Activists in international courts: Backlash, funding, and strategy in international legal mobilization

To better understand the dynamics between states and international human rights courts, international relations scholars must incorporate a systematic understanding of how nongovernmental rights activists influence the decisions of international human rights courts—for instance, the European Court of Human Rights and the Inter-American Court of Human Rights—and the impacts of those decisions on the ground, despite growing state backlash against international human rights courts. To date, several bodies of literature have considered these questions, but none have placed nongovernmental activists’ roles in full focus. The international relations and international law scholarship on judicialization of international politics and state compliance often acknowledges but does not thoroughly examine the role of activists in international law. In contrast, a second body of scholarship, on transnational advocacy networks and legal mobilization, often does theorize the role of activists in international and domestic politics but rarely focuses on activism in international human rights courts. While both bodies of literature acknowledge that nonstate actors influence the practice of international human rights courts, they have not proposed an analytical framework that encapsulates the dynamic relationships among nonstate actors, states, and international human rights courts. By proposing a framework on these relationships, we argue that, beyond simply influencing the outcome of a case in an international court, rights activists—whether NGOs or individual cause lawyers—have multiple reverberating effects upon all stages of case development and political impact. We identify and illustrate three fields in which the strategic efforts of activists play out, with significant consequences for courts’ authority over time. These fields are: (1) strategic litigation activity, (2) advocacy to improve states’ implementation of international human rights courts’ jurisprudence, and (3) responses to state backlash. Taken together, these fields can point us to an analytical path to study the practices of rights activists at international courts.

The Nuremberg tribunal was the expression and the beginning of states' recognition of their duty to prosecute genocide and other gross human rights violations. It was a first step towards fulfillin...

The article discusses the impact of the European Convention on Human Rights (‘the Convention’)  and the  case law of the European Court of Human Rights on Estonian law. It gives historical background on the ratification of the Convention and its protocols by Estonia and describes the status of the Convention in the Estonian legal order. It then shows in more detail the impact of the case law of the Strasbourg Court on Estonia’s legislature, executive power, and judiciary and examines the case law pertaining in particular to the historical past, deprivation of liberty, prison conditions, fair trial and length of proceedings, retroactivity, and lack of foreseeability of criminal law, along with the case law on pluralism and civil rights, especially freedom of expression. In addition, the article focuses on the important issue of reopening of a case on national level once the European Court of Human Rights has found a violation and looks at the implementation of judgements of that court by Estonia in general. Additional remarks are made on the Supreme Court of Estonia’s application of the Convention and the case law of the European Court of Human Rights. Finally, the impact of the case law of the Strasbourg Court in relation to Estonia on the general development of precedents with that court is discussed. In conclusion, in relation to the case law of the European Court of Human Rights, it is important to understand that the Court finding a violation of the Convention in respect of Estonia is not so much a condemnation, ‘against’ the country, as a learning opportunity, in a sense, for Estonia’s democracy, rule of law, and human rights protection system. Furthermore, there could well be other difficulties in Estonia that the Court has for various reasons had no opportunity to address. This can be seen in areas wherein the Court has found a violation by another state but wherein a similar problem still exists in Estonia – e.g., in relation to prisoners’ voting rights. It is important to consider a more global picture of the human rights situation. It is unfortunate that in Estonia, especially in the media and for the wider public, little attention is paid still to the case law of the Court with respect to other states.  In general, European law has been well accepted in Estonia, especially the Convention and the case law of the Court. Working from the Estonian examples, one can confirm that the legislature; the executive power, even more so; and, above all, the judiciary of Estonia have recognised well that the Convention is an inseparable part of Estonia’s legal and democratic culture. Estonian courts need to feel that they also are human rights courts, especially in dealing with the facts and Estonian law, domains wherein the Court cannot and should not act as a fourth or first instance. At the same time, the Court should be able to speak not only to the Estonian courts as counterparts but also to the Estonian people. They as well need to understand European human rights law. All in all, Estonia is quite lucky: it does not have particularly worrying human rights problems; not many violations of the Convention are found in respect of Estonia by the Court. Estonian cases have been dealing with more or less the same issues every ordinary democratic country faces, even to a certain extent with problems of a modern, well-advanced society, such as freedom of expression and privacy rights on the Internet. Also the Court has been lucky to have Estonia as an exemplar: a country wherein the Convention system and the Court’s case law have been to a large extent respected and well complied with. But this mutual ‘happiness’, this quite nice two-way street, should not be taken for granted. The Court’s case law is a moving target. It is hoped that all future developments related to the Court will contribute to improvement of the protection of human rights, democracy, and the rule of law all over Europe. Neither Estonia nor any other European country can apply the generally recognised principles by choice ‘in its own way’.  Estonia’s trump in Europe and beyond could be to serve as a model in the protection of human rights. In consideration of its experience, geopolitical location, and size, alongside its investments in education and the historically rooted importance of nurturing intellectual and cultural values, Estonia could be in a very good position to achieve this ambitious goal.&#160

The scientific article examines the activities of the European Court of Human Rights and identifies the significance of the relevant case law of the European Court for the case law of Ukraine. It is noted, that one of the issues, studied within the topic, is the sources and legal framework, which is especially relevant in the adoption of the Law of Ukraine «On Enforcement of Decisions and Application of the Case Law of the European Court of Human Rights», according to which courts use the Agreement and case law as a legal source in cases. The activity of the European Court of Human Rights, the role and impact on the judicial system of Ukraine are analyzed, the relevant examples are given. It is concluded, that the implementation of international human rights law into Ukrainian law is a complex procedure that requires special doctrinal consideration, as today Ukrainian citizens are among the most active complainants to the European Court of Human Rights, which indicates a fairly high insecurity by national legal mechanisms. In order to increase the credibility of the judiciary, courts should take into account the European experience, decisions and observations of the Court in their work. The Court's case law is said to play an important role in the judicial reform process as it approaches the European legal framework for human rights standards in Europe. The current law cannot fully protect a person or build justice if it is not applied properly. Based on existing ECtHR rulings, judges can accurately understand the rule of law and apply it properly, which will help improve human rights, accurate understanding and implementation of the Agreement on Ukraine. Based on the study, it was concluded, that it is necessary and appropriate to implement the decisions of the European Court of Human Rights, as in this way it is possible to ensure the protection and defense of human and civil rights and freedoms

Normative Consensus and Contentious Practice: Challenges to Universalism in International Human Rights Courts Courtney Hillebrecht (bio) I. INTRODUCTION In 2015 the Russian Constitutional Court announced that it would review all of the European Court of Human Rights (ECHR) rulings against Russia for their constitutionality.1 This decision, which both the Duma and the Kremlin supported, underscored a fundamental disagreement between Russia and the ECHR about both the substance of human rights norms and the ways in which disagreements about human rights can and should be resolved. Russia has been a member of the Council of Europe since 1996 and agreed to accept the compulsory jurisdiction of the ECHR in 1998. Russian citizens regularly seek recourse at the ECHR and Russia even complies with many of the Court’s demands to pay financial reparations to victims. And yet, Russia’s prolonged tensions with the ECHR are textbook examples of the [End Page 190] persistent, unresolved disputes at the center of the promotion and adjudication of universal human rights. Russia’s relationship with the ECHR suggests that underneath the façade of the institutionalization and judicialization of human rights remain fundamental divides about which rights “count,” and if and how those divides should be bridged. Simply engineering a different court or judicial process cannot ameliorate Russia’s contentious relationship with the ECHR. Instead, as we can learn from Reza Afshari’s long history of grappling with these inconsistencies in the international human rights regime, the problem runs much deeper than institutional design; they cannot be easily resolved. In his 2007 Human Rights Quarterly article titled “On Historiography of Human Rights,” Afshari begins with an observation about a related fundamental inconsistency in the historiography of the international human rights regime. He writes: One of the main issues that the current historiography has to grapple with is the apparent disparity between the often-celebrated normative global achievements in codifying human rights values among the UN member states and the often-lamented failures to enforce them. . . . I argue that the link should not be seen as mechanical or procedural. Weaknesses so obviously apparent in the enforcement process signify the lack of vigor in the normative consensus; the vim and vigor by which the face was adorned by high-flying colors might in fact have masked a frail body.2 This pattern of inconsistency is visible across a wide range of issue areas, from women’s rights to economic justice, and in diverse political contexts, from Iran to the United States. Examining the disjuncture between “often-celebrated” international human rights judicial instruments and their “often-lamented” enforcement and cooperation failures can give scholars and practitioners alike a clear view of the tensions that Afshari describes. II. UNVEILING THE DIVISIONS IN THE INTERNATIONAL HUMAN RIGHTS JUSTICE REGIME As Afshari reminds us, high levels of state membership and participation in international human rights and criminal tribunals sometimes mask deep divisions among their members over both the meaning of human rights and their understanding of how human rights disputes should be resolved. This is, in essence, illustrative of variations in states’ levels of commitment to [End Page 191] international human rights institutions, as well as the basic norms under-girding them. As part of an in-progress book project, I examine four extreme manifestations of these variations in states’ normative and political commitments to international human rights tribunals: 1) member states’ withdrawing, or threatening to withdraw, from the courts; 2) member states and political elites’ undermining and usurping legal cases; 3) stakeholders’ imposing financial restrictions on the tribunals; and 4) both members and non-members’ creating alternatives to the tribunals. In each of these circumstances, while contenders are calling into question the form and function of the tribunals, they are also casting doubt on the underlying norms themselves. For example, Venezuela’s withdrawal from the Inter-American Court of Human Rights in 2012 and the Organization of American States in 2017 cannot simply be dismissed as the consequences of a state’s displeasure with the international human rights system.3 Instead, it calls into question the principles of universality, compulsory jurisdiction, and the ability of international human rights laws and norms to protect individuals’ rights when the going gets...

The article explores the main problems of the application by the national courts of the case law of the European Court of Human Rights as a source of law. Analyzing the rules of the law and examining the views of the Supreme Court have highlighted the problematic issues of the obligation to apply the case law of the European Court of Human Rights to national courts as a source of law. The researchers' positions on the obligation of national courts to apply the case law of the European Court of Human Rights in cases against other states are examined and the importance of the application of the case law of the European Court of Human Rights is highlighted. Analyzing the views of scholars and experts, we have proposed ways to address the issues of the binding application of the case law of the European Court of Human Rights by reviewing the plenary sessions of high courts. The problems of the application of the case law of the European Court of Human Rights by national courts, such as the selective application of the case law of the Court, references to general principles and interpretations, ignoring the conditions of their application, absolutization of the binding position of the Court, application of the decisions of the Court by analogy, reference to the practice Court in the presence of clear and consistent provisions of national law, etc. The following ways of solving these problems are proposed: 1) revising the concept and content of the Law of Ukraine "On the implementation of decisions and application of the practice of the European Court of Human Rights" and amending the legislation in order to bring it in line with the provisions of the new procedural legislation and modern ideas of theorists and practitioners about the legal nature of decisions The European Court of Human Rights; 2) preparing a resolution of the Plenum of the Supreme Court on the application of the Convention and the case-law of the Court, which should be based on a thorough analysis of the shortcomings and peculiarities of the case-law of the national courts. The problematic issues of the application of the case law of the European Court of Human Rights in the absence of official translations of the Court's decisions are examined. Analyzing the views of scholars and experts, we have proposed ways to solve these problems by creating a single electronic database that will contain official translations of Court decisions in the Ukrainian language that will ensure their accessibility and dissemination.

This chapter analyses the legal protection available to vulnerable groups and their members under the European Convention on Human Rights (ECHR), and in particular the vulnerability paradigm of the European Court of Human Rights. It traces the development of the concept of ‘vulnerable groups’ and its use in the case law of the Court and identifies the main groups of persons systematically considered by the Court as vulnerable.When discussing the case law of the European Court of Human Rights, two groups of cases are covered. First, the chapter identifies key cases with respect to specific vulnerable groups, and secondly the most recent cases are analysed to reveal the latest trends. For this purpose, to establish how often ‘vulnerable groups’ appear on the agenda of the European Court of Human Rights, case law research was performed. The time frame chosen was the last five years starting from 1 January 2016 and ending 31 December 2020. After identification of all the cases, 37 most relevant cases were chosen and scrutinised in more detail. In this way, the chapter seeks to offer the reader a contextual analysis of the notion of vulnerable groups in European human rights law and sets out the framework for further chapters of the book.KeywordsVulnerable groupsVulnerabilityConcept of ‘vulnerable groups’Vulnerable groups in the European Court of Human Rights case lawVulnerability in ECHR

In its recent jurisprudence on domestic violence, the European Court of Human Rights started to examine the domestic violence cases in the light of relevant international human rights law developed in this specific area. This article examines the engagement of the European Court of Human Rights with other international and regional human rights instruments in domestic violence cases. Upon examination, the article concludes that by integrating its case law into international human rights law the European Court of Human Rights broadens the scope of protection for domestic violence victims and maintains the unity of international law.

In international human rights law, the notion of due diligence concerns a qualifier of behaviour to realize human rights protection, including the protection against non-state actor interferences. However, the question remains what due diligence obligations of states in the context of non-state actor interferences exactly entail in international human rights law. The present article aims to address this matter by comparing case law of the European Court of Human Rights (ECtHR) with that of the Inter-American Court of Human Rights (IACtHR). Using a working model of due diligence that has been introduced in recent scholarly work, this article further explores this model and attempts to give further meaning to its two paradigms: ‘regulation’ and ‘risk management’. In that way, it maps out the relevant elements of this foundational concept that lies at the heart of human rights protection.

The article deals with the ways of regarding the case law of the European Court of Human Rights as a source of criminal procedural law of Ukraine, which is relevant both in terms of the criminal procedure as a science and for the practice of law enforcement. The purpose of the article is to formulate the concept of the case law of the European Court of Human Rights as a source of criminal procedural law of Ukraine. The paper justifies the opinion that the case law of the European Court of Human Rights is developed and based on the decisions of the European Court of Human Rights and the European Commission of Human Rights, regardless of the country in which they were adopted (i. e. has a polyterritorial jurisdiction over states being the participants of the Convention). The article proves that the case law of the European Court of Human Rights is draws upon the decisions made by the European Court of Human Rights and the European Commission of Human Rights regardless of the time of adoption, i. e. it includes the decisions adopted before Ukraine ratified the Convention for the Protection of Human Rights and Fundamental Freedoms. The author points out the appropriateness of classifying decisions that have acquired the status of final as «case law of the European Court of Human Rights». It is also mentioned that there is a need to include final decisions in the case (as the matter of fact), which have a decisive nature and contain a legal position in this case, into the scope of the category «case law of the European Court of Human Rights». Moreover, the article substantiates the necessity to include the decisions adopted by the European Court of Human Rights in full, i. e. not only the set forth legal positions, into the category of «case law of the European Court of Human Rights». Following the results of the study, the case law of the European Court of Human Rights as a source of criminal procedural law of Ukraine is defined as a set of decisions adopted by the European Court of Human Rights and the European Commission of Human Rights, which have entered into force and contain legal policies which either clarify or specify the provisions of the Convention as for the Protection of Human Rights and Fundamental Freedoms and relate to human and citizen’s rights and freedoms.

Since its first judgment on the merits in 2013, the African Court of Human and Peoples’ Rights (the African Court or ACtHPR) jurisprudence has bourgeoned. In building this jurisprudence, the African Court has borrowed significantly from the case law of the European Court of Human Rights and the Inter-American Court of Human Rights. This article empirically maps judicial borrowing in the jurisprudence of the African Court and connects this practice to the theoretical framing of the semantic authority of interpretive actors in international law. The article argues that judicial borrowing allows the African Court to borrow the semantic authority of these more established actors in the field of international human rights law. The practice has allowed the Court to boost its interpretive claims. The article posits that the Court is simultaneously internalizing external references: it transforms them into an internal part of its jurisprudence. Therefore, the African Court is transforming what was initially the semantic authority of its homologues in Strasbourg and San José, into assertions of its own semantic authority. This transformation allows the Court to assert itself as the central authority for the interpretation of human rights in Africa. These findings shed new light onto wider scholarly debates on the characteristics of African human rights jurisprudence in the field of international human rights law.

Stereotyping has definitely appeared on the radar of the European Court of Human Rights (ECtHR, the Court or the Strasbourg Court). In several recent rulings, notably the Grand Chamber judgments of Konstantin Markin v Russia and Aksu v Turkey , the Court has taken issue with gender-based and race-based stereotypes. Konstantin Markin concerned Russia's refusal to grant parental leave to a military serviceman. This is an important ruling, because the Court held that the state could not rely on gender stereotypes to justify differences in treatment between men and women under Article 14 of the European Convention on Human Rights (ECHR). Aksu concerned government-sponsored publications, which included derogatory stereotypes about Roma. The importance of this judgment, as seen from an anti-stereotyping perspective, is that the Court explicitly recognises that stereotyping can negatively impact the right to private life (Article 8 ECHR). In this chapter, rather than comprehensively analysing and critiquing the ways in which the Strasbourg Court addresses (and fails to address) stereotypes, we zoom in on the Court's case law regarding domestic violence against women. In a volume dedicated to exploring the ways in which stereotyping is a human rights issue, violence against women (VAW) – and specifically domestic violence against women – is a particularly salient and thorny issue. International human rights law – as will be discussed further below – recognises that there are close links between pervasive gender stereotyping and VAW. The issue remains surprisingly under-examined in the ECtHR literature, however. This chapter argues that the Court should address gender stereotyping in domestic violence cases and in that respect follow international human rights law. That is not to say that we think the Strasbourg Court can eliminate gender stereotypes. We think of the Court as one actor in a larger effort directed against the harmful gender stereotypes underpinning domestic violence. This effort is organised on many fronts, both legal and non-legal (such as via media, education and politics). Yet the only way the Court can play its role, this chapter further argues, is by carefully crafting legal reasoning that names and contests stereotypes. In naming gender stereotypes, the Court will be addressing one of the factors that structurally contributes to domestic violence and ineffective state responses.

The article examines some aspects of realization of the rule of law principle in the case law of the European Court of Human Rights. The author notes that the principle of the rule of law is a fundamental component of international legal acts regulating human rights and fundamental freedoms. It is emphasized that the Constitution of Ukraine proclaims that the principle of the rule of law is recognized and operates in Ukraine, but the concept of the rule of law itself is not fully disclosed in national legislation. The principle of the rule of law is actually the only effective means of ensuring the inviolability of democracy. The separate elements of this principle as its integral parts and mandatory prerequisites through which the European Court of Human Rights reveals the content of the rule of law was considered. The author provides examples of grouping certain requirements of the rule of law in the case law of the European Court of Human Rights. The author notes that there are no unified approaches to understanding the exact meaning of the rule of law principle either in theory or in practice. The author substantiates that the elements of the rule of law in the case law of the European Court of Human Rights are legality, legal certainty, fairness of a trial and priority of human rights. The main element of the rule of law in the case law of the European Court of Human Rights is legality. The requirement of legality has formal (procedural) and substantive aspects (requirements for the quality of the law). It is noted that the requirement to respect human rights and recognize their priority is key in the case law of the European Court of Human Rights. Cases of human rights restrictions must comply with the principle of proportionality. The provisions of the documents of the Venice Commission on the understanding of principle of the rule are analyzed, the activity of the European Court of Human Rights in ensuring the principle of the rule of law in the process of protection of human rights and freedoms is studied. The author concludes that the case law of the European Court of Human Rights is the basis for understanding the essence of the rule of law as a principle. The author emphasizes that the case law of the European Court of Human Rights has a positive impact on the indicators of strengthening the rule of law in the state, and contributes to the improvement of each individual element of this principle and all of them in aggregate.

Among international and hybrid criminal tribunals, the Extraordinary Chambers in the Courts of Cambodia (ECCC) is one of the few that include a reparation system for victims of crimes under its jurisdiction. This article analyses how and to what extent the ECCC has used international human rights law (IHRL) to interpret and apply reparation provisions of the ECCC legal instruments. The ECCC has largely relied on IHRL sources, particularly, the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, case-law of the Inter-American Court of Human Rights and case-law of the European Court of Human Rights. However, such use has been adapted to the legal framework of the ECCC. Unlike human rights courts, the ECCC determines individual criminal liability and, thus, can only order reparations against convicted individuals.

The article raises and examines the problem of the possibility of Russia’s participation in one of the future regional international human rights courts, which has matured after the termination of the Russian Federation's membership in the European Court of Human Rights. The author considers the following options: the Court of Human Rights in the Commonwealth of Independent States, the Court of Human Rights of the Union State of Belarus – Russia, the Asian Court of Human Rights (on the legal platform of the Association of Asian Constitutional Courts and Equivalent Institutions), etc. Being sure that Russia cannot be a member of two or more international human rights courts at the same time, the author justifies the need for States intending to create an International Human Rights Court to develop and adopt an appropriate international human rights act. Only by focusing and relying on this act, the International Court of Human Rights will be able to determine whether the rights of a person who has applied to the Court have been violated and make an appropriate ruling.