Realising political equality: the European Court of Human Rights and positive obligations in a democracy'

The European Convention on Human Rights (ECHR) speaks of the importance of an “effective political democracy” in its Preamble, though it is only in Article 3 of Protocol 1 (P1-3) that we find a right to free elections. This paper discusses the role of “positive obligations” under P1-3. This paper outlines the positive obligations in P1-3 focusing on obligations where the state is required to do more than just change the law. This may mean providing resources or facilities, adopting regulatory frameworks or creating new institutions. The paper highlights specific positive obligations that need to be further developed in the jurisprudence of the European Court of Human Rights (ECtHR). Sometimes these can be developed by analogy with positive obligations recognised in other areas of ECtHR jurisprudence. However, beyond these cases, states should ensure that members of vulnerable and disadvantaged minorities are able to participate in the electoral process and should ensure that dominant political groups cannot abuse their political power to exclude other parties unfairly. This is necessary to realise equal political rights. The second section of this paper sketches some preliminary points about the Strasbourg institutions’ approach to P1-3. After that, the third section identifies circumstances where the ECtHR should apply a more intense scrutiny in P1-3 cases. The fourth, fifth and sixth sections look at positive obligations relating to the right to vote, the right to run for election and the regulation of political parties.

The Victim Test under the Human Rights Act 1998 and its Implications for Domestic Violence Cases

The European Court of Human Rights has now clearly established that domestic violence constitutes a human rights issue. However, there are a number of difficulties involved in using the Human Rights Act 1998 in relation to violence against women in the home. One of these obstacles is the restrictive test of standing found in the Act, which is problematic as regards an ‘unseen crime’ such as domestic violence. This article examines this test of standing and the difficulties it poses in the context of violence against women in the home. It then considers alternative models for the standing requirement and assesses whether a change in the test of standing would produce beneficial results as regards the issue of domestic violence.

Human Rights in the Courts of Northern Ireland 2009-10

This article surveys and comments on the decisions issued on human rights points by courts in Northern Ireland during the legal year 2009-2010.

The Fundamental Rights Agency of the EU A New Panopticism

The Fundamental Rights Agency of the European Union (FRA) is the EU’s newest, and only, human rights institution. The FRA represents a new way of speaking about rights in the EU, using ‘governance’ language. It was not conceived as a traditional human rights monitoring body and the monitoring mission was actively abandoned in favour of an advisory one. This article examines how the FRA’s governance-related role actually reveals a type of monitoring best understood as ‘surveillance’ in a critical, Foucauldian sense. In exercising surveillance tactics, the FRA represents a model of panopticism which allows it to carry out a new form of government. This is an interesting observation not only because of the implications it has for an EU that is striving to move away from government towards governance, but also because it challenges the assumption of the FRA as a ‘beacon on fundamental rights’ and a model of apolitical progress.

Religion, Human Rights, Equality and the Public Sphere

This article distinguishes three different conceptions of the relationship between religion and the public sphere. The reconciliation of these different aspects of freedom of religion can be seen to give rise to considerable difficulties in practice, and the legal and political systems of several Western European countries are struggling to cope. Four recurring issues that arise in this context are identified and considered: what is a 'religion' and what are 'religious' beliefs and practices for the purposes of the protection of 'freedom of religion', together with the closely related issue of who decides these questions; what justification there is for a provision guaranteeing freedom of religion at all; which manifestations of religious association are so unacceptable as to take the association outside the protection of freedom of religion altogether; and what weight should be given to freedom of religion when this freedom stands opposed to other values. It is argued that the scope and meaning of human rights in this context is anything but settled and that this gives an opportunity to those who support a role for religion in public life to intervene.

Human Dignity and judicial Interpretation of Human Rights

The Universal Declaration on Human Rights was pivotal in popularizing the use of 'dignity' or 'human dignity' in human rights discourse. This article argues that the use of 'dignity', beyond a basic minimum core, does not provide a universalistic, principled basis for judicial decision-making in the human rights context, in the sense that there is little common understanding of what dignity requires substantively within or across jurisdictions. The meaning of dignity is therefore context-specific, varying significantly from jurisdiction to jurisdiction and (often) over time within particular jurisdictions. Indeed, instead of providing a basis for principled decision-making, dignity seems open to significant judicial manipulation. increasing rather than decreasing judicial discretion. That is one of its significant attractions to both judges and litigators alike. Dignity provides a convenient language for the adoption of substantive interpretations of human rights guarantees which appear to be intentionally, not just coincidentally. highly contingent on local circumstances. Despite that, however, I argue that the concept of 'human dignity' plays an important role in the development of human rights adjudication, not in providing an agreed content to human rights but in contributing to particular methods of human rights interpretation and adjudication.