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Signaalwoorden - [] The Case of Mamatkulov and Askarov v. Turkey

30 important questions on Signaalwoorden - [] The Case of Mamatkulov and Askarov v. Turkey

What was the reaction to the adoption of General Comment No. 24 by the Human Rights Committee?

Strongly worded adverse reactions from a number of States, including but not limited to the United States of America, followed the adoption of General Comment No. 24 by the Human Rights Committee.

What is the 'severability' approach in relation to invalid reservations?

The 'severability' approach refers to the position of the Human Rights Committee that, if it concludes that a reservation to the ICCPR is invalid, the State remains bound by the treaty without the benefit of the reservation.

What is the position of the International Law Commission on the status of the author of an invalid reservation?

The International Law Commission's position is that the status of the author of an invalid reservation in relation to a treaty depends on the intention expressed by the reserving State or international organization. If no contrary intention is expressed, the author is considered a contracting State or organization without the benefit of the reservation.

Can the author of an invalid reservation choose not to be bound by the treaty without the benefit of the reservation?

Yes, the author of an invalid reservation may express at any time its intention not to be bound by the treaty without the benefit of the reservation.

What is the significance of expressing the intention not to be bound by the treaty without the benefit of the reservation?

Expressing the intention not to be bound by the treaty without the benefit of the reservation allows the author of the invalid reservation to clarify its position and not be bound by the treaty without the reservation.

What is the time limit for expressing the intention not to be bound by the treaty without the benefit of the reservation?

If a treaty monitoring body expresses the view that a reservation is invalid and the reserving State or international organization intends not to be bound by the treaty without the benefit of the reservation, it should express its intention to that effect within a period of twelve months from the date at which the treaty monitoring body made its assessment

What is judicial dialogue in the context of human rights courts and treaty bodies?

Judicial dialogue refers to the practice of human rights courts and treaty bodies shaping their approach by referring to one another and borrowing each other's solutions to similar problems of interpretation

What is the impact of judicial dialogue on the interpretation of human rights treaties?

Judicial dialogue has led to the development of a case-law that is sometimes detached from the intentions of the treaty authors. Instead of focusing on original intent or literal interpretation, courts and bodies seek guidance from each other's decisions when faced with similar problems

What was the significance of the Mamatkulov and Askarov v. Turkey judgment by the European Court of Human Rights?

The Mamatkulov and Askarov v. Turkey judgment established that a refusal by a State party to the European Convention on Human Rights to comply with an interim measure indicated by the Court constitutes a violation of the Convention. This decision shifted the Court's previous position and emphasized the obligation of States not to hinder the effective exercise of the right to individual application.

What was the change in the European Court of Human Rights' position in the Mamatkulov and Askarov v. Turkey case?

The European Court of Human Rights changed its position in the Mamatkulov and Askarov v. Turkey case by considering that a refusal to comply with an interim measure constitutes a violation of the European Convention on Human Rights. This represented a shift from its previous case law that did not identify the emergence of a customary rule regarding interim measures.

What is the importance of the emergence of a rule of a customary nature in the application of the European Convention on Human Rights?

The emergence of a rule of a customary nature in the application of the European Convention on Human Rights would establish a general practice of States parties to comply with interim measures. This would strengthen the obligation of States not to hinder the effective exercise of the right to individual application.

What is the significance of the European Court of Human Rights referring to 'relevant international law and practice' in its judgments?

The European Court of Human Rights refers to 'relevant international law and practice' in its judgments to consider the views expressed by other courts or human rights treaty bodies concerning the obligatory nature of interim measures. This helps shape the Court's interpretation and reasoning in relation to interim measures.

What is the purpose of interim measures in international disputes?

The purpose of interim measures in international disputes is to preserve the respective rights of the parties pending the final decision. These measures aim to prevent irreparable harm and ensure that the consequences of a finding of responsibility can be effectively implemented

What is the role of provisional measures in the International Court of Justice (ICJ)?

Provisional measures in the ICJ are ordered to preserve the respective rights of the parties to a dispute pending the final decision. These measures are binding and aim to prevent any action that may prejudice or aggravate the dispute.

What is the purpose of provisional measures in the Inter-American system of human rights protection?

Provisional measures in the Inter-American system of human rights protection are adopted to prevent irreparable harm to individuals in serious and urgent cases. These measures are binding and aim to preserve the rights of the alleged victims.

What is the obligation of States Parties in the Inter-American system regarding provisional measures?

States Parties in the Inter-American system have an obligation to fully comply in good faith with all provisions of the American Convention on Human Rights, including the operation of the supervisory organs (the Court and the Commission). They must refrain from taking actions that may frustrate the restoration of the rights of alleged victims

What is the purpose of compliance with provisional measures in the Inter-American system?

Compliance with provisional measures in the Inter-American system is necessary to ensure the effectiveness of decisions on the merits and to protect individuals from irreparable harm. Failure to comply with such measures would frustrate the restitutio in integrum of the rights of alleged victims.

What is the purpose of interim, provisional, or precautionary measures in international disputes?

The purpose of interim, provisional, or precautionary measures in international disputes is to preserve the parties' rights and ensure the effectiveness of decisions on the merits. Compliance with these measures is necessary to avoid irreparable harm and nullification of the final judgment

What is the approach to interpreting the Convention on the Prevention and Punishment of the Crime of Genocide in relation to provisional measures?

The approach to interpreting the Convention on the Prevention and Punishment of the Crime of Genocide is that provisional measures should be binding and preserve the respective rights of the parties pending the decision of the court. Compliance with these measures is necessary to avoid causing irreparable prejudice to the rights in dispute

According to the ICJ, are provisional measures indicated under Article 41 binding?

Yes, the ICJ has confirmed that provisional measures indicated under Article 41 of the ICJ Statute are legally binding.

What did the ICJ judgment in Avena and other Mexican nationals confirm?

The ICJ judgment in Avena and other Mexican nationals confirmed that provisional measures indicated under Article 41 are legally binding.

What is the difference between the power of the Commission of Human Rights and the power of the Court to order interim measures?

The Commission of Human Rights had the power to order interim measures, but its opinion on whether there had been a violation of the Convention was not binding. In contrast, the Court has the power to issue binding decisions on violations of the Convention

Why are interim measures considered important in international law?

Interim measures play a vital role in avoiding irreversible situations that would prevent the Court from properly examining an application and securing the practical and effective benefit of the Convention rights asserted. They aim to protect the rights of the parties and prevent irreparable damage.

What is the significance of Article 13 of the Convention?

Article 13 of the Convention requires a remedy capable of preventing the execution of measures that are contrary to the Convention and whose effects are potentially irreversible. It ensures that individuals have an effective remedy to protect their Convention rights.

Why is it important for the Court to interpret and apply the Convention in a manner that renders its rights practical and effective?

The Court should interpret and apply the Convention in a manner that renders its rights practical and effective to ensure that the rights and freedoms set forth in the Convention are not theoretical and illusory, but rather practical and meaningful in present-day conditions

What are the consequences of a Contracting State's failure to comply with interim measures?

A failure by a Contracting State to comply with interim measures is regarded as preventing the Court from effectively examining the applicant's complaint and hindering the effective exercise of their right. It is considered a violation of Article 34 of the Convention.

What principles guide the interpretation of treaties and the scope of interim measures?

The interpretation of treaties and the scope of interim measures are guided by the principles of good faith, the object and purpose of the treaty, and the principle of effectiveness. Treaties must be interpreted in good faith in the light of their object and purpose.

What is the role of interim measures in protecting the rights and freedoms set forth in the Convention?

Interim measures, as consistently applied in practice, play a vital role in avoiding irreversible situations that would prevent the Court from properly examining the application and securing the practical and effective benefit of the Convention rights asserted. They contribute to the protection of the rights and freedoms set forth in the Convention.

What is the significance of the case of Pretty v United Kingdom?

The case of Pretty v United Kingdom is a 'right to die' case where the European Court of Human Rights interpreted Article 8 of the European Convention on Human Rights. The court sought inspiration from the attitude of the Supreme Court of Canada, which had dealt with a similar situation. The case raises concerns about autonomy and the prohibition on receiving assistance in suicide.

How did the European Court of Human Rights consider the case of Rodriguez v Attorney General of Canada in the context of Pretty v United Kingdom?

The European Court of Human Rights looked at the case of Rodriguez v Attorney General of Canada, which dealt with a similar situation, to draw inspiration and guidance. The Canadian court's majority opinion considered that the prohibition on receiving assistance in suicide contributed to the appellant's distress, deprived her of autonomy, and required justification under principles of fundamental justice.

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Internation Human Rights LAW (EDX) Week 1

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