 1997.
For more information, see here and here.
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February 5th, 2010 at 10:23am
Two trade ministers from the developing world have publicly voiced doubts about the willingness and ability of the United States to reach a global trade agreement during 2010. Their criticism calls into question the ability of leaders of the G20 nations to follow through on their September 2009 promise to conclude a trade agreement this year.
Speaking at the World Economic Forum in Davos, Switzerland, South African trade minister Rob Davies cited the presence of relatively junior American officials at an ongoing round of trade talks and American refusal to base its present bargaining positions on prior compromises reached as part of the Doha Development Round negotiations as evidence that the United States is unlikely to be part of any trade agreement reached this year. Davies also noted domestic political opposition as a factor in American hesitancy to reach a trade deal.
Rachid Mohamed Rachid, trade minister of Egypt, also recently stated that he doubted that the United States would be part of a trade agreement this year.
Developing nations had been pressing the World Trade Organization for an agreement limiting industrialized nations’ ability to subsidize agricultural exports, among other provisions. Such an agreement now appears unlikely.
For more information, please click here.
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February 3rd, 2010 at 01:58pm
Justice Albie Sachs, who served on the Constitutional Court of South Africa until October 2009 and author of the recently published book The Strange Alchemy of Life and Law, will speak at Harvard Law School on February 5 at 3:00 pm in Austin North.
The program is sponsored by the Harvard Law School Office of the Dean, International Legal Studies Program, and Office of Public Interest Advising.
For more information, please click here.
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February 2nd, 2010 at 11:11am
Speaking at a press conference in Strasbourg, Jean-Paul Costa, President of the European Court of Human Rights (ECHR), expressed three reasons for optimism about reform measures for the Court in 2010.
Firstly, the Treaty of Lisbon opens the way for the European Union’s participation in the European Convention on Human Rights, strengthening the role of human rights in Europe. Dedicated “to enhancing the efficiency and democratic legitimacy of the Union and to improving the coherence of its action,” the treaty was written in 2007. It entered into force in December 2009, a month after it was ratified by the last remaining member of the European Union, the Czech Republic. The treaty amends the Treaty on the European Union and the Treaty Establishing the European Community into a constitutional-type document intended to strengthen and guide the European Union.
Secondly, in January Russia ratified Protocol 14 of the European Convention for the Protection of Human Rights, which is designed to overhaul the procedures of the ECHR. Russia was the last of the forty-seven members of the Council of Europe to ratify the Protocol, which has been on the table since 2006.
Finally, in February 2010 a conference on the future of the ECHR will be held in Interlaken, Switzerland. The conference will draw together member states to celebrate the 50th anniversary of the ECHR and to reaffirm their commitment to the protection of human rights in Europe, while outlining a roadmap for the Court’s future development. Currently, more than 100,000 cases are pending before the Court.
For further information, please click here, here, and here.
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November 26th, 2009 at 11:12pm
The Chairman of the International Chamber of Commerce, Victor K. Fung, last week expressed concern about rising world protectionism and lackluster progress on free trade negotiations. The combination, he argued, would imperil the world’s fragile economic recovery and undermine progress already made towards emerging from the current downturn.
Chairman Fung made his remarks as he addressed the Asian Pacific Economic Cooperation CEO Summit in Singapore. Although he praised public stimulus spending around the world for laying the groundwork for long-term economic growth, he criticized the G20 governments, especially the United States and China, for adding trade barriers. Protectionism, he told the group, undermines successful economic recovery, and economic nationalism in the US-China trade relationship threatens to be particularly damaging.
The failure to conclude the Doha Round of trade negotiations also signals lackluster commitment to free trade and imposes another potential obstacle to worldwide recovery, Chairman Fung argued. Although praising the G20’s ostensibly strong commitment to Doha, Chairman Fung chastised the world community for failing to conclude an agreement despite eight years of trying.
For more information, please click here.
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November 13th, 2009 at 07:21pm
The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) reduced the sentence for former Bosnian Serb army general Dragomir Milosevic from 33 to 29 years on Thursday. The tribunal found that the trial court had erred in its 1997 ruling and that there was insufficient evidence that Milosevic had ordered three shellings of civilians during his command of the siege of Sarajevo from 1994 to 1995.
Milosevic was a commander of the Bosnian Serb Army’s Sarajevo Romanija Corps (SRK), which laid siege to Bosnia’s capital, Sarajevo, for 44 months prior to the end of the Bosnian Conflict in November 1995. During the siege, which was the longest blockade in Europe since the end of WWII, snipers from the SRK routinely shot at civilians and troops shelled the city. Estimates by human rights organizations put the number of civilians killed at 10,000, approximately 1,500 of whom were children. Milosevic assumed command of the SRK from Stanislav Galic in August 1994 and held that position for fifteen months until the conflict’s end. Galic, the only criminal convicted of war crimes to have received a sentence of life imprisonment on appeal from the ICTY, was sentenced in November 2006.
Milosevic was indicted in 1998 and surrendered to the ICTY in 2004. He was convicted in 2007 of war crimes and crimes against humanity, including murder, inhumane acts, and acts of terror. Milosevic had appealed his 2007 conviction, while the prosecution had requested that the tribunal increase his sentence to life imprisonment. His appeal was heard this July, and the Appeals Chamber’s decision was announced on Thursday, November 12.
The Appeals Chamber found that there was not sufficient evidence to draw the inference that Milosevic ordered the sniping of civilians during the siege, or that he specifically ordered three shelling attacks on certain civilian sites. The tribunal did find, however, that Milosevic was nonetheless responsible for failing to stop and punish the crimes of his troops, and that he encouraged the commission of crimes against civilians through “maintaining and intensifying the campaign directed at the civilian population in Sarajevo.” It therefore reclassified his convictions for planning and ordering the sniping of the civilian population with a conviction, under Article 7(3) of the ICTY Statute, for failing to prevent and punish the crimes of his subordinates. The Appeals Chamber held that although the reclassification of Milosevic’s sniping convictions did not itself warrant a reduction of his sentence, the reversal of his convictions for the shelling incidents did have a limited impact on his over culpability. Dismissing the prosecution’s appeal entirely, the court accordingly reduced Milosevic’s sentence to 29 years. Judge Lia Daqun issued a partial dissent regarding the crime of terror conviction and certain sentencing issues.
Milosevic, 67, is no relation to the late Yugoslav president Slobodan Milosevic
For more information, please see here and here.
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November 12th, 2009 at 03:10pm
World Trade Organization Director-General Pascal Lamy last Monday called on the international community to reach a robust climate change agreement during Copenhagen Climate Conference next month. Director-General Lamy carefully expressed preference for an international accord coming out of Copenhagen, one which the WTO would seek to help implement. This approach, he asserted, would not only result in more effective climate change mitigation but would also relieve the WTO of the need to address the trade implications of unilateral or regional climate change efforts piecemeal.
Explicitly reinforcing his speech before a gathering of trade ministers in Bali two years ago, Lamy rejected a “trade-first, climate-second” approach for the WTO. Instead, he asserted that the WTO would welcome a clear, consensual agreement on principles and methods for mitigating climate change coming out of Copenhagen. Such an agreement would allow the WTO to take its cues from the expressed will of the international community and prevent the WTO from having to adjudicate disputes arising out of the fragmentary national or regional climate change mitigation that would inevitably take place in the absence of a clear Copenhagen accord. That clarity and statement of will is necessary, he said, to combat “the single biggest challenge to civilization as we know it.”
For more information, please click here.
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November 7th, 2009 at 05:28am
In Case C-63/08, Virginie Pontin v T-Comalux SA (29 October 2009) the European Court of Justice (ECJ) ruled that a 15 day time bar on claims for wrongful dismissal due to pregnancy was to brief to meet the standard of the principle of effective judicial protection of an individual’s rights under Community law. Articles 10 and 12 of Council Directive 92/85/EEC of 19 October 1992 and Article 2 of Council Directive 76/207/EEC of 9 February 1976 provide the substantive basis for EU protection of women’s rights particularly with respect to the workplace. EU Directives set out binding policy goals to be implemented by the Member States leaving the means to those ends to be implemented by the Member States through national legislation. The Directives here set out goals for workplace safety, maternity leave, and prohibitions of dismissal of workers, as well as establishing redress mechanisms. In the case at bar the remedy under national law for wrongful dismissal was time barred after just 15 days from posting of notice of dismissal. The ECJ found that time bar likely too brief to meet the demands of the Pregnant Worker’s Directive, strongly implying the 15 day time limit in Luxembourgeois law failed to meet the demands of the general principle of effective judicial protection and therefore also implying that this very brief time delay was an inadequate implementation by the Member State (Luxembourg) of the EU Directives finding for plaintiff.
For more information:
Synopsis:
Full text of Case C?63/08.
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November 1st, 2009 at 02:54pm
Turkey is having a bad day at the European Court of Human Rights (ECtHR). The Court ruled in one decision that Turkey was liable for wrongful death of a Cypriot who in uniform but unarmed crossed the U.N. Buffer zone. Likewise, the Court ruled that Turkish censorship of Turkish newspapers was too restrictive.
In Kallis and Androulla Panayi v. Turkey (1) the Court ruled that Turkey violated Art. 2 of the European Convention on Human Rights (ECHR). The court rejected Turkey’s defences that the plaintiff ought to have first exhausted local remedies(2) as local remedies would have been ineffective(3) awarding monetary damages to plaintiffs under Art. 41 ECHR.
In Ürper and Others v. Turkey(4) the Turkish government had suspended publication of several newspapers which it regarded as publishing propaganda for the Communist party of Kurdistan (PKK), a group it regards as terrorist. The Court used the familiar general principle of proportionality (legitimate purpose, rational means, least restrictive means) test to determine whether the invasion of the fundamental right to freedom of press was legitimate. The court determined that the ban on publication was an interference in the fundamental right(5) prescribed by law,(6) that the end sought by Turkey was a legitimate aim of preventing disorder and crime,(7) but that the means used to that end were not necessary interferences.(8) That is, using the more familiar general principle of proportionality terms, the invasion of the fundamental right was not the least restrictive one possible.
As well as representing the sorts of steps which Turkey must consider taking as it seeks accession to the E.U. the case is relevant as an example of the globalization of fundamental rights as legitimators of the state and as the objective of the international legal system. Further, the Ürper case is one more example of the rise of proportionality as the method to adjudicate constitutionalized fundamental rights. The cases can thus be seen as examples of contemporary trends in the globalization of legal consciousness, the convergence of norms to a global ius commune and as of political interest too.
(1) Application no. 45388/99 (27/Oct. 2009).
(2) Kallis at para. 28.
(3) Kallis at para. 35.
(4) Applications nos. 14526/07, 14747/07, 15022/07, 15737/07, 36137/07, 47245/07, 50371/07, 50372/07 and 54637/07.
(5) Ürper, para. 24.
(6) Ürper, para. 28.
(7) Ürper, para. 32.
(8) Ürper, para. 44.
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