Lunch seminar with Nurbanu Hayir 2024
Article 17’s Unexpected Allies: Why the European Court of Human Rights Grants Greater Deference to Low-Reputation States?
Judicial deference to respondent states by the European Court of Human Rights (ECtHR, Court) has been understood as a key component of the judicial review of member states’ compliance with the European Convention on Human Rights (ECHR). The common understanding is that through its margin of appreciation (MoA) doctrine, the Court has shown greater judicial deference to states with strong human rights records, institutions and procedures while reviewing their respect for human rights as opposed to those it considers to be less resilient democracies. Notwithstanding, in a series of cases concerning Article 17 of the ECHR, which prohibits individuals from abusing their rights under the Convention, the Court has ruled in favor of defendant states such as Russia, Hungary, Romania, Latvia and Turkiye by exercising considerable judicial deference. At this overlooked juncture of the Court’s MoA doctrine and Article 17 (and related) cases, this paper argues that the Court’s judicial deference strategy regarding respondent states’ human rights reputation is shaped by an underlying assumption about democratic resilience, which inversely benefits low-reputation states in cases of certain ideologies such as totalitarianism, communism, and fundamentalist Islam. The Court’s assumption about the fragility of the legal and political institutions of low-reputation states exceptionally becomes a ground for deferring to them to preempt the looming threats against their democratic systems. Its definition of democracy, as the only compatible system with the Convention, excludes these suspect ideologies within the Council of Europe framework, and in turn, it lowers the threshold to grant a margin of appreciation to low-reputation states to prevent these threats.
Speaker bio
Nurbanu Hayır recently got her LL.M. degree from Yale Law School and holds a first law degree from Galatasaray University. She is visiting iCourts as a Yale University Fox Fellow for her research on how public opinion factors into international law compliance, in particular, enforcement of international court judgments and the impact of sanctions on state acts. She has a broad interest in examining how international law regulates the treatment of foreigners and how nation-state boundaries influence the principles and dynamics of international law. Her previous academic works have explored diverse issues, such as understanding the enforcement histories of international courts through the application of compliance theories, how social psychology phenomena shed light on the varying actions taken by states in similar issues arising from refugee law, the intersection of sanctions and EU migration law, and a critical analysis of the deployment of emergency doctrines in migration contexts.
Meeting ID: 627 4538 8459
Passcode: 839199