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About this book

This book deals with urgency and human rights. ‘Urgent’ is a word often used, in very different contexts. Yet together with a reference to human rights violations, it likely triggers images of people caught up in armed conflict, facing terror from either the state, gangs, paramilitaries, or terrorists. Or of people fleeing terror and facing walls, fences or seas, at risk of being returned to terror, or ignored, neglected, abused, deprived of access to justice and basic facilities, facing death, torture and cruel treatment. Here these both ongoing and expected violations are explored in the context of (quasi-)judicial proceedings as international tribunals and domestic courts are increasingly called upon to order interim measures or accelerate proceedings in such cases.

This edited volume concerns the protective potential of interim measures in international human rights cases and the legitimacy of their use and discusses obstacles to their persuasive use, to clarify how their legitimacy and protective potential could be enhanced in the context of concrete legal cases. Examining this is especially pressing when courts and (quasi-)judicial bodies have used interim measures in response to requests by individuals and organisations in the context of issues that are unpopular with governments and/or controversial within society, which has led states to at times employ political pressure to limit their use.

Urgency and human rights are discussed from the vantage point of various practitioners and scholars, with the aim of identifying how interim measures could be legitimate and protective and to single out obstacles to their implementation. Drawing from practices developed in various international and regional adjudicatory systems, the contributors provide their perspectives on the legitimacy and/or the protective potential of interim measures and other (quasi-)judicial proceedings in urgent human rights cases.

There is considerable discussion about how interim measures can be legitimate and well-functioning tools to address urgent human rights cases. This book aims to contribute to the ongoing discussion in this respect.

Dr. Eva Rieter is senior researcher and lecturer public international law and human rights law at the Centre for State and Law, Radboud University, Nijmegen, The Netherlands.

Dr. Karin Zwaan is associate professor in the Department of Migration Law at the Centre for State and Law, Radboud University, Nijmegen, The Netherlands.

Table of Contents

Frontmatter

Chapter 1. Introduction: Perspectives on the Protective Potential of Interim Measures in Human Rights Cases and the Legitimacy of Their Use

Abstract
In the face of time constraints, adjudicators have developed practices dealing with urgent cases, including through interim measures. Indeed, in urgent human rights cases, petitioners continue to request the use of interim measures. At the same time, at UN and regional level states have at times shown their displeasure with the use of interim measures and have sometimes done so in a concerted manner. Thus, there is a need to consider how these measures can be as persuasive as possible. This chapter explores the issues of legitimacy and the protective potential of interim measures and refers to obstacles undermining this potential, which are discussed further by different authors throughout this book. This chapter sets out the approach taken in this book, and introduces the subsequent chapters, where various practitioners and scholars further analyse the protective potential and legitimate use of interim measures and other practices dealing with urgent cases.
Eva Rieter

Chapter 2. Urgency and Human Rights: The Necessary and Legitimate Role of Regional Human Rights Tribunals

Abstract
This chapter explores the use and development of the power to grant interim measures of international human rights institutions. The legal basis of such judicial power is often not explicitly found in treaties. Therefore, some states do not consider themselves legally bound as such. The chapter argues that the two needs that give rise to implied powers to take urgent measures are the administration of justice, on the one hand, and effective protection of the fundamental rights of individuals and groups within the jurisdiction of member states, on the other hand. Thus, the legal authority for this power is inherent in the judicial function and applies also to quasi-judicial bodies such as the Inter-American Commission on Human Rights. Yet precautionary measures, as they are called by this Commission, often concern sensitive matters in domestic law and politics, generating considerable internal resistance. The chapter discusses the major reform of the Inter-American Commission’s Rules of Procedure, resulting in a more legitimate process. While this overhaul satisfied the states, the chapter expresses concern for the expansion in the subject matters of precautionary measures without risk of irreparable harm. Yet the author concludes that the legal systems put in place by the agreements the states wrote, have given human rights bodies the mandate and the obligation to carefully and fairly respond to imminent threats of irreparable harm. They should continue to do so when the facts and the law justify action.
Dinah Shelton

Chapter 3. Urgency and Human Rights in EU Law: Procedures Before the Court of Justice of the EU

Abstract
This chapter delves into the European Union (EU) law and procedure in urgent human rights cases, especially as pending before domestic courts. The Court of Justice of the European Union (CJEU) is regularly faced with urgent cases involving human rights issues. The authors first address the practice of ordering interim measures in direct actions before the General Court and the Court of Justice; and then the relevance of EU law for interim measures or other forms of provisional protection at the domestic level. Following this, they zoom in on the preliminary ruling procedure to secure rights of (Union) citizens. In urgent cases the CJEU has certain tools for accelerating the proceedings. Depending on the area of law, these tools are the urgent preliminary ruling procedure (PPU), and the expedited or accelerated preliminary ruling procedure (PPA). The chapter focuses on a review of these tools. It deals with the criteria of serious and irreparable damage and gives examples involving immigration law (Return Directive and non-refoulement), criminal law (e.g. European Arrest Warrant) and civil law (e.g. child custody cases). The authors also stress the importance of proper procedure and the need to make limited use of these tools, so as not to threaten the legitimacy of the normal judicial process before the CJEU.
Sacha Prechal, Aniel Pahladsingh

Chapter 4. The Politics of Interim Measures in International Human Rights Law

Abstract
This chapter scrutinises the discomfort of states in accepting legally binding urgent measures, granted by international and regional tribunals or committees. The unwillingness of states to accept the binding power of interim measures, and the questioning of their legitimacy, can be seen on a judicial level as well as on a political level. Firstly, the legal challenges to the binding nature of interim measures are considered. Secondly, on the political level, this chapter discusses the inter-governmental negotiations about treaty reform and the creation of new rules of procedure. The European Court of Human Rights and the United Nations treaty bodies serve as the main examples, but one section concerns the developments in the Inter-American system, where a Special Working Group was set up to reflect on this topic.
Roísín Pillay

Chapter 5. Provisional Measures in the African Human Rights System: Lingering Questions of Legitimacy

Abstract
This chapter critically analyses the jurisprudence of the African Commission and the Court on Human and Peoples’ Rights on provisional measures, as well as archival documents of the African Union. Next to the legal foundation of provisional measures in the African system, it discusses a range of situations that have been submitted by complainants as urgent, of extreme gravity and carrying the risk of irreparable harm to persons. It then deals with how the supervisory mechanisms have themselves decided upon the use of provisional measures. It examines the compliance situation and analyses it from the perspective of legitimacy. It shows that the users of the system and the adjudicators continue to play their roles in the cooperative tripod, but that African states have remained the weak point in their failure to implement most of the measures issued in cases involving them. The states do not question the legal foundation of provisional measures, but certain other legitimacy concerns can be detected. The chapter suggests some strategies for addressing such legitimacy concerns, which the adjudicators could employ to enhance the protective value of the system.
Solomon T. Ebobrah

Chapter 6. The Legitimacy of Interim Measures from the Perspective of a State: The Example of Canada

Abstract
This chapter discusses the legitimacy and protective potential of interim measures from the standpoint of a particular state: Canada. While Canada has long been supportive of the international legal protection of human rights, it has refused to abide by interim measures requests. The author critically discusses the practice of Canada, including its courts, as well as its public record of objection before the Human Rights Committee and the Committee against Torture. She argues that while Committee Views on the merits are not generally considered legally binding, states cannot automatically assume that their interim measures requests have no legal force. Yet in order to encourage state compliance, she stresses that process matters. She suggests that the UN Committees look at the procedural reforms made by the Inter-American Commission on Human Rights as this would result in greater transparency and trust in the system. She also points out the need for making the format and terminology of UN documents more user-friendly for the domestic context. Finally, as to the substance of interim measures, she argues in favour of providing detailed reasons for interim measures decisions.
Joanna Harrington

Chapter 7. Urgency in Expulsion Cases Before the European Court of Human Rights and the UN-Committees: A Bird’s Eye View

Abstract
This chapter focuses on the issue of urgency in expulsion cases. It analyses case law of the European Court of Human Rights (ECtHR), as well as the UN Human Rights Committee (HRCtee), the UN Committee on the Elimination of Discrimination against Women (CEDAW), the UN Committee on the Rights of the Child (CRC) and the UN Committee against Torture (CAT). The question is addressed how these bodies deal with evidentiary matters and how, within the time-constraints, they deal with the requirements of elaboration and reasoning. It is a bird’s eye view because a view from a very high place allows you to see a large area, and urgency in expulsion cases also encompasses a large number of judgments and views. Also—from a practitioner’s perspective—the choice of forum will be dealt with. This chapter—as well as the entire book—takes a thematic, rather than a system by system approach to urgency in human rights litigation. It deals with the overall theme of legitimacy and protective potential of the tool of interim measures in human rights cases. To discuss the above-mentioned topics, a case study on Female Genital Mutilation (FGM) will give insight into all these different aspects of urgency, evidentiary matters, choice of forum and the protective potential of interim measures in expulsion cases.
Karin Zwaan

Chapter 8. Irreparable Harm in the Ukraine Conflict: Protection Gaps and Interim Measures

Abstract
This chapter argues that, due to over-broadness and lack of follow-up mechanisms, the initial European Court of Human Rights request for interim measures in the armed conflict in Ukraine was ineffectual. Presenting an illustrative case study on irreparable harm caused by serious human rights violations in eastern Ukraine, it identifies practical challenges in the seeking and enforcement of interim measures. Additionally, it discusses how protection gaps identified by the various international, governmental and nongovernmental actors in the region were (and were not) dealt with by authorities, contrasting the interim measures regarding eastern Ukraine with those regarding Crimea. Finally, it identifies lessons learned and opportunities for further engagement by practitioners to help prevent irreparable harm in the context of systematic human rights violations. The effective utilization of interim measures requires that they be tailored and targeted to address specific human rights abuses, including with any follow-up mechanisms that can be supported through political discourse. The response to the urgent human rights situation in Crimea suggests that human rights practitioners should engage with social movements, as well as with high-level and multilateral political advocacy to help ensure that the social and political advocacy, and the interim measures ordered are mutually reinforcing.
Brian Griffey

Chapter 9. Urgency at the European Court of Human Rights: New Directions and Future Prospects for the Interim Measures Mechanism?

Abstract
This chapter examines the application of interim measures by the European Court of Human Rights, specifically focusing on their scope and on the efficacy of the process. The Court’s use of interim measures is primarily aimed at preventing ‘irreparable damage’ in extradition or deportation cases. In this contribution, other urgent cases are considered, such as detainees’ access to a lawyer and the right to receive adequate medical treatment. Moreover, the analysis of the Court’s evolving practice shows a further broadening of the scope of situations in which interim measures are applied. The chapter also discusses the extent of state resistance to interim measures and whether they could be a useful instrument to preserve the Convention rights of applicants in the context of armed conflict. Finally, the chapter stresses the importance of follow-up and discusses whether and how the Court should monitor compliance with interim measures directions while a case is still pending before it, rather than just ex post facto.
Philip Leach

Chapter 10. The Innovative Potential of Provisional Measures Resolutions for Detainee Rights in Latin America Through Dialogue Between the Inter-American Court and Other Courts

Abstract
The dire situation in prisons in which detainees who are protected by provisional measures find themselves in Latin America is a practice incompatible with international human rights treaties, such as the American Convention on Human Rights (ACHR) and human rights standards developed by the Inter-American Court, which establish that detainees must be held in dignified detention conditions. The Inter-American Court uses the legal instrument of provisional measures adopted in the context of the case of the Instituto Penal Plácido de Sá Carvalho v. Brazil (2018) to start a dialogue with the case law of certain national courts of the Organization of American States (OAS States) and another international court, with the objective of analysing the structural problems in detention centres all over Latin America and providing some answers. While the Inter-American Court is aware of the limits of its jurisdiction, it apparently wishes its provisional measures to have an effective or material impact on the improvement of detention conditions. For the first time the Court adjudicates that for a state with grave problems in its detention centres, there is no need to build new detention facilities or to transfer detainees to other existing centres, because these measures do not solve the problem at hand. The time during which detainees are being held in undignified conditions must be taken into account and lead to a reduction of their time spent in prison.
Clara Burbano Herrera, Yves Haeck

Chapter 11. Conclusion: The Protective Potential and Legitimate Use of Interim Measures in Human Rights Cases

Abstract
This chapter contains overall reflections on common threads between the various contributions in this book on the protective potential and legitimacy of judicial urgency measures in human rights cases. It refers to different mechanisms highlighted throughout the book. The focus is on interim measures. The subject matters discussed concern obstacles to compliance and state pressure to control the practices developed by different adjudicators, protection gaps and suggested measures to enhance the protective potential of interim measures. Two of those suggested measures in the preceding contributions are to increase specificity and to make sure there is follow-up. This chapter reflects on these and then zooms in on the third measure suggested: increasing the normative legitimacy of interim measures. Normative legitimacy is important for social legitimacy and, thereby, for the protective potential of interim measures. While the criticisms expressed by states often serve merely as excuses for non-compliance, rather than constitute real concerns, it is nonetheless important to discuss how adjudicators can enhance the normative legitimacy of their decisions on interim measures. This chapter brings together aspects of normative legitimacy suggested by the various authors in the previous chapters. Legitimacy aspects discussed are the purpose of interim measures, the authority of adjudicators to take them and the legal status of interim measures, the fairness of the decision-making, avoiding prejudgment, ensuring transparency, sufficiency of the evidence and staying within the scope.
Eva Rieter

Backmatter

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