The European Court of Human Rights and its Discontents
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The European Court of Human Rights and its Discontents

Turning Criticism into Strength

Edited by Spyridon Flogaitis, Tom Zwart and Julie Fraser

The European Court of Human Rights has long been part of the most advanced human rights regime in the world. However, the Court has increasingly drawn criticism, with questions raised about its legitimacy and backlog of cases. This book for the first time brings together the critics of the Court and its proponents to debate these issues. The result is a collection which reflects balanced perspectives on the Court’s successes and challenges.
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Chapter 6: Challenges facing the European Court of Human Rights: Fragmentation of the international order, division in Europe and the right to individual petition

Turning Criticism into Strength

Lucian Bojin


Besides mere criticism, it is certain that the European Court of Human Rights (‘ECtHR’ or ‘the Court’) currently faces real challenges. Rather than focusing on the criticism, this chapter addresses three of the pressing and fundamental challenges facing the Court: I) the fragmentation and defragmentation of the international order; II) the differences between Eastern and Western Europe; and III) the costs and benefits of the individual right to petition. Two cases are often referred to as illustrations of the extraterritorial effects of the ECtHR’s jurisdiction: MSS v. Belgium and Greece and Othman v. The United Kingdom. In these cases, the Court conferred extraterritoriality to Articles 3 and 6 of the European Convention on Human Rights (‘ECHR’ or ‘the Convention’), when determining the responsibility of the respondent States in relation to events that occurred — or could occur – outside their territory. This extraterritoriality is not new in extradition or expulsion cases before the Court. While more than two decades have passed since the seminal decision in Soering, the concept appears to have proliferated recently at the ECtHR. In Othman v. The United Kingdom the Court extended the extra-territorial effect of Article 3 ECHR – which was, in a sense, already common – to Article 6 ECHR for the first time. This should come as no surprise as once the principle was deemed applicable to and indeed appropriate in extradition or expulsion cases, its extension from Article 3 to other Convention norms was only a matter of time.

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