Human Rights Imperialists

The Extraterritorial Application of the European Convention on Human Rights
Erscheinungsjahr 2020
ISBN: 978-1-5099-1473-9
Verlag: Hart Publishing

Buch, Englisch, 256 Seiten, Hardback, Format (B × H): 236 mm x 164 mm, Gewicht: 560 g

To what extent do a state's obligations under the European Convention on Human Rights apply beyond its territorial borders? Are soldiers deployed on overseas operations bound by the human rights commitments of their home state? What about other agents, like the police or diplomatic and consular services? If a state's obligations do apply abroad, are they to be upheld in full or should they be tailored to the situation at hand?

Few topics have posed more of a challenge for the European Court of Human Rights than this issue of the Convention's extraterritorial application. This book provides a novel understanding on why this is by looking at the behaviour of those principally tasked with interpreting the treaty: the Strasbourg Court, state parties, and national courts. It offers a theory for how these communities operate: what motivates, constrains and ultimately shapes their interpretive practices. Through a detailed analysis of the jurisprudence, with a particular focus on British authorities and judges during and after the Iraq War (2003), the book provides an explanation of how the interpretation of extraterritorial obligations has developed over time and how these obligations are currently understood. Some have argued that it is imperialistic to apply the Convention extraterritorially. If this is the case, the focus of this book is on those 'imperialists' who have interpreted European human rights law to extend beyond a state's borders, as it is with them that any lasting solution to the challenge will be found.

Autoren/Hrsg.

Mallory, Conall

Fachgebiete

• Sozialwissenschaften Politikwissenschaft Politische Kultur Menschenrechte, Bürgerrechte
• Rechtswissenschaften Internationales Recht und Europarecht Europarecht Europäisches Öffentliches Recht (inkl. EMRK)

Inhaltsverzeichnis

Introduction

I. The Extraterritorial Question

II. The Strasbourg Approach

III. The Claims of the Book

IV. The Structure of the Book

1. Creating Human Rights 'Jurisdiction'

I. Introduction

II. The Drafting of Article 1

III. The Problem with 'Jurisdiction'

IV. Creating Human Rights Jurisdiction

V. Conclusion

2. Interpreting the European Convention on Human Rights

I. Introduction

II. The Convention's Interpretive Parties

III. The 'Correct' Process of Interpretation

IV. Interpretive Communities

V. Article 1's Interpretive Communities

VI. Conclusion

3. Incremental Normalisation: The Strasbourg Approach 1953-2001

I. Introduction

II. The Point of Departure

III. Judicial Minimalism

IV. Enhanced Justification

V. Consideration of Context

VI. Conclusion

4. Deconstruction and Reconstruction: The European Court of Human Rights 2001-10

I. Introduction

II. Judicial Deconstruction: Bankovic v Belgium and Others

III. Judicial Reconstruction

IV. An Unsettled Community
5. The Contracting Parties: Competing for Meaning

I. Introduction

II. Applying the ECHR to Iraq

III. Three Categories of State Arguments

IV. State Acceptance of the Convention's Extraterritorial Application

V. Conclusion

6. National Courts: The Systemisation of 'Jurisdiction'

I. Introduction

II. The Five Bases of Jurisdiction

III. Conclusion

7. The European Court of Human Rights: Strategic (Re-)alignment

I. Introduction

II. Personal Jurisdiction: 'State Agent Authority and Control'

III. Spatial Jurisdiction

IV. Applying the Convention Abroad

V. Conclusion: Temporary Stability

8. A Return to the Drawing Board

I. Introduction

II. Guiding Principles

III. Conservative Options

IV. Progressive Options

V. A Proposal

VI. The Communities

VII. Conclusion

Conclusion: Human Rights Imperialists

Über Autor(innen)

Mallory, Conall
Conall Mallory is Senior Lecturer in Law at Queen's University Belfast, Ireland.

Conall Mallory is a Lecturer at Newcastle University Law School.