This book deals with urgency and human rights. 'Urgent' is a word often used, in very different contexts. Yet together with a reference to human rights violations, it likely triggers images of people caught up in armed conflict, facing terror from either the state, gangs, paramilitaries, or terrorists. Or of people fleeing terror and facing walls, fences or seas, at risk of being returned to terror, or ignored, neglected, abused, deprived of access to justice and basic facilities, facing death, torture and cruel treatment. Here these both ongoing and expected violations are explored in the context of (quasi-)judicial proceedings as international tribunals and domestic courts are increasingly called upon to order interim measures or accelerate proceedings in such cases.
This edited volume concerns the protective potential of interim measures in international human rights cases and the legitimacy of their use and discusses obstacles to their persuasive use, to clarify how their legitimacy and protective potential could be enhanced in the context of concrete legal cases. Examining this is especially pressing when courts and quasi-judicial bodies have used interim measures in response to requests by individuals and organisations in the context of issues that are unpopular with governments and/or controversial within society, which has led states to at times employ political pressure to limit their use.
Urgency and human rights are discussed from the vantage point of various practitioners and scholars, with the aim of identifying how interim measures could be legitimate and protective and to single out obstacles to their implementation. Drawing from practices developed in various international and regional adjudicatory systems, the contributors provide their perspectives on the legitimacy and/or the protective potential of interim measures and other (quasi-)judicial proceedings in urgent human rights cases.
There is considerable discussion about how interim measures can be legitimate and well-functioning tools to address urgent human rights cases, this book aims to contribute to the ongoing discussion in this respect.
Author(s): Eva Rieter, Karin Zwaan
Publisher: T.M.C. Asser Press
Year: 2021
Language: English
Pages: 319
City: Berlin
Preface
Contents
Contributors
1 Introduction: Perspectives on the Protective Potential of Interim Measures in Human Rights Cases and the Legitimacy of Their Use
1.1 Contended Interim Measures: Time and Urgency
1.2 Legitimate Use of Interim Measures
1.3 The Protective Potential of Interim Measures
1.4 Protection Gaps and Obstacles in the Face of Urgency
1.5 Existing Literature and the Approach Taken in This Book
1.6 The Contributions by Scholars and Practitioners
References
2 Urgency and Human Rights: The Necessary and Legitimate Role of Regional Human Rights Tribunals
2.1 Introduction
2.2 Legal Authority
2.3 The Rights Violations That Trigger Urgent Action
2.4 Procedural Issues
2.5 Legal Consequences When Urgent Measures Are Indicated
2.6 Conclusions
References
3 Urgency and Human Rights in EU Law: Procedures Before the Court of Justice of the EU
3.1 Introduction
3.2 Provisional Legal Protection
3.2.1 Interim Measures in the General Court and the CJEU
3.2.2 Interim Measures in the General Court
3.2.3 Interim Measures in the Court of Justice
3.2.4 EU Law and Provisional Legal Protection before National Courts
3.3 The Preliminary Procedure—‘Normal’, Urgent and Expedited
3.3.1 Preliminary Ruling Procedure
3.3.2 The Urgent Preliminary Procedure (PPU)
3.3.3 The Expedited Procedure (PPA)
3.4 Conclusions
References
4 The Politics of Interim Measures in International Human Rights Law
4.1 Introduction
4.2 Legal Basis for the Binding Force of Interim Measures
4.3 Legal Challenges to the Obligation to Comply with Interim Measures
4.4 Challenges to Interim Measures at Inter-Governmental Level
4.4.1 European Convention System: Interim Measures and the Interlaken Reform Process
4.4.2 Precautionary Measures and the Process of ‘Strengthening’ the IACHR
4.4.3 Interim Measures in UN Optional Protocol Negotiations
4.5 Conclusions: Ensuring Practical and Effective Protection
References
5 Provisional Measures in the African Human Rights System: Lingering Questions of Legitimacy
5.1 Introduction
5.2 The Legal Foundations for Provisional Measures in the AHRS
5.3 Urgency, Extreme Gravity and Irreparable Harm in the African Human Rights System
5.3.1 The African Commission
5.3.2 The African Court
5.4 (Non-)Compliance and the Legitimacy Question
5.5 Strategies for Improving Compliance with Provisional Measures in the AHRS
5.6 Conclusion
References
6 The Legitimacy of Interim Measures from the Perspective of a State: The Example of Canada
6.1 Introduction
6.2 The Continuing Currency of the Issue
6.3 Canada’s Long-Standing Objection Concerning Interim Measures Requests
6.4 The Legal Basis for Interim Measures Requests
6.5 Canada Uses Its Domestic Law and Domestic Courts to Bolster Its Position
6.6 The Entrenchment of the Domestic Legal Position
6.7 Turning to International Change to Encourage State Compliance
6.8 Conclusion
References
7 Urgency in Expulsion Cases Before the European Court of Human Rights and the UN-Committees: A Bird’s Eye View
7.1 Introduction
7.2 Protection Against Expulsion Before the ECtHR; Urgency and Reasoning
7.2.1 Risk of Inhuman and Degrading Treatment (Ill-Treatment) for Political, Ethnic or Religious Reasons
7.2.2 Risk of Ill-Treatment Related to Sexual Orientation
7.2.3 Risk of Stoning for Adultery/Family Vengeance
7.2.4 Risk of Being Subjected to Female Genital Mutilation (FGM)
7.2.5 Risk of Social Exclusion
7.2.6 Risk of Sexual Exploitation
7.2.7 Expulsion Cases with a Risk to Health (Medical Element)
7.3 Protection Against Expulsion Before the UN Committees; Urgency and Reasoning
7.3.1 Risk of Torture, Inhuman and Degrading Treatment for Political, Ethnic or Religious Reasons (Including Forced Confessions)
7.3.2 Risk of Ill-Treatment Related to Sexual Orientation
7.3.3 Risk of Stoning for Adultery/Family Vengeance
7.3.4 Risk of Being Subjected to FGM
7.3.5 Risk to Health (Medical Element)
7.3.6 Risks for a Child’s Well-Being
7.4 Case Study: Gender-Related Human Rights Infringements: Female Genital Mutilation
7.4.1 Introduction
7.4.2 Urgency and Reasoning
7.4.3 Does the Forum Matter?
7.5 Conclusion
References
8 Irreparable Harm in the Ukraine Conflict: Protection Gaps and Interim Measures
8.1 Introduction
8.2 Irreparable Harm from Human Rights Abuses in Eastern Ukraine
8.2.1 Outbreak of Conflict in Eastern Ukraine
8.2.2 Abduction, Torture and Other Ill-Treatment of Civilians
8.2.3 Unlawful Detention and Exchange of Civilian Hostages
8.3 Lack of Effective Remedies in Eastern Ukraine
8.3.1 Human Rights Under Ukraine’s Constitution and Legal Framework
8.3.2 Remedies Out of Reach in Ukraine’s Justice System
8.3.3 Duty of Due Diligence
8.3.4 International Criminal Court Jurisdiction in Ukraine
8.4 Interim Measures and Urgent Responses in the Ukraine Conflict
8.4.1 Interim Measures on Abuses in Eastern Ukraine
8.4.2 Interim Measures on Abuses in Crimea
8.5 Concluding Observations
References
9 Urgency at the European Court of Human Rights: New Directions and Future Prospects for the Interim Measures Mechanism?
9.1 Introduction
9.2 A Broader Scope?
9.3 State Resistance to Interim Measures
9.4 Verifying Compliance with Interim Measures
9.4.1 Access to Lawyers
9.4.2 The Well-Being of Detainees
9.5 Situations of Armed Conflict
9.6 Conclusion
References
10 The Innovative Potential of Provisional Measures Resolutions for Detainee Rights in Latin America Through Dialogue Between the Inter-American Court and Other Courts
10.1 Introduction
10.2 Applicable Human Rights Standards to Persons Deprived of Their Liberty in Latin America
10.3 Legal Basis of Provisional Measures in the Inter-American System
10.4 Detention Conditions of Persons Deprived of Their Liberty in Latin America Through the Lens of Provisional Measures
10.5 The Provisional Measures in the Case of the Instituto Penal Plácido de Sá Carvalho v. Brazil
10.6 Final Remarks
Reference
11 Conclusion: The Protective Potential and Legitimate Use of Interim Measures in Human Rights Cases
11.1 Introduction
11.2 Urgency Mechanisms Used by Regional and International (Quasi-)judicial Bodies
11.3 Mechanisms Obstructing the Protective Potential of Urgent Action Mechanisms by Adjudicators
11.3.1 Introduction
11.3.2 Domestic Sensitivities and Other Obstacles
11.3.3 Strategies of States in Response to Interim Measures
11.4 Measures Enhancing the Protective Potential of (Quasi-)judicial Urgent Action Mechanisms
11.4.1 Introduction
11.4.2 Responsiveness to Urgent Situations: Filling Gaps and Increasing Specificity
11.4.3 Increasing Legitimacy and Follow-Up
11.5 Criteria for Normative Legitimacy of Interim Measures
11.5.1 Introduction
11.5.2 Purpose and Legal Authority of Interim Measures
11.5.3 Fairness of the Procedure and Avoiding Prejudgment
11.5.4 Motivation of Interim Measures Decisions
11.5.5 Sufficiency of the Evidence and Staying within the Scope
11.6 Concluding Remarks
References
Table of Cases
Permanent Court of International Justice
International Court of Justice (ICJ)
Provisional Measures Orders
Judgments
International Tribunal for the Law of the Sea (ITLOS)
UN Human Rights Committee (HRCtee)
UN Committee against Torture (CAT)
UN Committee on the Elimination of Discrimination Against Women (CEDAW)
UN Committee on Economic, Social and Cultural Rights (ESC-Committee)
UN Committee on the Rights of the Child (CRC)
African Commission on Human and Peoples’ Rights (AComHPR)
African Court on Human and Peoples’ Rights (ACtHPR)
Orders for Provisional Measures
Judgments
Inter-American Commission on Human Rights (IACHR)
Inter-American Court of Human Rights (IACtHR)
Orders for Provisional Measures
Judgments
European Commission on Human Rights (ECHR)
European Court of Human Rights (ECtHR)
European Committee of Social Rights
European Union
Court of Justice of the European Union
Orders (PPU and Interim Measures Orders)
Judgments
Canada
Supreme Court of Canada (SCC)
Federal Court (FC)
Ontario Court of Appeal (ONCA)
Ontario Superior Court (ONSC)
Quebec Superior Court (QCCS)
United States of America (US)
US Supreme Court
Index
