Turning Criticism into Strength
Edited by Spyridon Flogaitis, Tom Zwart and Julie Fraser
Chapter 6: Challenges facing the European Court of Human Rights: Fragmentation of the international order, division in Europe and the right to individual petition
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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