This chapter argues that enforceable decisions by treaty bodies are central to ensuring that international human rights laws are respected domestically. Taking the UK as an example, this chapter compares the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR). The chapter demonstrates that the ECHR has been used increasingly by the UK’s courts to protect individuals’ rights, and that the courts have often engaged directly with European Court of Human Rights (ECtHR) decisions. By contrast, although the courts sometimes make limited use of the ICCPR, their approach and its outcome are inconsistent. A similar pattern is observed when the UK’s compliance with both instruments is assessed. Although this may stem from a range of factors, the importance of binding judgments of the ECtHR should not be underestimated: they allow domestic courts to engage directly with a treaty body, and also create a pressure to act. Looking beyond the UK, the chapter concludes that enforceable decisions by treaty bodies have a vital role in ensuring that international human rights laws are respected, and individuals’ rights are protected.

The introduction sets out the context, aims and approach of this book. It explains that over the past thirty years, the number of cases before the ECtHR concerning freedom of thought, conscience and religion has increased significantly and interest in this right in the literature has grown exponentially. It notes that ECtHR jurisprudence relating to ECHR Article 9 has been heavily criticised by commentators but there has been very little interrogation of the core premises that underpin doctrinal analyses of Article 9 in recent years. In particular, the fundamental question—what is the law in relation to freedom of religion or belief?—has not been fully explored. The introduction explains that this book aims to address this important question in relation to ECHR Article 9 and, in doing so, it challenges the classic approach to freedom of thought, conscience and religion in the literature and offers an alternative interpretation of ECHR Article 9 and the related ECtHR jurisprudence. The detailed overview of the structure of this book in the introduction details the approach which will be taken, and sets out the the materials which form the basis for the analysis.

Under what conditions can we expect international courts to be progressive? The introduction begins with a discussion of why it is compelling to answer this question by looking at the case of the European Court of Human Rights – a court that is not unambiguously progressive. It then lays out the theoretical and empirical foundations of the book, presenting the key concepts of forbearance and audacity – strategies that courts employ to adjust their sovereignty costs while maintaining a good institutional reputation. The theoretical framework explains why the Court needs to oscillate between forbearance and audacity, and how this oscillation has shaped the norm against torture and inhuman or degrading treatment. The empirical analysis, in its turn, combines social science methods and legal analysis to reveal the extent to which the Court has resorted to forbearance and audacity when interpreting the norm against torture and inhuman or degrading treatment, and how such episodes influenced the norm’s developmental trajectory. The introduction concludes by explaining the determinants of forbearance and audacity and putting forth the book’s key contributions to the existing debates.

A central criticism of power-sharing arrangements, and especially of their ethnic-corporate versions, is that they violate the basic principle of equality and nondiscrimination. The case of Sejdić and Finci v. Bosnia & Herzegovina, submitted in 2006 and delivered by the European Court of Human Rights (ECtHR) in 2009, vividly illustrates this problem. In this case, the ECtHR struck down central features of Bosnia and Herzegovina’s power-sharing arrangements on the grounds that they breached the right to nondiscrimination with regard to participation in elections for the legislature and presidency of Bosnia and Herzegovina. To better understand the legal analysis and normative assumptions underlying this prominent perception of power-sharing arrangements, and to explore its shortcomings that the concept of collective equality aims to address, this chapter presents the ECtHR rulings regarding Bosnia and Herzegovina’s constitutional arrangements and the criticisms raised against it. It shows how the legal framing portrays the conflict as another version of the peace versus justice debate, in which human rights obligations represent the demands of justice, while power-sharing arrangements represent the unavoidable, though regrettable (in terms of justice), price of peace. This legal appraisal, the chapter argues, avoids a central and crucial normative feature of the situation – the “elephant in the room” of national self-determination in multinational places.

This chapter evaluates what the international and European human rights frameworks can offer, in terms of standard setting and avenues for international legal development and protection, to those irregular migrants who experience either mental health difficulties or have a psychosocial disability. The analysis in this chapter extends the normative frames of references to encompass ‘disability’, which is reconceptualised in the Convention on the Rights of Persons with Disabilities as a transformative status and a human rights argument. This chapter triangulates human rights, public health and disability-sensitive arguments to assess the relations between mental health and human rights in the context of irregular migration in human rights law and jurisprudence. While the European Court of Human Rights’ deportation cases concerning people with mental health issues tend to reflect an overall emergency-oriented and predominantly biomedical approach to mental health, several UN human rights treaty bodies set out a more holistic conceptualisation of mental health and psychosocial disability. The latter approach promotes non-discriminatory psychosocial interventions to guarantee access to community-based mental health care services and the underlying determinants of mental health for everyone regardless of migration status.

This chapter builds on the structural and conceptual challenges outlined in the preceding chapters to describe, compare and analyse the international and European jurisprudence on the right to health care or medical care of undocumented people. The assessment uncovers several inconsistencies. While international human rights law elaborates, inter alia, on the concepts of ‘primary health care’ and non-discrimination of vulnerable people, including irregular migrants, in its scope of application, European human rights law entitles irregular migrants to a level of health protection that equates to ‘urgent’ or ‘life-saving’ treatments. Although international human rights bodies employ vulnerability and core and positive obligations to urge states to implement measures in this area of law and policy, the chapter recommends a more substantive-oriented approach to health care obligations by international bodies aligned to the accessible level of health care specified in the WHO recommendations on ‘primary health care’ and greater rigour and consistency in health-related terminology and legal arguments to increase persuasiveness. In both this and the following Chapter 4, special remarks are dedicated to irregular migrant children and to women’s access to reproductive services and care.

The chapter highlights the main legal arguments under the European Convention on Human Rights and in the jurisprudence in the European Court of Human Rights which resulted in the Menarini judgment declaring Italian competition law to be quasi-criminal and thereby enabling the effective protection of Article 6 of the ECHR. Both EU and Hungarian competition law are quasi-criminal – mainly – due to the increased level of fines imposed by the relevant competition authorities. Article 6 requires effective judicial review in the form of full review, which however is a question that is still not answered satisfactorily in both Hungarian and EU law. This chapter only focuses on the review of fines, where the practical judicial oversight is compatible with the de facto full review requirement of the Menarini judgment.

The introduction lays out the book’s aim as providing an investigation into the emancipation of the ECHR from an international agreement with a relatively weak enforcement structure into a sophisticated legal system. The introduction argues that researching supranationality under the Convention offers a fresh descriptive-analytical perspective on the ECHR as well as a deconstruction of the ECtHR’s authority. Carrying forward legal-institutional scholarship and studies on the domestification of the ECHR, it also introduces the idea of reviving the notion of Convention community. Lastly, the introduction provides an overview of the book’s structure and presents the line of argument and the methodology adopted in the different chapters.

This chapter examines the ECtHR’s supranational authority in detail analyzing the Court’s classical function of providing judicial review, its remedial practice as well as the new advisory jurisdiction as introduced by Protocol 16. Acknowledging that the ECHR system cannot be connected to a larger autonomous political unit, the claim is put forward is that the ECtHR nonetheless provides for a complementary layer of public authority which directly operates on individuals alongside that of domestic legal systems. The ECtHR enjoys a broad measure of autonomy over states and may circumvent the state veil by placing individuals under international protection or responsibilizing domestic authorities. The direct interaction with domestic actors not only represents part of the Court’s supranational authority but informs, at the same time, its legitimacy as the Convention community feeds on domestic actors, individuals especially, directly submitting their arguments to the Court.

The conclusion summarizes the supranational aspects of the ECHR and reflects on the wider narrative of supranationalization of the ECHR, including its driving factors and countertrends. It further demonstrates that growing resistance towards the ECtHR, as far as it goes beyond system inherent criticism, may partly be the result of increased openness and integration in the first place and could in fact lead to a refinement of Convention law. The ECHR’s supranational aspects also lend themselves to a communitarian perspective. The conclusion therefore argues that the findings of the study allow to give meaning to the notion of Convention community which is characterized by Convention rights as community interest norms, for the protection of which the ECtHR enjoys an inalienable core of autonomy, membership of domestic authorities and natural and legal persons as well as subsidiarity and moderated supremacy of Convention law as ordering principles.

Although any act of (international) judicial interpretation can be conceived of as lawmaking, judicial lawmaking under the Convention system is particularly extensive both in quality and quantity. Today, the text of the ECHR and its Protocols is merely the basis of a much larger notion of Convention law. This chapter discusses lawmaking understood as the general effect of Strasbourg case-law beyond the individual case. It analyzes the Court’s extensive lawmaking function from a Convention perspective and argues that ECHR lawmaking is uniquely supranational and integrative. The ECtHR resorts to a majoritarian approach to set a human rights standard, which may be (re-)imposed on states by virtue of the Court’s interpretative authority and states’ primary duty to secure Convention rights. The possibility of third-party interventions can be viewed as both an expression and justification of the Court’s lawmaking power and interpretative authority.

This chapter provides an introduction to investigating supranational aspects of the ECHR. It examines how the ECtHR gradually transformed from an international into a supranational court. A legal-historical perspective is adopted to analyze the (institutional) developments and reforms of the Convention system and re-visit some of the well-known classics of (early) Strasbourg case-law. While tracing the transformation from international to supranational adjudication overlaps with and confirms existing narratives of incremental de-politization, judicialization and individualization of the ECHR system, this chapter connects existing accounts on the institutional evolution of the Convention system to an overall narrative and a broader conceptual framework. It submits that, although supranational adjudication is primarily the result of Protocol 11 and thus rests on a formal choice and commitment of contracting states, the special nature of the Convention as a human rights treaty exercised a particular pull towards supranational adjudication. As a result, the Court and the Commission early on distinguished the collective protection system under the Convention from interstate and state-controlled adjudication by conceiving of themselves as adjudicators of a community.

The EU fundamental right to asylum, enshrined in Article 18 of the Charter, has always been a subject of scholarly debate. While some scholars have interpreted Article 18 as limited to a right to seek asylum, others have argued that it also confers an individual right to be granted asylum under certain conditions. Clarifying the scope and effects of the EU fundamental right to asylum is no longer of purely academic interest; courts across the EU are increasingly faced with complaints regarding its violation following the EU’s and Member States’ policy responses to the 2015 refugee crisis. The debate has been fuelled by the broad wording of the EU fundamental right to asylum, defined in relation to the rules of the Refugee Convention and EU Treaties. This chapter considers the scope of Article 18 of the Charter compared to the principle of non-refoulement guaranteed by the 1951 Refugee Convention; the extraterritorial application of the EU fundamental right to asylum and its content; and the main actors contributing to the normative clarification of the right to asylum. The chapter demonstrates the added value of the EU fundamental right to asylum as reflected in its various functions at EU and national levels.

This chapter argues that non-discrimination law can and should offer enhanced protection against legal ‘othering’ of foreign nationals in the EU. It starts from the premise that some states offer much better value, in terms of rights, resources, and ultimately life chances, than others. Once this unequal distribution is brought into the picture, it becomes clear that nationality functions as a mechanism of exclusion vis-à-vis nationals of ‘low value’ states (and stateless persons) whose access to rights and resources is limited both in countries of origin and in ‘high value’ states where they are not recognised as (full) members. Relying on recent theories of non-discrimination law that focus on stigmatisation as a root cause of discrimination, this chapter proposes to combine increased scrutiny of nationality as a stigma-carrying attribute with due regard for its legitimate function in maintaining viable political communities.