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The European Court of Human Rights

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The European Court of Human Rights

Current Challenges in Historical Perspective

9781839108334 Edward Elgar Publishing
Edited by Helmut Philipp Aust, Professor of Law, Freie Universität Berlin and Esra Demir-Gürsel, Georg Forster Postdoctoral Research Fellow, Faculty of Law, Humboldt-Universität zu Berlin, Germany
Publication Date: April 2021 ISBN: 978 1 83910 833 4 Extent: c 296 pp
This insightful book considers how the European Court of Human Rights (ECHR) is faced with numerous challenges which emanate from authoritarian and populist tendencies arising across its member states. It argues that it is now time to reassess how the ECHR responds to such challenges to the protection of human rights in the light of its historical origins.

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Critical Acclaim
Contributors
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This insightful book considers how the European Court of Human Rights (ECHR) is faced with numerous challenges which emanate from authoritarian and populist tendencies arising across its member states. It argues that it is now time to reassess how the ECHR responds to such challenges to the protection of human rights in the light of its historical origins.

Written by a group of established and emerging experts from diverse backgrounds, this book offers a fresh perspective on the questions and challenges facing the ECHR, bringing together different, and thus far isolated, strands of academic and political debate. Contributions combine historiographical insights with explorations of the current and pressing need for the ECHR to find a role for itself, especially in an environment where there is increased scepticism towards the idea of human rights protection. In particular, the critical conception of the Convention as an ‘alarm bell mechanism’ is examined and assessed in relation to its original goal to prevent authoritarian backsliding.

The European Court of Human Rights: Current Challenges in Historical Perspective will be an important source of reference to academic researchers and students with an interest in human rights, international law and the law and politics of international organisations. It will also appeal to policymakers and legal practitioners due to its examination of pertinent legal and political issues that challenge international organisations.

Critical Acclaim
‘An original, unique and fundamental contribution to the widespread debate on the very idea of an international system for protecting human rights that directly affects the European Court of Human Rights, “the conscience of Europe”. In revisiting history from a contemporary perspective, this work provides an outstanding critical analysis of the Court’s alarm bell function in the most sensitive areas of human rights. An illuminating book in which the past enlightens the present. A must-read for everyone in the field.’
– Françoise Tulkens, Former Vice-President of the European Court of Human Rights

‘In what ways can the study of history inform current debates about the European Court of Human Rights? Uniting some of the academy’s most thoughtful writers on the European Court, this volume explores the uses, misuses and insights of history in analyzing both the Court’s jurisprudence and its evermore contested political role. The volume provides depth to current debates and will speak to lawyers, legal scholars, and historians of Europe alike.’
– Alexandra Huneeus, University of Wisconsin-Madison, US

Contributors
Contributors include: H.P. Aust, B. Baade, M. Breuer, B. Çalı, E. Demir-Gürsel, M. Duranti, P. Feihle, A. Gliszczyńska-Grabias, K. Hatas, D. Kurban, M.R. Madsen, Y. Shany
Contents
Contents:

1 Introduction: The European Court of Human Rights 1
Helmut Philipp Aust

PART I CURRENT CHALLENGES OF THE COURT
2 From boom to backlash? The European Court of Human
Rights and the transformation of Europe 21
Mikael Rask Madsen
3 Principled resistance to the European Court of Human
Rights and its case law: a comparative assessment 43
Marten Breuer
4 Can Strasbourg be replicated at a global level? A view
from Geneva 71
Yuval Shany

PART II HISTORICAL PERSPECTIVES ON CURRENT
CHALLENGES: THE DRAFTING HISTORY IN
CONTEXT
5 The European Convention on Human Rights and postwar
history: why origins matter 90
Marco Duranti
6 For the sake of unity: the drafting history of the European
Convention on Human Rights and its current relevance 109
Esra Demir-Gürsel
7 Asylum and immigration under the European Convention
on Human Rights – an exclusive universality? 133
Prisca Feihle

PART III HISTORIES AS CASES AND IN THE CASES
8 History as an afterthought: the (re)discovery of Article 18
in the case law of the European Court of Human Rights 158
Bașak Çalı and Kristina Hatas
9 Rethinking effectiveness: authoritarianism, state violence
and the limits of the European Court of Human Rights 177
Dilek Kurban
10 ‘Never Again’ as a cornerstone of the Strasbourg system:
the traces of the Holocaust in the jurisprudence of the
European Court of Human Rights 200
Aleksandra Gliszczyńska-Grabias
11 Historical truth before the European Court of Human Rights 221
Björnstjern Baade
12 The limits of the European Court of Human Rights
vis-à-vis contestation and authoritarianism: concluding
observations 244
Esra Demir-Gürsel

Index

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