Monday 11 November 2013

New ECHR Publications and Comments

Please find below the newest ECHR-related publications and case-law commentaries from a number of journals, blogs and other online resources:
* Erika de Wet, ‘From Kadi to Nada: Judicial Techniques Favoring Human Rights Over United Nations Security Council Sanctions’, Chinese Journal of International Law, vol. 12 (December 2013, forthcoming).

The contribution analyzes the implications of the Kadi decision of the European Court of Justice of 18 July 2013, as well as that of the Nada decision of the European Court of Human Rights of September 2013. Both decisions have given preference to human rights standards over United Nations Security Council sanctions stemming from the Resolution 1267 (1999) sanctions regime. However, they used very different techniques in coming to similar results, with implications for the effective enforcement of UNSC binding decisions and the unity of international law.

“Laicism” or “secularism” can be defined as a principle of neutrality of the state in which it must preserve freedom of conscience, equality and freedom of religion. These three rights must be framed in a clear and obvious distinction between state and religion. In this article we show how the principle of secularism in France is based on a universal concept against the way the ECHR based its action interpreted and applied secularism by repeated use of the doctrine of national margin of appreciation.

In the judgment Costa and Pavan v. Italy of 28th August 2012, No. 54270/10, the European Court of Human Rights (the Court) ruled that, by forbidding the recourse of couples carrying a genetic defect to medically assisted procreation and preimplantation screening, whilst simultaneously permitting abortion in cases where the foetus was suffering from such an illness, Italy had, due to this alleged inconsistency, violated Article 8 of the Convention – which guarantees the right to the respect of private and family life. Furthermore, it demonstrates the increasing willingness of the Court to limit the margin of appreciation the States possess in legislative matters, including in the most ethically controversial areas. This decision constitutes an important step in the recognition of a true right to a genetically healthy child; that is to say to eugenics; that the Court calls the “right [of the applicants] to bring a child into the world who is not affected by the illness that they carry” (§ 65).