Can Strasbourg be Replicated at a Global Level? A View from Geneva

Helmut Philipp Aust and Esra Demir-Gürsel (eds.), The European Court of Human Rights - Current Challenges in Historical and Comparative Perspective, Edward Elgar, 2020 Forthcoming

Hebrew University of Jerusalem Legal Research Paper No. 20-15

21 Pages Posted: 17 Jun 2020 Last revised: 24 Jun 2020

See all articles by Yuval Shany

Yuval Shany

Hebrew University of Jerusalem - Faculty of Law and Institute of Criminology; Israel Democracy Institute

Date Written: April 24, 2020

Abstract

How can one explain the fact that a relatively weak human rights monitoring body, the Human Rights Committee (HRCttee) is adopting, at times, bolder legal interpretations of international human rights law than the European Court of Human Rights (ECtHR) – the consummate international human rights court? And how can the Committee’s traditional aversion to the margin of appreciation doctrine be reconciled with the fact that it oversees a far more diverse group of states than the ECtHR? And finally, how does one explain the decision by a country to revise its laws following the issuance of the views of the HRCttee, despite the acceptance of the same laws by the ECtHR?

This Chapter seeks to provide some answers to these questions through allusion to the different historical and geopolitical context for the establishment and operation of the ECtHR and the HRCttee. In a nutshell, it argues that the ECtHR forms part of a European agenda of regional integration and democratization, which has no direct parallel at the global level, and that the said agenda influences the legal tools the Court applies and its self-role perception. At the same time, the HRCttee, like other UN treaty bodies, derive their legitimacy from other sources – especially from the notion of universality of international human rights – a notion with powerful symbolic value, which exerts on some states considerable compliance pull.

Keywords: human rights, european court of human rights, human rights committee, margin of appreication, compliance, regional integration, democracy, freedom of religion, abortion

JEL Classification: [k-30, k-33, k-41]

Suggested Citation

Shany, Yuval, Can Strasbourg be Replicated at a Global Level? A View from Geneva (April 24, 2020). Helmut Philipp Aust and Esra Demir-Gürsel (eds.), The European Court of Human Rights - Current Challenges in Historical and Comparative Perspective, Edward Elgar, 2020 Forthcoming, Hebrew University of Jerusalem Legal Research Paper No. 20-15, Available at SSRN: https://ssrn.com/abstract=3623788

Yuval Shany (Contact Author)

Hebrew University of Jerusalem - Faculty of Law and Institute of Criminology ( email )

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