Transitional Jurisprudence and the ECHR: Justice, Politics and Rights

2 Pages Posted: 11 Nov 2010

See all articles by Michael Hamilton

Michael Hamilton

University of East Anglia, School of Law; Central European University

Antoine Buyse

Utrecht University - School of Law; Utrecht University - School of Law; Netherlands Institute of Human Rights (SIM) ; Utrecht University - Faculty of Law

Date Written: November 11, 2010

Abstract

The jurisprudence of the permanent regional human rights courts in Europe, Africa and the Americas is profoundly shaping and enriching the law of transitional justice. This book is concerned with the role and contribution of these courts to refounding domestic rights commitments in societies emerging from conflict or authoritarian rule. Contributors from a variety of disciplinary backgrounds analyze the regional case law – primarily, that of the European Court of Human Rights – to illuminate the ways in which human rights norms obtain traction in situations where national legal institutions have either been complicit in, or powerless to halt, violations of core rights.

This ‘transitional jurisprudence’ includes scrutiny of rights violations occurring in the course of transition, but also rights violations directly caused by transition and measures introduced to manage the related socio-political and economic fallout. The chapters thus explore a diverse range of transitional narratives including claims related to freedom of religion, property rights, the right to free elections, freedom of expression, freedom from discrimination and the right to life.

Each of the regional human rights protection systems has responded to rights violations arising from protracted periods of systemic abuse. The canon of human rights jurisprudence has itself therefore been shaped by the challenges of confronting transitional problems. The book further shows how the judgments of these regional courts can catalyze reform at the national level, influence the strategies employed by domestic actors, and help settle contested histories.

‘Transition’ is not a trump card by which states can evade their human rights obligations. The European Court of Human Rights has developed a nuanced and forward-looking, though not always consistent, approach to transitional dilemmas. Amongst the factors it considers are the justice implications of the passage of time and the adequacy of institutional safeguards to limit the harms caused by exceptional transitional measures. Thus, despite the remoteness of these human rights courts in both time and space, this book demonstrates that the regional jurisprudence can exert a significant steer on the direction of transition processes.

Keywords: Transitional, Jurisprudence, ECHR

Suggested Citation

Hamilton, Michael and Buyse, Antoine, Transitional Jurisprudence and the ECHR: Justice, Politics and Rights (November 11, 2010). Transitional Justice Institute Research Paper No. 10-19. Available at SSRN: https://ssrn.com/abstract=1707491 or http://dx.doi.org/10.2139/ssrn.1707491

Michael Hamilton (Contact Author)

University of East Anglia, School of Law ( email )

Norwich NR4 7TJ, Norfolk
United Kingdom

Central European University ( email )

Nádor u. 9
Budapest, 1051
Hungary

Antoine Buyse

Utrecht University - School of Law ( email )

Utrecht University - School of Law ( email )

Netherlands Institute of Human Rights (SIM) ( email )

Achter sint Pieter 200
Utrecht, 3512 HT
Netherlands
+31.30.253.8510 (Phone)

HOME PAGE: http://https://www.uu.nl/staff/ACBuyse/0

Utrecht University - Faculty of Law ( email )

Achter sint Pieter 200
Utrecht, 3512 HT
Netherlands
+31.30.253.8510 (Phone)

HOME PAGE: http://https://www.uu.nl/staff/ACBuyse/0

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