• From Grandrath to Bayatyan: the development of European jurisprudence on conscientious objection to military service

      Yiannaros, Andreas C. (Intersentia, 2017-03-31)
      The paper discusses the historical evolution of the legal right to conscientious objection to military service within the key institutions of the Council of Europe. It does so by examining the travaux preparatoire and legislative history of the European Convention on Human Rights, focusing on the intention of its drafters to incorporate into the scope of the treaty, a right to be exempted from military service on grounds of conscience. It further explores the activities of the Parliamentary Assembly and the Committee of Ministers of the Council of Europe in order to identify whether these bodies intended to expand the scope of the Convention to cover objections of conscience to the undertaking of military duties as a constituent element of Article 9 ECHR, protecting the right to freedom of thought, conscience and religion. Finally, the paper explores the European Court of Human Rights’ jurisprudence on the question of conscientious objection to military service and assesses the importance and impact of Bayatyan v Armenia, a landmark decision by the Grand Chamber of the European Court of Human Rights which finally placed objections of conscience to military service firmly within the scope of Article 9 of the European Convention on Human Rights.
    • Jaloud v Netherlands and Hassan v United Kingdom: time for a principled approach in the application of the ECHR to military action abroad

      Borelli, Silvia (2015-05)
      The aim of the present piece is not to undertake an examination of which of international human rights law (IHRL) and international humanitarian law (IHL) is ‘better’ or more appropriate to regulate the conduct of States in situations of armed conflict. Advocates of IHRL argue that it provides heightened protection for individuals, and that, by its own terms, it applies to, and is perfectly equipped to deal with situations of exception, including armed conflicts.[1] On the other hand, supporters of IHL focus on the need not to place unnecessary fetters upon the freedom of States to pursue their military objectives in situations of armed conflict, and argue that IHL provides an adequate level of protection, whilst being more pragmatic, better suited to the specificities of armed conflict and more likely to be observed by the parties to the conflict.[2] Insofar as they prioritise different values, proponents of the two opposing camps to a large extent talk past each other and the debate is therefore necessarily somewhat sterile.
    • Unlocking the first protocol: protection of property and the European Court of Human Rights

      Lang, Richard; University of Bedfordshire (N. P. Engel, Kehl am Rhein, 2008-12-31)
      This output makes an important contribution to an area where there is surprisingly little existing literature. Via a thorough analysis of the European Court of Human Rights’ jurisprudence on Article 1 of Protocol No 1 (the relevant provision), the piece offers a highly original take on the Court’s case-law on this subject, ending with an algorithm that, it is hoped, will aid practitioners embarking on a case involving the right to property. However, other academics should also find it of interest. With the Yukos case – reputedly the largest expropriation case in legal history - having had its first hearing only a few months ago, the topic will only grow in importance as time goes on. The author also points out some of the differences between Article 1 of Protocol No 1 and the right to property provision in the new EU Charter of Fundamental Rights, which only became legally binding in December 2009. As case-law based on the Charter starts to emerge from the Luxembourg Court (on terrorist asset-freezing, for example), again this topic is likely to gain prominence, with this output hopefully acting as a point of departure for future works by other scholars.