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Consensus-Based Interpretation of Regional Human Rights Treaties de Francisco Pascual-Vives

Consensus-Based Interpretation of Regional Human Rights Treaties: International Studies in Human Rights, cartea 129

Autor Francisco Pascual-Vives
en Limba Engleză Hardback – 27 mar 2019
In Consensus-Based Interpretation of Regional Human Rights Treaties Francisco Pascual-Vives examines the central role played by the notion of consensus in the case law of the European and Inter-American Courts of Human Rights. As many other international courts and tribunals do, both regional human rights courts resort to this concept while undertaking an evolutive interpretation of the Rome Convention and the Pact of San José, respectively. The role exerted by the notion of consensus in this framework can be used not only to understand the evolving character of the rights and freedoms recognized by these international treaties, but also to reaffirm the international nature of these regional human rights courts.
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Specificații

ISBN-13: 9789004375529
ISBN-10: 900437552X
Pagini: 290
Dimensiuni: 155 x 235 mm
Greutate: 0.64 kg
Editura: Brill
Colecția Brill | Nijhoff
Seria International Studies in Human Rights

Cuprins

ForewordCarlos Jiménez PiernasAbbreviationsIntroduction1 Object2 Methodology and Sources of Knowledge3 StructurePART 1Theoretical Framework: Consensus, Sectorialization and SubsidiarityIntroduction to Part 11 The Notion of Consensus in Public International Law1 The Two-Fold Dimension of Consensus in Public International Law 2 A Focus on the Substantive Dimension of Consensus 2.1 International Court of Justice2.1.1 A Consensualist Approach before the International Court of Justice 2.1.2 Evidence of Customary International Law 2.1.3 Customary Rules of International Human Rights Law and International Humanitarian Law 2.2 Regional International Courts and Tribunals2.2.1 Court of Justice of the European Union 2.2.2 European Court of Human Rights 2.3 Sectorial International Courts and Tribunals2 The Challenges Arising from the Specialization and Sectoralization of Public International Law1 Coordination Tecniques: A Way to Navigate Through the System 2 Inter-Judicial Deference: An Antidote against Judicial Activism3 Subsidiarity as a General Principle in International Human Rights Law1 Conclusion of Regional Human Rights Treaties 2 Partial Suspension of Regional Human Rights Treaties 3 Enforcement of Judgments of Regional Human Rights Courts and TribunalsPART 2Consensus and Evolutive InterpretationIntroduction to Part 24 Evolutive Interpretation as a Method of Interpretation in Public International Law1 The Temporal Element and the Law of Treaties 1.1 The Works of the International Law Commission1.2 International Case Law Supporting the Principle of Contemporaneity2 Evolutive Interpretation and the Law of Treaties 3 Evolutive Interpretation in International Case Law 3.1 International Court of Justice3.2 Other International Courts and Tribunals3.3 Regional Human Rights Courts and Tribunals5 The Evolution of Regional Human Rights Treaties through the Notion of Consensus1 Tension between Sovereignty and Cooperation 1.1 The Role of the Principle of Sovereignty1.2 The Erosion of the Principle of Sovereignty1.2.1 Searching for Consensus beyond Regional Human Rights Subsystems 1.2.2 Searching for Consensus within Regional Human Rights Subsystems 1.2.2.1 A Constitutionalist Approach 1.2.2.2 A Consensualist Approach 2 Tension between Universalism and Regionalism 2.1 Evidence of Consensus by Reference to Universal Practice2.1.1 Participation in International Treaties as Evidence of a General Agreement 2.1.2 Non-Participation in International Treaties and the Principle of Systemic Integration 2.2 Evidence of Consensus by Reference to Regional Practice2.2.1 Practice of the Council of Europe 2.2.2 Practice of the European Union 2.2.3 Practice of the Organization of American States 3 Tension between International and Constitutional Jurisdictions 3.1 Reinforcing the International Character of Regional Human Rights Courts and Tribunals3.2 Guaranteeing the Unity of Public International Law and the Risks Posed by Judicial Activism3.2.1 The Double Instance as a Formula to Strengthen the Unity of Public International Law 3.2.2 A First Risk of Fragmentation: Judicial Activism and Evolutive Interpretation 3.2.3 A Second Risk of Fragmentation: Judicial Activism and the Jurisdiction of Regional Human Rights Courts and TribunalsPART 3Consensus and the National Margin of AppreciationIntroduction to Part 36 Scope of the National Margin of Appreciation1 The National Margin of Appreciation: An Indeterminate Concept 1.1 The Praetorian Origins of the National Margin of Appreciation1.2 The Complex Systematization of the National Margin of Appreciation2 The National Margin of Appreciation in International Case Law 2.1 International Court of Justice2.2 International Tribunal for the Law of the Sea2.3 Inter-State Arbitration2.4 Court of Justice of the European Union2.5 Investment Treaty Arbitration2.6 World Trade Organization Panels2.7 Preliminary Considerations: The National Margin of Appreciation as a Multifaceted Legal Concept3 The Expansion of the National Margin of Appreciation in Regional Human Rights Subsystems7 Intrinsic Circumstances Conditioning the National Margin of Appreciation1 Legal Nature of the International Obligation 1.1 Peremptory or Dispositive Nature of the International Obligation1.2 Positive or Negative Nature of the International Obligation2 Public or Private Dimension of the Interests at Hand 2.1 Enhancing the Protection of Public Interests2.2 Consequences of Conflicting or Overlapping Interests or Rights8 Consensus as an Extrinsic Circumstance Conditioning the National Margin of Appreciation1 Substantive Dimension of Consensus: The Backbone of Regional Human Rights Case Law 1.1 National Margin of Appreciation and Consensus Generalis 1.2 National Margin of Appreciation and the Absence of Consensus Generalis 1.2.1 Challenges Posed by an Evolutive Consensus: Right to Access to a Court and Jurisdictional Immunities 1.2.2 Respecting the Regulatory Power of the State in the Absence of Consensus: the Right to Express Religious Convictions, Neutrality and Secularism 2 Formal Dimension of Consensus: An Emerging Coordination Technique in Regional Human Rights Case LawFinal ConsiderationsBibliographyTable of Jurisprudence and Case LawTable of International TreatiesTable of AuthorsIndex

Notă biografică

Francisco Pascual-Vives, Ph.D., is Lecturer of Public international law (University of Alcalá). He focuses his research on the interplay between general international law and other legal sectors, such as European Union law, international investment law and human rights protection.