Judging International Human Rights. Courts of General Jurisdiction as Human Rights Courts

Judging International Human Rights
Preface
Contents
About the Contributors
Part I: General Introduction
Introduction
References
The International Court of Justice and Its Contribution to Human Rights Law
1 Introduction
2 References by the ICJ to Decisions of Human Rights Bodies
2.1 Introduction
2.2 An Evolving Approach to Case Law by Others
2.3 Conclusion
3 The Attitude of a General Court Toward the Position of the Individual
3.1 General Contribution by the ICJ
3.2 Diplomatic Protection or Human Rights Protection?
3.3 Extraterritorial Application of Human Rights Treaties and Armed Conflict
3.4 Provisional Measures Involving Human Beings
4 Conclusion
References
The Domestic Implementation of Judgments/Decisions of Courts and Other International Bodies That Involve International Human R...
1 Introduction
2 Work of the Committee
3 The Obligations of States Parties to Comply with Judgments or Decisions of Judicial or Quasi-Judicial International Bodies D...
3.1 The Legal Bases of the Obligation to Comply with Human Rights Decisions
3.2 Jurisprudence on the State Party´s Obligation to Comply with Adverse Human Rights Judgments and Decisions
3.2.1 Human Rights Courts
3.2.2 Quasi-Judicial Bodies
3.3 The Obligation to Comply with Jurisprudence in Matters of Human Rights When the State Was Not a Party to the Litigation
4 Contents of ``Good Faith´´ Compliance and ``Good´´ or ``Best Practice´´
4.1 ``Good Faith´´
4.2 ``Good Practices´´
5 Country-Based Case Studies
5.1 Argentina
5.2 Australia
5.3 Bangladesh
5.4 Brazil
5.5 Canada
5.6 China
5.7 Colombia
5.8 Denmark
5.9 France
5.10 Germany
5.11 India
5.12 Italy
5.13 Japan
5.14 Mexico
5.15 Netherlands
5.16 Russia
5.17 Slovenia
5.18 South Africa
5.19 United Kingdom
5.20 United States of America
6 Conclusions
References
Part II: International and Regional Courts of General Jurisdiction as Human Rights Courts
The International Court of Justice and Diplomatic Protection
1 Introduction
2 Individual Rights Recognized Under International Law Without International Means of Enforcement for Individuals
2.1 Traditional Views
2.2 Views Adopted by the ICJ in LaGrand and in Avena
3 Content of the International Responsibility of a State for Its Violation of Individual Rights Recognized Under International...
3.1 Legal Consequences of a Violation of Individual Rights Recognized Under International Law: General Principles
3.2 Legal Consequences of a Violation of Human Rights Recognized Under the Conventions: Principles Specific to Human Rights Law
3.3 Legal Consequences of a Violation of Individual Rights Recognized Under International Law in the Context of Inter-State Di...
3.3.1 Violation of Individual Rights and Non-pecuniary Remedies: LaGrand and Avena
3.3.2 Violation of Individual Rights and Pecuniary Remedies: ICJ Diallo and ECtHR Cyprus v Turkey
4 Invocation of State Responsibility by a State for the Violation of Individual Rights Recognized Under International Law
4.1 Invocation of the Responsibility by a State Whose Nationals´ Individual Rights Were Violated: Diplomatic Protection
4.2 Invocation of the Responsibility by a State Other Than an Injured State
5 Concluding Remarks
References
The International Court of Justice and Provisional Measures Involving the Fate of Persons
1 Introduction
2 Provisional Measures and General Interest Obligations
2.1 Introduction
2.2 Non-aggravation of the Dispute: Environment, Peace, Human Rights
2.3 Recommendations to the Parties in the Interest of Peaceful Settlement
2.4 2007 Onward: Less Interest in the General Interest, Or Simply a More Cautious Approach?
3 The Binding Nature of ICJ´s Provisional Measures
4 The ICJ´s Approach to Traditional Aspects of Provisional Measures in Cases Involving the Fate of Individuals
4.1 Introduction
4.2 Prima Facie (Lack of) Jurisdiction on the Merits?
4.3 No Overlap with the Main Claim
4.4 A Relation to the Main Claim: The Link Requirement
4.5 Meeting Procedural Requirements
5 A Stricter Approach: Demanding Evidence of Plausibility
6 Follow-Up by the ICJ on Its Orders for Provisional Measures
7 Conclusion
References
The European Court of Justice and Human Rights Law
1 Introduction
2 The ECJ, Constitutional Courts, and the ECHR
2.1 Fundamental Rights in EU Law
2.1.1 Colliding Claims to Supremacy: The European Union and National Constitutional Courts
2.1.2 The Role of the ECHR and the ECtHR in ECJ Case Law
The Impact of the ECHR on the Development of EU Fundamental Rights
Binding Effect
2.1.3 Conflicts of Jurisdiction: The Example of Germany
The Constitutional Court and Fundamental Rights of the EU
The ECtHR and Domestic Constitutional Law
2.1.4 Interim Conclusions
2.2 The EU Under the ECHR?
2.2.1 Jurisdiction of the ECtHR Over EU Matters
2.2.2 Accession of the European Union to the ECHR
The Draft Accession Agreement
Potential Consequences of Accession
The ECJ Opinion
3 The ECJ and Other Human Rights Treaties
4 Conclusions
References
Courts of Regional Economic Communities in Latin America and Human Rights Law
1 Introduction
2 Courts and Tribunals of Regional Economic Communities and Human Rights
3 Human Rights in MERCOSUR Dispute Settlement
3.1 Human Rights in the MERCOSUR System
3.2 Pulp Mills, Bridges, and the Right to Protest
4 UNASUR: Human Rights as Part of a Development Agenda
5 Concluding Remarks
References
Courts of Regional Economic Communities in Africa and Human Rights Law
1 Introduction
2 Contested Foundation for Human Rights Protection?
2.1 Fundamental Principles as Treaty Foundation for Human Rights
2.2 Formalising Protection: Translating Fundamental Principles Into Competence and Jurisdiction
3 Direct and Indirect Paths to Rights Protection
3.1 Rights Qua Rule of Law Before the East African Court of Justice
3.2 Rights Qua Human Rights Before the ECOWAS Court
4 Consequences of Differing Paths
4.1 Approaches to Interpretation
4.2 The Use of Global and Regional Human Rights Treaties in the REC Courts
4.3 Formulation of Remedies
5 Conclusion
References
Part III: Obligations Imposed by Human Rights Treaties with Regard to the Implementation of Human Rights by Domestic Courts
State Obligations Under Universal Human Rights Treaties
1 Introduction
2 Initial Difference in Implementation
3 General Approaches to Implementation
4 Roles of UN Treaty Bodies in Monitoring Compliance by States Parties
5 The Obligations of States Parties and the Domestication of the International Norms
6 Obligations Imposed on Domestic Courts Concerning the Implementation of Human Rights Arising from the ICCPR
7 Concluding Remarks
References
State Obligations in the European System
1 Introduction
2 Obligations of the ECHR Member States According to the Jurisprudence of the ECtHR
3 The Court´s Implied Powers and Protocol No. 14 to the ECHR
4 Joint Powers of the ECtHR and the Committee of Ministers to Supervise the Execution
5 Conclusions
References
State Obligations in the Inter-American System
1 Introduction
2 The First Judgment of the Inter-American Court: Velasquez Rodriguez v Honduras (July 29, 1988)
2.1 To Respect and Ensure: The State´s Obligation to Prevent, Investigate, Prosecute, Punish, and Repair Human Rights Violatio...
2.2 The Obligation to Comply with the Inter-American Court´s Judgments
2.3 Obligations of States Parties to the American Convention with Regard to Situations of Impunity
2.3.1 Amnesty Laws
Barrios Altos v Peru (March 14, 2001)
La Cantuta v Peru Case (November 29, 2006)
2.3.2 Evolution of the ``Control of Conventionality´´ Doctrine
Almonacid-Arellano et al. v Chile (September 26, 2006)
Gomes Lund and Others (Guerrilha do Araguaia) v Brasil, (Judgment of November 24, 2010)
Cabrera-Garcia and Montiel-Flores v Mexico (November 26, 2010)
3 Conclusion and Outlook
References
State Obligations in the African System
1 Introduction
2 The General Concept of State Obligations Under the African Charter
2.1 The Commission´s Approach to State Obligations Under the African Charter
2.2 The Court´s Approach to State Obligations Under the African Charter
3 States´ Obligations to Investigate, Prosecute and Punish Violations of Rights Under the African Charter
3.1 Due Diligence and the Duty to Investigate, Prosecute and Punish
3.1.1 The Commission´s Approach to the Duty to Investigate, Prosecute and Punish
3.1.2 The Commission: Due Diligence Beyond the Obligation to Investigate, Prosecute and Punish
3.1.3 The Commission: Due Diligence and the Admissibility of Communications
3.1.4 The Court´s Approach to the Duty to Investigate, Prosecute and Punish
3.1.5 The Court: Due Diligence and the Admissibility of Communications
3.2 Due Diligence in Commission Recommendations and Court Orders
3.2.1 The Commission´s Approach to Recommendations and Due Diligence
3.2.2 The Court´s Approach to Orders and Due Diligence
4 The Commission´s and Court´s Roles in Determining Violations of Other International Treaties
4.1 The Commission´s Approach to Determining Violations of Other International Treaties
4.2 The Court´s Approach to Determining Violations of Other International Treaties Than the African Charter
5 Conclusion
References
Part IV: The Role of Courts in the Domestic Implementation of International Human Rights
General Overview
1 Introduction
2 International Human Rights Courts and Other Supervisory Treaty Bodies: Obligations of Compliance with Rulings and Findings
2.1 International Human Rights Courts and Other Monitoring Treaty Bodies: Due Compliance by States Parties and Interpretative ...
2.1.1 The European Court of Human Rights
2.1.2 The American Commission of Human Rights and the Inter-American Court of Human Rights
2.1.3 The African Commission and the African Court on Human and Peoples´ Rights
2.1.4 Supervision Under the Arab Charter on Human Rights
2.2 ``Control of Conventionality´´
2.3 Supervision of Compliance with Judicial Decisions
2.4 Dynamic Interpretation as a Major Challenge to Implementation
2.4.1 Human Rights Treaties as ``Living Instruments´´ and Interpretation Driven by Judicial Activism
2.4.2 The Dilemma for Domestic Courts
3 Human Rights Standards Developed by the International Court of Justice and Other Universal Dispute Settlement Bodies
4 Nonbinding Standards: The UN Declaration on the Rights of Indigenous Peoples
5 Decisions of National Courts
5.1 Decisions of the International Court of Justice and National Courts
5.1.1 Deferential Approach with Nuances: The Case of Germany
5.1.2 ``Respectful Consideration´´: The US Supreme Court
5.2 Supervisory Bodies Under Universal Human Rights Treaties and National Courts
5.3 Regional Human Rights Systems
5.3.1 European Convention on Human Rights
The European Union
Germany
United Kingdom
France
Austria
Russia
Switzerland
The Impact of the Case Law of the European Court of Human Rights in Non-Convention States
5.3.2 Inter-American Convention on Human Rights
5.3.3 African Charter on Human and Peoples´ Rights
5.3.4 Other Regional Conventions
Southern African Development Community
The Arab Charter on Human Rights
6 Other National Institutions
6.1 National Contact Points
6.2 National Human Rights Institutions
6.2.1 The Paris Principles
6.2.2 NHRIs and International Organizations and Treaties
6.2.3 Example: South African Human Rights Commission
7 Conclusions
References
Argentina and Mexico
1 Introduction
2 The Jurisprudence of the Inter-American Court of Human Rights
2.1 Control of Conventionality
2.2 The State´s Obligation to Prevent, Investigate, Punish, and Repair
3 Argentina, Its Constitution, and the Case Law on Amnesty Laws
3.1 Reform of the Argentine Constitution (1994)
3.2 Status of Human Rights Treaties in Other Latin American States
3.3 Amnesty Laws, the Inter-American Court in Barrios Altos v Peru (2001), and the Argentine Supreme Court in Simon (2005)
3.4 Subsequent Inter-American Jurisprudence on Amnesties
4 Mexico, Its Constitution, and the Inappropriate Use of Military Jurisdiction for Human Rights Crimes
4.1 Background of the Radilla Pacheco Case
4.2 Mexican Law on Military Jurisdiction
4.3 The Reform of the Mexican Constitution with Regard to Human Rights
4.4 Resolution of the Mexican Supreme Court Calling on the Judiciary to Carry Out an Ex Officio Control of Conventionality (Ju...
4.5 Supreme Court: Transfer to Civilian Jurisdiction (2012); Congress: Military Reform Decree (2015)
4.6 Mexican Supreme Court: Inter-American Court Jurisprudence Binding on All Mexican Judges (2014)
5 Conclusion
References
Brazil
1 Introduction
2 Brazil and International Human Rights: Internal Application
2.1 Executive Branch
2.2 Legislative Branch
2.3 Judicial Branch
3 Brazil and the Inter-American System
4 Conclusion
References
Cambodia
1 Introduction
2 Status of International Human Rights Treaties Under Cambodian Constitutional Law
3 Cambodian Human Rights Bodies and Court System
3.1 Human Rights Bodies
3.2 Court System
3.3 Cases
4 Extraordinary Chambers in the Courts of Cambodia
4.1 Structure and Effectiveness of the ECCC
4.2 Reference to International Human Rights in the Tribunal´s Work
5 Concluding Remarks
References
Denmark
1 Introduction
2 Implementation of Human Rights
2.1 Legislative Implementation
2.1.1 Incorporation of the ECHR
2.1.2 Other Legislation Based on Human Rights
2.2 Judicial Implementation
2.2.1 Interpretation
2.2.2 Judicial Self-Restraint
2.2.3 Interpretation of the ECHR
3 Institutional Protection
3.1 Parliamentary Ombudsman
3.2 National Human Rights Institution
3.3 Refugee Appeals Board
3.4 Immigration Appeals Board
3.5 Equality Appeals Board
4 Conclusion
References
France
1 Introduction
2 Express References
2.1 Express Reference to the Authority and Legal Effects of International Decisions on Human Rights
2.1.1 The Res Interpretata of International Decisions on Human Rights
2.1.2 The Res Judicata of International Decisions on Human Rights
2.2 Express Reference to Individual International Decisions on Human Rights
3 Implicit References
3.1 Implicit Convergences
3.1.1 The Case of the ECtHR
3.1.2 The Case of the UN Human Rights Committee and of the European Committee on Social Rights
3.2 Implicit Divergences
4 Conclusion
References
Germany
1 Introduction
2 German Courts and the Internalisation of International Human Rights
2.1 The Incomplete Entrenchment of Human Rights in the Basic Law
2.2 The Judiciary´s Initial Failure to Take Human Rights Seriously
2.3 The Completion of the `Human Rights Revolution´ in Lüth
2.3.1 Impunity for a Crime Against Humanity
2.3.2 Re-establishing Trust in the Trustees of International Human Rights
2.4 The Federal Constitutional Court as an International Human Rights Court
3 German Courts and the Rise of Treaty-Based Human Rights Protection
3.1 Princess Caroline and the Federal Constitutional Court´s Loss of Exclusive Guardianship of International Human Rights
3.2 Görgülü: The Federal Constitutional Court Reasserts Control Over International Human Rights
3.2.1 Establishing Itself as the Ultimate Domestic Guardian of the European Convention on Human Rights
3.2.2 Claiming the `Last Word´ in the Dialogue with the European Court of Human Rights
3.2.3 Transforming the Duty to Abide by Judgments of the European Court of Human Rights into a Duty to Take into Account
3.3 Exercising `Joint Responsibility´ in a Constructive Dialogue
4 Summary and Conclusion
References
Italy
1 Introduction
2 ECtHR Judgments Involving Italy
3 Responses to ECtHR Case Law by the Italian Legislator
4 Responses to ECtHR Case Law by the Italian Judiciary
5 Concluding Remarks
References
Japan
1 Introduction
2 Brief History: Forming Legal Substrata and Waves of Internationalization
3 Basic Framework: Promoting and Hindering Factors for International Human Rights
3.1 Three Main Issues in Framing a System to Implement Human Rights Treaties in the Domestic Legal Order
3.2 The Issue of ``Direct Applicability´´ or ``Self-Executing Treaty´´
4 Widespread Practice in the Use of International Human Rights Law in Domestic Courts
4.1 The General Situation
4.1.1 Significance of International-Law-Friendly Interpretation or Indirect Application
4.1.2 Main Cases
Nibutani Dam Case (1997)
The Nationality Act Case (2008)
The Statutory Share in Inheritance of Children Born Out of Wedlock Case (2013)
4.2 The Specific Situation: Human Rights Protection in the Private Sphere
4.2.1 Unique Problems in the Private Sphere
4.2.2 Doctrines
4.2.3 Main Cases
Otaru Public Bath Case (2002)
Kyoto Hate Speech Case (2013, 2014)
5 Conclusion
References
Kenya
1 Introduction
2 Context
2.1 Institutional and Normative
2.2 Historical
2.3 Textual
3 Practical Usage
3.1 `African´ Regional Human Rights Norms
3.2 Global Human Rights Norms
3.2.1 CEDAW
3.2.2 UDHR
3.2.3 ICCPR
3.2.4 ICESCR
3.3 International Human Rights Norms: A General Survey of Jurisprudence
3.3.1 UN Human Rights Bodies
3.3.2 African Commission on Human and Peoples´ Rights
3.3.3 East African Court of Justice
3.3.4 European Court of Human Rights
4 Conclusion
References
Slovenia
1 Introduction
2 The Right to Judicial Protection and the Right to the Equal Protection of Rights in Civil Proceedings
3 The Right to an Impartial Tribunal
4 Basic Procedural Safeguards in Criminal Proceedings
5 The Right to Personal Liberty
6 The Right to the Protection of Personal Data
7 The Freedom of Expression and Artistic Endeavour
8 The Right to Effective Protection of Human Rights
9 Conclusion
References
United States of America
1 Introduction
2 Sosa
3 Medellin
4 International Human Rights Law in General
5 Conclusion
References
ILA Johannesburg Guidelines
The Obligations of a State and Its Domestic Courts with Respect to a Decision Issued by an International Judicial or Quasi-Jud...
Table of Cases
International Courts, Arbitral Tribunals and Treaty Bodies
Committee Against Torture
Human Rights Committee
Inter-State Arbitration
International Court of Justice
International Criminal Court
International Tribunal on the Law of the Sea
Investor-State Arbitration
Permanent Court of International Justice
Regional Courts and Treaty Bodies
Africa
African Commission on Human and Peoples´ Rights
African Court on Human and Peoples´ Rights
East African Court of Justice
ECOWAS Court
Regional Courts and Treaty Bodies
The Americas
Caribbean Court of Justice
Inter-American Commission on Human Rights
Inter-American Court of Human Rights
MERCOSUR (Ad hoc) Tribunals
MERCOSUR Permanent Revision Tribunal
Regional Courts and Treaty Bodies
Europe
European Commission on Human Rights
European Court of Human Rights
European Court of Justice
National Jurisdictions
Argentina
Corte Suprema de Justicia (Supreme Court)
Australia
High Court of Australia
Federal Court of Australia
New South Wales Court of Appeals
New South Wales Superannuation Complaints Tribunal
Austria
Verfassungsgerichtshof (Constitutional Court)
Bangladesh
Supreme Court of Bangladesh
Belize
Supreme Court of Belize
Benin
Constitutional Court of Benin
Botswana
Court of Appeal
Brazil
Supremo Tribunal Federal (Federal Supreme Court)
Canada
Supreme Court of Canada
Ontario Court of Appeals
Canadian Human Rights Tribunal
Cambodia
Extraordinary Chambers in the Courts of Cambodia
Kratie Provincial Court, Prosecution Department
Phnom Penh Municipal Court, Prosecution Department
Colombia
Corte Constitucional de Colombia (Constitutional Court of Colombia)
Costa Rica
Supreme Court of Justice of Costa Rica, Constitutional Chamber
Czech Republic
Ústavni Soud (Constitutional Court)
Denmark
Højesteret (Supreme Court)
Dominican Republic
Tribunal Constitucional de República Dominicana (Constitutional Court)
El Salvador
Corte Suprema de Justicia (Supreme Court)
France
Conseil constitutionnel (Constitutional Council)
Conseil d´État (Council of State)
Cour de cassation (Court of Cassation)
Cour d´Appel de Nouméa (Court of Appeal of Nouméa)
Cour de révision et de réexamen (Court of re-examination)
Germany
Bundesverfassungsgericht (Federal Constitutional Court)
Bundesgerichtshof (Federal Court of Justice)
Bundesverwaltungsgericht (Federal Administrative Court)
Landgericht (Regional Court) Hamburg
Ghana
Supreme Court of Ghana
Greece
Symvoulio Epikrateias (Council of State)
India
Supreme Court of India
Ireland
Supreme Court of Ireland
Italy
Corte costituzionale (Constitutional Court)
Corte Suprema di Cassazione (Supreme Court of Cassation)
Japan
Supreme Court
Osaka High Court
Takamatsu High Court
Tokyo High Court
Kyoto District Court
Sapporo District Court
Shizuoka District Court
Tokyo District Court
Kenya
Court of Appeal at Eldoret
Court of Appeal at Malindi
Court of Appeal at Nairobi
High Court at Embu
High Court of Kakamega
High Court at Kisumu
High Court at Kitale
High Court at Meru
High Court at Mombasa
High Court at Nakuru
High Court at Nairobi
Employment and Labour Relations Court at Nairobi
Environment and Land Court at Nakuru
Industrial Court at Nairobi
Lesotho
Court of Appeal
Lithuania
Konstitucinio Teismo (Constitutional Court)
Mexico
Suprema Corte de Justicia de la Nación (Supreme Court of Justice)
Netherlands
Hoge Raad (Supreme Court)
New Zealand
High Court New Zealand
Peru
Tribunal Constitucional (Constitutional Tribunal)
Poland
Trybunal Konstytucyjny (Constitutional Tribunal)
Russian Federation
Constitutional Court of the Russian Federation
Slovenia
Ustavno Sodisče Republike Slovenije (Constitutional Court)
South Africa
Constitutional Court
Supreme Court of Appeal
Spain
Tribunal Constitucional de España (Constitutional Court)
Sweden
Högsta Domstolen (Supreme Court)
Switzerland
Bundesgericht (Federal Tribunal)
United Kingdom
Supreme Court
House of Lords
United States
United States Supreme Court
United States Court of Appeals, 7th Circuit
Supreme Court of California
Supreme Court of Massachusetts
Supreme Court of Nevada
Venezuela
Tribunal Supremo de Justicia (Supreme Court)
Index