Maandelijks archief: oktober 2019

A new mechanism for supervision of derogations from the European Convention on Human Rights: filling the accountability gap?

Article 15 of the European Convention on Human Rights (ECHR or the Convention) provides that in time of war or other public emergencies a State may derogate from most of its human rights obligations. This derogation clause grants a State a wide discretion to determine the reasons and the duration of a derogation as well as the aptness of emergency measures. The rationale is that a State is best placed to determine what constitutes a public emergency and how to restore order in its territory.

Nevertheless, such a discretionary power inherently leaves room for abuse. In the context of derogations, worrisome practices are not scarce in our present times, where crisis and emergencies (under the notions of terrorism, mass migration etc.) are pronounced lightly. In this vein, it is of pivotal importance that States’ derogation practices are exposed to strict scrutiny by international supervisory mechanisms.

At the level of the Council of Europe (CoE), the European Court of Human Rights (ECtHR or the Strasbourg Court) was the sole mechanism to exercise such a supervisory role. In addition, the Venice Commission has issued recommendations on certain derogation practices. However, it lacks the institutional mandate to engage in any meaningful supervisory function. This blog argues that the Parliamentary Assembly of the Council of Europe (PACE) has, through its Resolution 2209 (2018), established a new layer of supervision of derogation regimes by empowering the Secretary General of the CoE to actively engage with derogation practices. This blog will, first, outline why the Strasbourg Court by itself is not capable to effectively supervise states of emergency and, second, whether this gap can be filled by the enhanced role of the Secretary General of the CoE.  Lees verder

Cosmopolitan extraterritoriality

On 14 September 2019, I gave a presentation on cosmopolitanism and extraterritoriality at the annual conference of the European Society of International Law in Athens, Greece (panel on extraterritoriality). In this post I restate the main points of my presentation. This post also serves as a wrap-up of two research projects which I have carried out over the last five years, partly under Ucall auspices, on extraterritoriality and global values. These projects involved in total seven PhD researchers, whom I would like to wholeheartedly thank for their contributions. Two of these researchers were affiliated with Ucall (Lucas Roorda and Friederycke Haijer). A monograph bringing together the various parts of the project is forthcoming in spring 2020, provisionally titled ‘Selfless Intervention. The Exercise of Jurisdiction in the Common Interest’ (under contract with Oxford University Press). As cramming the research results of a large project into one blogpost is quite impossible, I will paint with a broad brush, and make choices. I will start by defining cosmopolitanism, and go on to explain how common interest-based reasoning may be inscribed into existing principles of jurisdiction, in particular territoriality. The first part of the post will be conceptual, while the second part will be more practical and doctrinal. Lees verder