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3 results

Can the European Court of Human Rights Shape European Public Order?
  • Kanstantsin Dzehtsiarou
  • Published online:
    25 November 2021
    Print publication:
    02 December 2021
  • In this book, Kanstantsin Dzehtsiarou argues that, from the legal perspective, the formula 'European public order' is excessively vague and does not have an identifiable meaning; therefore, it should not be used by the European Court of Human Rights (ECtHR) in its reasoning. However, European public order can also be understood as an analytical concept which does not require a clearly defined content. In this sense, the ECtHR can impact European public order but cannot strategically shape it. The Court's impact is a by-product of individual cases which create a feedback loop with the contracting states. European public order is influenced as a result of interaction between the Court and the contracting parties. This book uses a wide range of sources and evidence to substantiate its core arguments: from a comprehensive analysis of the Court's case law to research interviews with the judges of the ECtHR.

  • Quasi-constitutional court of human rights for Europe? Comments on Geir Ulfstein

  • WOJCIECH SADURSKI
  • Journal:
    Global Constitutionalism / Volume 10 / Issue 1 / March 2021
    Published online by Cambridge University Press:
    15 April 2021, pp. 175-185

  • This short comment offers two additional arguments, missing from Geir Ulfstein’s account, which may bolster the case for constitutionalisation of the ECtHR. The first is about the ‘pilot judgments’ through which the Court addresses systemic deficits in national legal systems and thus ensures a minimal synchronisation of human rights protection throughout the CoE system. The second manifestation of constitutionalisation of the ECHR system is the increasing role of the ECtHR in the implementation of its own judgments. Ultimately, the legitimacy for the constitutional ambitions of Strasbourg Court should be located primarily in the argumentative resources of the court and in its pursuit of ‘public reason’.

  • 6 - Suspensive Decision-Making Authority: Deference as Deferral and Abstention

  • from Part II - Deference in the International Adjudication of Private Property Disputes
  • Esmé Shirlow, Australian National University, Canberra
  • Book:
    Judging at the Interface
    Published online:
    24 February 2021
    Print publication:
    18 February 2021, pp 129-152

  • Summary

    Rather than treating second-order reasons for deference as conclusive, the adjudicator could instead treat them as suspensive. Adjudicators adopt a suspensive view of domestic authority in the modes of deferral and abstention. Adjudicators adopting this view of authority refer to second order reasons for deference to justify not engaging with certain matters for a period of time (deferral) or at all (abstention). In both modes, domestic decisions are not endorsed. The adjudicator instead declines to exercise its own decision making authority in favour of the exercise of domestic decision-making authority. This is a form of ‘passive’ judicial participation. In these modes, deference is displayed by the adjudicator refraining from exercising its decision-making authority in preference to the decision-making authority of a domestic actor. The adjudicator does by declining to determine a dispute, or a particular matter in dispute, until a domestic decision maker has had an opportunity to make a decision relevant to the case (deferral) or at all (abstention).