Shaping rights in the ECHR : the role of the European Court of Human Rights in determining the scope of human rights

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Where to find it

Law Library — 1st Floor Collection (1st floor)

Call Number
KJC5138 .S53 2013
Status
Available

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Summary

In fundamental rights adjudication, a court first has to determine whether the interest at stake falls within the scope of the fundamental right invoked. Whether or not an individual interest falls within the scope or ambit of one of the fundamental rights protected by the European Convention on Human Rights determines whether or not the European Court of Human Rights can decide on the merits of a case. This volume brings together a variety of legal scholars in order to examine the scope of fundamental rights. Topics range from the nature of human rights and the real or imagined risk of rights inflation to theories of positive obligations and social and economic rights. It contains contributions of a theoretical nature as well as analytical overviews of the ECtHR's approach. In addition, comparisons are made with domestic, EU and international law.

Contents

  • List of contributors p. viii
  • Acknowledgements p. x
  • 1 Introduction p. 1 Janneke Gerards and Eva Brems
  • Part 1 Conceptual, structural and constitutional issues relating to the scope of rights
  • 2 Between the will of the Contracting Parties and the needs of today: extending the scope of Convention rights and freedoms beyond what could have been foreseen by the drafters of the ECHR p. 17 Alastair Mowbray
  • 3 The scope and balancing of rights: diagnostic or constitutive? p. 38 George Letsas
  • 4 Interpreting the protection guaranteed by two-stage rights in the European Convention on Human Rights: the case for wide interpretation p. 65 Gerhard Van Der Schyff
  • 5 The scope of ECHR rights and institutional concerns: the relationship between proliferation of rights and the case load of the ECtHR p. 84 Janneke Gerards
  • Part 2 Scope and more - developments in the case law of the ECtHR
  • 6 Defining the scope of economic and social guarantees in the case law of the ECtHR p. 109 Ingrid Leijten
  • 7 Procedural protection: an examination of procedural safeguards read into substantive Convention rights p. 137 Eva Brems
  • 8 The scope of rights and the scope of obligations: positive obligations p. 162 Laurens Lavrysen
  • 9 Contested contours: the limits of freedom of expression from an abuse of rights perspective - Articles 10 and 17 ECHR p. 183 Antoine Buyse
  • Part 3 360° Comparison
  • 10 Bottom-up shaping of rights: how the scope of human rights at the national level impacts upon Convention rights p. 211 Eirik Bjorge
  • 11 Old and new human rights in Europe: the scope of EU rights versus that of ECHR rights p. 232 Xavier Groussot and Eduardo Gill-Pedro
  • 12 European human rights as universal rights: in defence of a holistic understanding of human rights p. 259 Martin Scheinin
  • Part 4 A closer look at specific rights
  • 13 The 'absolute' prohibition of torture and inhuman or degrading treatment in Article 3 ECHR: truly a question of scope only? p. 273 Stijn Smet
  • 14 The right to a fair trial and its multiple manifestations: Article 6(1) ECHR p. 294 Paul Lemmens
  • 15 How the right to respect for private and family life, home and correspondence became the nursery in which new rights are born: Article 8 ECHR p. 315 Maris Burbergs
  • 16 Discrimination as a magnifying lens: scope and ambit under Article 14 and Protocol No. 12 p. 330 Oddný Mjöll Arnardóttir
  • Index p. 350

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