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Flexible Foreseeability: A Human Rights Rule of Law Perspective on Interferences with the Right to Peaceful Protest through Vague Law

Nordvall, Pernilla LU (2016) JURM02 20162
Department of Law
Abstract
Protesting against human rights violations is dangerous. Worldwide, human rights defenders are subject to violations ranging from harassment to murder. One way in which human rights defenders are silenced is through the misuse of the national judicial system where it is employed to punish human rights defenders for their work. Vague laws contribute to making this possible because they obfuscate the scope of the law and enable its arbitrary application. The purpose of this thesis is to investigate what protection there is against this type of abuse of law, with a focus on the ECtHR’s jurisprudence. To contextualise the discussion, protest understood both as a right in itself and as a mean to defend other rights, as well as vague national... (More)
Protesting against human rights violations is dangerous. Worldwide, human rights defenders are subject to violations ranging from harassment to murder. One way in which human rights defenders are silenced is through the misuse of the national judicial system where it is employed to punish human rights defenders for their work. Vague laws contribute to making this possible because they obfuscate the scope of the law and enable its arbitrary application. The purpose of this thesis is to investigate what protection there is against this type of abuse of law, with a focus on the ECtHR’s jurisprudence. To contextualise the discussion, protest understood both as a right in itself and as a mean to defend other rights, as well as vague national law restricting this right, are used as examples.

The main research question is how the ECHR protects against national law being used as a mean to restrict the right to protest. Even though the thesis focuses on the ECHR, it also engages with the ICCPR. This study is conducted through legal dogmatic method, which is a method for determining the contents of the law by analysing its sources. The theoretical starting points are rule of law understood in its formal sense which stresses the foreseeability of law, and de facto criminalisation which provides the conceptual tools to define criminal law in a broader sense than what follows from the national definition.

In this thesis, the requirement that interferences with the right to protest must have a legal basis is considered a rule of law concept derived from human rights law. According to this requirement, there must both be a legal basis as determined by national law, and this law must fulfil the quality requirements posed by international law. These requirements are that the law must be accessible, foreseeable and provide safeguards against arbitrary application. Full foreseeability is an unattainable ideal and it is therefore inescapable that laws are vague to a certain extent. Therefore, foreseeability is a flexible concept.

Accordingly, there is a basis according to the ECHR to determine a national law as an invalid basis to interfere with the right to protest because it is too vague. Nevertheless, the ECtHR is reluctant to assess national legislation both with respect to whether there is a legal basis according to national law and whether the national law is of sufficient quality. Moreover, the requirement on foreseeability is applied inconsistently. In its assessment, the court also defers to the assessment of the national authorities by affording states a margin of appreciation, and often assesses foreseeability as part of an overall proportionality assessment. Given that foreseeability is flexible, the proportionality assessment is used to determine the level of foreseeability required.

Through focusing on proportionality rather than the quality of the law, foreseeability is not developed as a legal standard. Additionally, the level of protection becomes dependant on how the case is conceived and the individual facts of the case. Meanwhile, it follows from the importance of the right to protest in a democratic society that there should be a high requirement on foreseeability of laws interfering with the right. The principle of legality moreover speaks in favour of that dubious cases should be interpreted in favour of the right to protest. (Less)
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author
Nordvall, Pernilla LU
supervisor
organization
course
JURM02 20162
year
type
H3 - Professional qualifications (4 Years - )
subject
keywords
public international law, human rights law, rule of law, vague law, foreseeability, quality of law, legality, peaceful protest, human rights defender, de facto criminalisation, interferences
language
English
id
8897576
date added to LUP
2017-01-18 19:02:11
date last changed
2017-01-18 19:02:11
@misc{8897576,
  abstract     = {Protesting against human rights violations is dangerous. Worldwide, human rights defenders are subject to violations ranging from harassment to murder. One way in which human rights defenders are silenced is through the misuse of the national judicial system where it is employed to punish human rights defenders for their work. Vague laws contribute to making this possible because they obfuscate the scope of the law and enable its arbitrary application. The purpose of this thesis is to investigate what protection there is against this type of abuse of law, with a focus on the ECtHR’s jurisprudence. To contextualise the discussion, protest understood both as a right in itself and as a mean to defend other rights, as well as vague national law restricting this right, are used as examples.

The main research question is how the ECHR protects against national law being used as a mean to restrict the right to protest. Even though the thesis focuses on the ECHR, it also engages with the ICCPR. This study is conducted through legal dogmatic method, which is a method for determining the contents of the law by analysing its sources. The theoretical starting points are rule of law understood in its formal sense which stresses the foreseeability of law, and de facto criminalisation which provides the conceptual tools to define criminal law in a broader sense than what follows from the national definition.

In this thesis, the requirement that interferences with the right to protest must have a legal basis is considered a rule of law concept derived from human rights law. According to this requirement, there must both be a legal basis as determined by national law, and this law must fulfil the quality requirements posed by international law. These requirements are that the law must be accessible, foreseeable and provide safeguards against arbitrary application. Full foreseeability is an unattainable ideal and it is therefore inescapable that laws are vague to a certain extent. Therefore, foreseeability is a flexible concept.

Accordingly, there is a basis according to the ECHR to determine a national law as an invalid basis to interfere with the right to protest because it is too vague. Nevertheless, the ECtHR is reluctant to assess national legislation both with respect to whether there is a legal basis according to national law and whether the national law is of sufficient quality. Moreover, the requirement on foreseeability is applied inconsistently. In its assessment, the court also defers to the assessment of the national authorities by affording states a margin of appreciation, and often assesses foreseeability as part of an overall proportionality assessment. Given that foreseeability is flexible, the proportionality assessment is used to determine the level of foreseeability required.

Through focusing on proportionality rather than the quality of the law, foreseeability is not developed as a legal standard. Additionally, the level of protection becomes dependant on how the case is conceived and the individual facts of the case. Meanwhile, it follows from the importance of the right to protest in a democratic society that there should be a high requirement on foreseeability of laws interfering with the right. The principle of legality moreover speaks in favour of that dubious cases should be interpreted in favour of the right to protest.},
  author       = {Nordvall, Pernilla},
  keyword      = {public international law,human rights law,rule of law,vague law,foreseeability,quality of law,legality,peaceful protest,human rights defender,de facto criminalisation,interferences},
  language     = {eng},
  note         = {Student Paper},
  title        = {Flexible Foreseeability: A Human Rights Rule of Law Perspective on Interferences with the Right to Peaceful Protest through Vague Law},
  year         = {2016},
}