International Legal Sources on Human Rights: The Regional Level

Pustorino, Pietro

doi:10.1007/978-94-6265-563-8_4

Pietro Pustorino²

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Abstract

This chapter examines the regional international legal regimes in the field of human rights, with particular attention to the ECHR, the general functioning of the ECtHR and the mechanisms of individual and inter-State applications to the Strasbourg Court. It further analyses the means to ensure compliance with the general and individual measures adopted by the ECtHR towards States parties that have violated the ECHR. Finally, it examines the human rights conventions and control mechanisms established within the framework of the American, African, Arab and Asian systems, highlighting their strengths, shortcomings and prospects for development.

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Notes

1.
The Court’s functions in this regard are flanked, as will be seen, by the role still played by the CMCoE.
2.
See Article 26(1) ECHR. To which must be added those of the Sections of 9 to 10 judges, from which the actual members of the Committees and of the Chambers are chosen.
3.
See Article 27 ECHR.
4.
In the event that unanimity is not achieved, the case must be referred to the Chamber.
5.
See Article 28 ECHR.
6.
See Article 29 ECHR. In the event of a decision on admissibility by the Committee or the Chamber, the application—before the adoption of the judgment on the merits—is communicated to the government of the respondent State, which is required to respond to the questions posed by the Court with observations that are also sent to the applicant for possible clarifications.
7.
See Article 3 of the Protocol.
8.
See the decision of 18 February 2021, Grzęda v. Poland, appl. no. 43572/18, in which the Court relied on both the Brighton Declaration of 2012, in which the Contracting Parties to the ECHR unreservedly agreed to a collective policy of refraining from objecting to relinquishment pending the entry into force of Protocol No. 15, and the ratification by Poland and all other Contracting Parties of that same protocol.
9.
See Article 43 ECHR.
10.
For more on the issue of the abolition of the death penalty among the Contracting Parties to the ECHR, see Chap. 6, Sect. 6.2.5.
11.
See Article 267 of the Treaty on the Functioning of the European Union (“TFEU”).
12.
See Article 1(1) of the Protocol.
13.
See the judgment of 20 December 2019, para 5.6.4, which ruled out requiring an advisory opinion because of the clarity of ECtHR’s case law and the specific request of the parties to the dispute to issue a decision “before the end of 2019”. On the Urgenda case, see Chap. 12, Sect. 12.4.
14.
For the content of the opinion issued by the ECtHR on 10 April 2019, see Chap. 6, Sect. 6.3.2.
15.
For the content of that opinion, see Chap. 8, Sect. 8.3.
16.
See Articles 33–34 ECHR.
17.
Appl. nos. 55185/08 and others.
18.
In this regard, see the judgment of 10 July 2014 in Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania, appl. no. 47848/08, paras 104 ff., in relation to the violation of the right to life.
19.
On the link between the extension of the notion of indirect victim and the violation of one of the norms “les plus fondamentales du système de la Convention”, see the ECtHR’s judgment of 19 March 2020 in Fabris and Parziale v. Italy, appl. no. 41603/13, para 37.
20.
See appl. no. 50272/18, para 48.
21.
In the case of applications notified to the government of the respondent State, the lack of prior exhaustion of domestic remedies must be specifically raised by the State, whereas, in the earlier stages of judicial proceedings, the Court may proceed of its own motion, declaring the actions inadmissible on the ground that this condition of admissibility has not been met.
22.
These additional conditions of admissibility can be raised by the Court of its own motion.
23.
See appl. no. 41994/21.
24.
With the entry into force of Protocol No. 15, the fact that the case in question was not adequately examined at the national level was eliminated as a further exception to the application of the de minimis criterion.
25.
On this issue, see the statements of the ECtHR (Grand Chamber) in its decision of partial admissibility of 16 December 2020, Ukraine v. Russia (Re Crimea), appl. nos. 20958/14 and 38334/18, paras 363 ff.
26.
See the inadmissibility decision of the Grand Chamber of 18 November 2020, Slovenia v. Croatia, appl. no. 54155/16, paras 40–41.
27.
See Article 46(1) ECHR.
28.
For example, judgments concerning general and individual measures against the State held responsible for the violation of human rights have been adopted by the IACtHR.
29.
See appl. nos. 46827/99 and 46951/99.
30.
See para 11 of the judgment.
31.
See appl. nos. 39221/98 and 41963/98.
32.
Positions similar to those in the case law of Contracting Parties to the ECHR have been adopted with respect to the ACHR by the Colombian Constitutional Court. In its judgment of 16 July 2004 (C-500/14), para 8.3.2, that Court ruled that whether the IACtHR’s case law was uniform and well-settled (“uniforme y reiterada”) should be a criterion used in assessing the weight of IACtHR decisions in the context of judgments on constitutionality, a stance reiterated in its judgment of 22 June 2016 (327/16), Part VI.
33.
See judgment No. 49 of 26 March 2015 stating that the Italian courts are obliged to comply with ECtHR judgments solely if they constitute a well-settled interpretation or are “pilot judgments”: para 7 of the conclusions on points of law.
34.
Appl. nos. 1828/06 and 2 others, para 252 of the judgment.
35.
The importance of pilot judgments is confirmed by the fact that the procedure necessary for the adoption of these decisions is now contained in Article 61 of the Rules of Procedure of the Court.
36.
For a well-known case on the failure to implement general measures indicated to the State in a pilot judgment, see the Grand Chamber’s judgment of 12 October 2017 in Burmych and Others v. Ukraine, appl. no. 46852/13.
37.
On this point, see Chap. 6, Sect. 6.2.
38.
Appl. no. 28957/95.
39.
In this regard, see judgment of 11 October 2018 in S.V. v. Italy, appl. no. 55216/08.
40.
See appl. no. 43835/11.
41.
On recent developments in ECtHR case law on the subject of the Islamic headscarf, see Chap. 9, Sect. 9.2.1.
42.
Appl. no. 64846/11.
43.
See the judgment of 11 July 2017, Belcacemi and Oussar v. Belgium, appl. no. 37798/13, concerning, again, an Islamic headscarf.
44.
See the judgment of 14 March 2017 in Achbita, C-157/15.
45.
See Article 46(3) ECHR.
46.
See Article 46(4) ECHR.
47.
Appl. no. 15172/13.
48.
Appl. no. 15172/13.
49.
See Article 44 ACHR.
50.
Id., Article 45.
51.
Id., Articles 61–62.
52.
See Sect. 4.3.4.
53.
See Article 69 of the Rules of Procedure of the Court.
54.
See Article 65 ACHR.
55.
Recently, see the opinion of 9 November 2020, OC-26/20, on The Obligations in Matters of Human Rights of a State that has Denounced the American Convention on Human Rights and the Charter of the Organization of American States, para 14.
56.
Finally, at the request of certain OAS organs, the Court may also give advisory opinions concerning their activities; see Article 64, paras 1–2, ACHR.
57.
See Article 3(1) of the Protocol.
58.
Appl. no. 046/2016.
59.
See the judgment of the ACtHPRA of 27 November 2020, XYZ v. Republic of Benin, appl. no. 010/2020, para 48.
60.
See Article 28(1)(c) of the Statute of the ACtJHR.
61.
See Chap. 2, Sect. 2.5.
62.
See Article 48 of the Arab Charter.
63.
See Article 16 of the Statute.
64.
Id., Articles 19–20.
65.
See Chap. 2, Sect. 2.4.1.
66.
See points 35–38 of the Declaration.
67.
Id., paras 6 and 8.
68.
See Chap. 2, Sect. 2.4.

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Department of Law, Luiss University, Rome, Italy
Pietro Pustorino

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Pustorino, P. (2023). International Legal Sources on Human Rights: The Regional Level. In: Introduction to International Human Rights Law. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-563-8_4

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DOI: https://doi.org/10.1007/978-94-6265-563-8_4
Published: 01 January 2023
Publisher Name: T.M.C. Asser Press, The Hague
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