Antoine Buyse

DANGEROUS EXPRESSIONS: THE ECHR, VIOLENCE AND FREE SPEECH

How should one balance the freedom of expression and the prevention of violence? This article delves into the grey zone between hate speech and incitement to violence by assessing the jurisprudence of the European Court of Human Rights in cases of allegedly dangerous speech. Rather than labelling this case law as simplistic, as some critics even within the Court have done, it is shown that the jurisprudence reveals cleavages within the Court on whether to adopt a more or less consequentialist approach on the links between speech and violence. Freedom of expression cases should preferably be assessed on the merits under Article 10 ECHR since this allows for a balancing of the various interests involved. The application of the abuse of rights clause of Article 17 ECHR is for that very reason undesirable, in addition to its inconsistent use by the Court.

Words of Violence: "Fear Speech," or How Violent Conflict Escalation Relates to the Freedom of Expression

The limits of the freedom of expression are a perennial discussion in human rights discourse. This article focuses on identifying yardsticks to establish the boundaries of freedom of expression in cases where violence is a risk. It does so by using insights from the social sciences on the escalation of violent conflict. By emphasizing the interaction between violence and discourse, and its effect on antagonisms between groups, it offers an interdisciplinary perspective on an ongoing legal debate. It introduces the notion of “fear speech” and argues that it may be much more salient in this context than hate speech.

Transitional Jurisprudence and the ECHR: Justice, Politics and Rights

The jurisprudence of the permanent regional human rights courts in Europe, Africa and the Americas is profoundly shaping and enriching the law of transitional justice. This book is concerned with the role and contribution of these courts to refounding domestic rights commitments in societies emerging from conflict or authoritarian rule. Contributors from a variety of disciplinary backgrounds analyze the regional case law – primarily, that of the European Court of Human Rights – to illuminate the ways in which human rights norms obtain traction in situations where national legal institutions have either been complicit in, or powerless to halt, violations of core rights. This ‘transitional jurisprudence’ includes scrutiny of rights violations occurring in the course of transition, but also rights violations directly caused by transition and measures introduced to manage the related socio-political and economic fallout. The chapters thus explore a diverse range of transitional narratives including claims related to freedom of religion, property rights, the right to free elections, freedom of expression, freedom from discrimination and the right to life.Each of the regional human rights protection systems has responded to rights violations arising from protracted periods of systemic abuse. The canon of human rights jurisprudence has itself therefore been shaped by the challenges of confronting transitional problems. The book further shows how the judgments of these regional courts can catalyze reform at the national level, influence the strategies employed by domestic actors, and help settle contested histories.‘Transition’ is not a trump card by which states can evade their human rights obligations. The European Court of Human Rights has developed a nuanced and forward-looking, though not always consistent, approach to transitional dilemmas. Amongst the factors it considers are the justice implications of the passage of time and the adequacy of institutional safeguards to limit the harms caused by exceptional transitional measures. Thus, despite the remoteness of these human rights courts in both time and space, this book demonstrates that the regional jurisprudence can exert a significant steer on the direction of transition processes.

A Lifeline in Time – Non-retroactivity and Continuing Violations under the ECHR

The protective shield of a human rights treaty in principle only works once it has entered into force. But what about the frequent problem of human rights violations that occurred or started before that time; can one complain about those on the international level? In other words, what are the limitations of the ratione temporis jurisdiction of supervisory human rights mechanisms? This article explores this question in the context of general public international law through a case study of the European Convention on Human Rights. It argues that the European case laws variations on principles of international law can be explained by the special nature of human rights treaties.

State Recognition: Admission (Im)Possible

This article focuses on state recognition in the European context and on the admission of states to the Council of Europe after the end of the Cold War. It argues that two global trends identified by John Dugard in the 1980s have continued since then: a common approach to state recognition has been adopted and the criteria for state recognition have increasingly been given normative content. This reflects that the constitutive theory of state recognition continued to be popular. The two trends have not automatically resulted in a more legal approach to the issues, as the case study of Bosnia and Herzegovina illustrates.

Home Sweet Home? Restitution in Post-Conflict Bosnia and Herzegovina

The loss of housing for large groups of people is often one of the destructive consequences of armed conflict. In the post-conflict phase, those who try to reclaim their homes face many legal challenges. An emerging human right to housing restitution can be an important tool in achieving successful housing restitution. The inclusion of such a right in the peace treaty concluded at the end of the war in Bosnia and Herzegovina shows that legal recognition of peoples housing claims is a core aspect of post-conflict reconstruction. If implemented in a way which complies with the rule of law, the recognition of a right to housing restitution can be an important contribution to structural peace in fragile States.

Squeezing civic space: restrictions on civil society organizations and the linkages with human rights

ABSTRACT In many countries civil society is under pressure. Collective citizens’ efforts, especially when they have political salience, seem to be regarded with increasing suspicion and even to be actively countered. Anti-NGO laws, arbitrary inspections, harassment, and criminalisation all strike at the roots of civic space. Is this part of a trend of ‘reverse transitions’, in which countries slide away from democracy? Or is this maybe an even wider shift, manifestations of which can also be observed in more established democracies? What are the possible causes of this shrinking or closing civic space, how does the closure manifest itself, and what are the linkages to human rights? This article will focus on anti-NGO measures as part of a broader global trend.

Human Rights for Foxes and Hedgehogs (Inaugural Lecture)

Th ere are two kinds of thinkers, according to the liberal philosopher Isaiah Berlin: hedgehogs and foxes.1 Hedgehogs are those people who try to incorporate everything in the world into one single vision or over-arching truth. By contrast, foxes are people who draw on a wide range of observations, ideas and perspectives. Th eir thoughts are manifold and they do not try and squeeze reality into one straightjacket. Put in scientifi c terms: foxes easily jump from one paradigm to another without asserting that any of them represents the fi nal truth. Berlin developed this metaphor by building on a line from the ancient Greek poet Archilochus which runs as follows: “Th e fox knows many things, but the hedgehog knows one big thing.”2 Dante Alighieri, Plato, and Proust are, in Berlin’s view hedgehogs. Aristotle, Montaigne and James Joyce are foxes. Berlin, in his essay Th e Hedgehog and the Fox, specifi cally applied the metaphor to the famous Russian novelist Lev Tolstoy, author of the great 19th century novel War and Peace. Tolstoy was, to Berlin, the prime example of a fox who desperately tried to be a hedgehog. So, you may wonder by now, what does this have to do with human rights? Let me assure you that you have not stepped into a lecture on Greek or Russian literature. Neither will this be a talk about animal rights. Rather, what I propose to do today is to use this metaphor of the fox and the hedgehog to look at the current state of human rights in the world and more specifi cally, to look at those who study human rights: that strange little tribe called academics. I will do so by addressing how a number of academic fi elds have engaged with human rights and their biggest academic support group: the human rights lawyers. I will argue that studying human rights from nonlegal perspectives, from diff erent disciplines, is key to acquiring new insights in the

Tacit Citing : The Scarcity of Judicial Dialogue between the Global and the Regional Human Rights Mechanisms in Freedom of Expression Cases

This chapter delves into the issue of possible interactions concerning freedom of expression standards between the global and the regional levels. The continuing development and interpretation of human rights norms on these two levels poses questions of coherence. The chapter conducts a case study in order to assess whether there is a (quasi-)judicial dialogue between both levels. Specifically, the norm of freedom of expression contained in the International Covenant on Civil and Political Rights (ICCPR), as interpreted by the UN Human Rights Committee, is compared with the jurisprudence of the European Court of Human Rights in Strasbourg. This specific comparison has been chosen because the Strasbourg system is usually considered to be the most developed and detailed in the sense of norm-interpretation and therefore provides the greatest chance of conducting a viable comparison with the UN level. The chapter also includes a short comparison with the American and African regional human rights systems in this respect. Does the one explicitly refer to the interpretations of the other and vice versa or is any guidance only taken up implicitly? Can either of the two be seen as trend-setters or rather as followers and is there coherence between the two levels of norm-interpretation? These are some of the questions that are addressed in the present chapter.

Post-Conflict Housing Restitutions

Postconflict housing restitution is the process of returning houses to people forcibly displaced during armed conflict. Increasingly, this process is becoming rights-based. Decision making and implementation requires institutions which are sufficiently flexible and efficient to cope with enormous amounts of claims and sufficiently respectful of the rule of law in the challenging context of postconflict societies.