Shaping Rights in the ECHR
The Role of the European Court of Human Rights in Determining the Scope of Human Rights

An assessment of fundamental questions surrounding the scope of human rights.

Eva Brems (Edited by), Janneke Gerards (Edited by)

9781107043220, Cambridge University Press

Hardback, published 23 January 2014

378 pages
22.9 x 15.2 x 2.2 cm, 0.67 kg

In fundamental rights adjudication, a court first has to determine whether the interest at stake falls within the scope of the fundamental right invoked. Whether or not an individual interest falls within the scope or ambit of one of the fundamental rights protected by the European Convention on Human Rights determines whether or not the European Court of Human Rights can decide on the merits of a case. This volume brings together a variety of legal scholars in order to examine the scope of fundamental rights. Topics range from the nature of human rights and the real or imagined risk of rights inflation to theories of positive obligations and social and economic rights. It contains contributions of a theoretical nature as well as analytical overviews of the ECtHR's approach. In addition, comparisons are made with domestic, EU and international law.

1. Shaping rights: the role of the European Court of Human Rights in defining fundamental rights Janneke Gerards and Eva Brems
Part I. Conceptual, Structural and Constitutional Issues Relating to the Scope of Rights: 2. Between the will of the contracting parties and the needs of today: extending the scope of Convention rights and freedoms beyond what could have been foreseen by the drafters of the ECHR Alastair Mowbray
3. The scope and balancing of rights: diagnostic or constitutive? George Letsas
4. Interpreting the protection guaranteed by two-stage rights in the European Convention on Human Rights: the case for wide interpretation Gerhard van der Schyff
5. The scope of ECHR rights and institutional concerns: the relationship between proliferation of rights and the caseload of the ECtHR Janneke Gerards
Part II. Scope and More: Developments in the Case-Law of the ECtHR: 6. Defining the scope of economic and social guarantees in the case-law of the ECtHR Ingrid Leijten
7. Procedural protection: an examination of procedural safeguards read into substantive Convention rights Eva Brems
8. The scope of rights and the scope of obligations: positive obligations Laurens Lavrysen
9. Contested contours: the limits of freedom of expression from an abuse of rights perspective: Articles 10 and 17 ECHR Antoine Buyse
Part III. 360° Comparison: 10. Bottom-up shaping of rights: how the scope of human rights at the national level impacts upon Convention rights Eirik Bjorge
11. Old and new human rights in Europe: the scope of EU rights versus that of ECHR rights Xavier Groussot and Eduardo Gill-Pedro
12. European human rights as universal rights: in defence of a holistic understanding of human rights Martin Scheinin
Part IV. A Closer Look at Specific Rights: 13. The 'absolute' prohibition of torture and inhuman or degrading treatment in Article 3 ECHR: truly a question of scope only? Stijn Smet
14. The right to a fair trial and its multiple manifestations: Article 6 § 1 ECHR Paul Lemmens
15. How the right to respect for private and family life, home and correspondence became the nursery in which new rights are born: Article 8 ECHR Maris Burbergs
16. Discrimination as a magnifying lens: scope and ambit under Article 14 and Protocol No. 12 Oddný Mjöll Arnardóttir.

Subject Areas: International human rights law [LBBR], International law [LB], Law [L]