Mentally disordered offenders and the European Court of Human Rights

This article presents the findings from a study of cases taken to the European Court of Human Rights by mentally disordered offenders. The issues raised include the problems raised by indeterminate sentences, the use of detention for preventive purposes, and debates about treatment. The countries represented are Belgium, Norway, Poland, the Netherlands, Russia and the United Kingdom.

‘The Judiciary and Political Change in Africa: Developing Transitional Jurisprudence in Nigeria’

At a time of increased evaluations of law, human rights, and the rise of judicial power all over the globe, the work of most African judiciaries and the principles of the jurisprudence they espouse in promoting social justice remain an unlikely focus of comparative legal scholarship. This ought not to be so in view of the considerable activities of the courts on the continent in the dawn of the third wave of democratization. This article explores the work of the Nigerian Supreme Court in the political transition to democracy since 1999. Utilizing insights from the work of Ruti Teitel, it attempts to outline some of the major constitutional and extraconstitutional principles adopted by the Court in mediating intergovernmental contestations in the turbulent transition away from almost three decades of authoritarian military rule. It emerges that the task of fostering social transformation through the “weakest” branch seriously tasks the institutional integrity of the judiciary.

Absent Witnesses and the U.K. Supreme Court: Judicial Deference as Judicial Dialogue?

This article analyses the position of absent witness evidence under the UK Criminal Justice Act 2003 after significant European and domestic case law on the topic. It argues that flexibility in the hearsay regime under the 2003 Act and a permissive approach by appellate courts has increased the potential for fair trial violations in recent years. Moreover, the UK Supreme Court decision in R v Horncastle preserves domestic courts’ authority to determine the meaning of European rights and selectively defer to Parliament. This area of the law demonstrates the scope that the domestic system retains for divergence from European standards.

The European Court of Human Rights and Domestic Violence

Domestic violence is an issue that affects vast numbers of women throughout the world. It seems to constitute a clear violation of at least three articles of the European Convention on Human Rights, however it has only been recognised as being a human rights issue relatively recently. Indeed, until 2007 domestic violence had not been directly addressed by the European Court of Human Rights. However, the Court has now addressed the issue in a series of recent cases. This paper discusses what positive obligations states parties to the Convention now have in relation to the issue of domestic violence. It proceeds to discuss the gaps in the Court’s jurisprudence in this area at present and how the case law of the Court may develop in the future.

Multiculturalism, freedom of religion, equality, and the British constitution: The JFS case considered

In the JFS case, the Supreme Court of the United Kingdom held that the admissions policy of a Jewish faith school constituted unlawful racial discrimination because it used the Orthodox Jewish interpretation of who is Jewish as a criterion for determining admission to the school. A detailed discussion of the case is located in the context of two broader debates in Britain, which are characterized as constitutional in character or, at least, as possessing constitutional properties. The first is the debate concerning the treatment of minority groups, multiculturalism, and the changing perceptions in public policy of the role of race and religion in national life. It is suggested that this debate has become imbued with strong elements of what has been termed “post-multiculturalism”. The second debate is broader still, and pertains to shifting approaches to “constitutionalism” in Britain. It is suggested that, with the arrival of the European Convention on Human Rights and EU law, the U.K. has seen a shift from a pragmatic approach to constitutional thinking, in which legislative compromise played a key part, to the recognition of certain quasi-constitutional principles, allowing the judiciary greatly to expand its role in protecting individual rights while requiring the judges, at the same time, to articulate a principled basis for doing so. In both these debates, the principle of equality plays an important role. The JFS case is an important illustration of some of the implications of these developments.

Courts and Consociations:How human rights courts may destabilize power-sharing settlements

We consider the use of consociational arrangements to manage ethno-nationalist, ethno-linguistic, and ethno-religious conflicts, and their compatibility with non-discrimination and equality norms. Key questions include to what extent, if any, consociations conflict with the dictates of global justice and the liberal individualist preferences of international human rights institutions, and to what extent consociational power-sharing may be justified to preserve peace and the integrity of political settlements. In three critical cases, the European Court of Human Rights has considered equality challenges to important consociational practices, twice in Belgium and, most recently, in Sejdic and Finci, concerning the constitutional arrangements established for Bosnia Herzegovina under the Dayton Agreement. The Court’s recent decision in Sejdic and Finci has significantly altered the approach it previously took to judicial review of consociational arrangements in the Belgian cases. We seek to account for this change and assess its implications. We identify problematic aspects of the judgment and conclude that, although the Court’s decision indicates one possible trajectory of human rights courts’ reactions to consociations, this would be an unfortunate development because it leaves future negotiators in places riven by potential or manifest bloody ethnic conflicts with considerably less flexibility in reaching a settlement. That in turn may unintentionally contribute to sustaining such conflicts and make it more likely that advisors to negotiators will advise them to exclude regional and international courts from having standing in the management of political settlements.

Human Rights and the United Kingdom Supreme Court

After setting the scene by explaining the constraints which are placed on the Justices of the UK Supreme Court, this book considers how human rights are conceptualized by the Court in general and how in particular the procedural questions thrown up by the Human Rights Act have been dealt with so far. It then examines on a right-by-right basis the Justices' position on all the European Convention rights and some additional international human rights standards incorporated into UK law.

‘The “English Disease” is to Look for a “Solution of the Irish Problem”’: British Constitutional Policy in Northern Ireland after Sunningdale 1974–1976

This article reconstructs British constitutional policy in Northern Ireland after power-sharing collapsed in May 1974. Over the following two years, the British government publicly emphasised that Northern Ireland would decide its own future, but ministers secretly considered a range of options including withdrawal, integration and Dominion status. These discussions have been fundamentally misunderstood by previous authors, and this article shows that Harold Wilson did not seriously advocate withdrawal nor was policy as inconsistent as argued elsewhere. An historical approach, drawing from recently released archival material, shows that consociationalists such as Brendan O'Leary and Michael Kerr have neglected the proper context of government policy because of their commitment to a particular form of government, failing to recognise the constraints under which ministers operated. The British government remained committed to an internal devolved settlement including both communities but was unable to impose one.

The European Court of Human Rights and Domestic Violence: Valiuliene v Lithuania

This article analyses the recent jurisprudence of the European Court of Human Rights on the issue of domestic violence, with a particular focus on Valiuliene v Lithuania. It seems that to date the Court’s jurisprudence on this issue is somewhat inconsistent, and with Valiuliene v Lithuania the Court was given an opportunity to clarify its approach in this area. There are certainly a number of positive aspects to the Court’s judgment, however there are also difficulties with the approach of the Court in this case. Overall it is to be hoped that the judgment in Valiuliene v Lithuania will mark the beginning of a more coherent jurisprudence as regards domestic violence.

The EU Charter of Fundamental Rights in the case law of the European Court of Human Rights

The European Court of Human Rights has begun to refer to the EU Charter of Fundamental Rights in order to support its reasoning for interpreting the European Convention on Human Rights in a particular way. But the EU Charter does not yet have any special status in that regard, being treated by the Court as on a par with numerous other documents of international law. The Court’s use of the Charter began in connection with arts 8 and 12 of the Convention (the right to a family life and the right to marry) but in subsequent years it has been extended to many other Articles of the Convention. It is in relation to art.6 (the right to a fair trial) that the Charter’s influence has been most noticeable so far, the Court having changed its position on two important aspects of Article 6 partly because of the wording of the EU Charter. But the influence on art.3 (in relation to the rights of asylum seekers), art.7 (in relation to retroactive penal laws), art.9 (in relation to the right to conscientious objection) and art.11 (in relation to rights of trades unions) has also been significant. The potential for the Charter to have greater influence on the Court’s jurisprudence in years to come remains considerable.

Comparative International Human Rights Law

This chapter locates of international human rights in current discussion of comparative international law, and distinguishes comparative international human rights law from both the 'fragmentation' literature, and from comparative constitutional rights discourse.

Transnational Culture Wars

The well-known ‘culture wars’ clash in the United States between civil society actors has now gone transnational. Political science scholarship has long detailed how liberal human rights non-governmental organizations NGOs engage in extensive transnational activity in support of their ideals. More recently, US conservative groups (including faith-based NGOs) have begun to emulate these strategies, promoting their convictions by engaging in transnational advocacy. NGOs thus face off against each other politically across the globe. Less well known is the extent to which these culture wars are conducted in courts, using conflicting interpretations of human rights law. Many of the same protagonists, particularly NGOs that find themselves against each other in US courts, now find new litigation opportunities abroad in which to fight their battles. These developments, and their implications, are the focus of this article. In particular, the extent to which US faith-based NGOs have leveraged the experience gained transnationally to use international and foreign jurisprudence in interventions before the US Supreme Court is assessed.