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• W2081488574 abstract "Transition is one of the fuzzy concepts often used in academia. It is unclear what it is, where it begins and where it ends. This vagueness is not only because the concept contains unclear notions such as ‘motion’, ‘direction’, ‘change’, and ‘adaptation’, but also because such a lack of clarity may indicate that this state is never-ending. James A. Sweeney takes on the challenge to explain different aspects of transition in the Eastern European context. He departs from an intriguing question: how has the European Court of Human Rights reviewed the transitional policies of the Eastern European countries in relation to their human rights obligations as stated in the European Convention on Human Rights? In what follows, I will briefly outline the main themes put forward in the book, and present my remarks on the substance and style of Sweeney's writing. Sweeney draws upon Ruti Teitel's genealogy of transitional justice. He examines how the European Court interpreted various transitional policies employed by the former Communist countries of Eastern Europe and the resulting transitional dilemmas. Basing his analysis on the European Court's case-law, Sweeney explores the Court's function in establishing historical truth, dealing with the past, and accommodating the transitional policies, while holding on to the universality of human rights and remaining sensitive to the differences between transitions. The issue areas Sweeney covers are prosecution and amnesty, openness and access to secret information, historical justice, reparatory justice, restitution and lustration, and several democratic rights in the transitional context such as freedom of speech, assembly and association and free elections. After conducting a thorough study, he establishes that the Court has been rather successful in acknowledging the differences between each transitional context, taking the special needs of transitional justice into account and preserving the universality of human rights at the same time. Nonetheless, Sweeney correctly points out that the Court's case-law on transitional issues has also been inconsistent and somewhat irreconcilable. In an attempt to resolve this conceptual confusion, Sweeney proposes a three-staged approach in studying transitional jurisprudence. The transitional policies should: (1) meet the standards of rule of law and be “prescribed by law”, (2) be consonant with a “Convention legitimate aim”, (3) be a necessary step to reach this “legitimate aim”. Fulfilling these criteria, right-restrictive measures of transitional policies could be considered as ‘appropriate responses’ (pp.247-250). Moreover, States employing such responses in accordance with these criteria could be given a wider margin of appreciation. Finally, the crux of his argument becomes clearer at the concluding discussions section, where he discusses the universality in transition theme. He argues that the transitional dilemmas may require giving more leeway to the transitioning States, and this practice is still congruent with the universality of human rights notion. This is primarily because the Court relies on the margin of appreciation doctrine when granting more discretion to these States. Nevertheless, Sweeney underlines that this should not be considered a special treatment or “transitional margin of appreciation”, since -conceptually- it is not different from “regular margin of appreciation” (p.246). This is the first book Sweeney has authored. Portraying transitional policies as they are reflected in the jurisprudence of the European Court, Sweeney deals with a relatively under-explored topic. He bridges the fields of transitional justice and human rights, thus offering a highly significant contribution to both strands of academic literature. His work has a lot to offer to the researchers working on the European Courts’ jurisprudence with respect to Eastern European countries, policies of transition and de-communisation, and post-Cold War institutional adaptation. As far as the style of the book is concerned, praises are in order. Sweeney brings together numerous court cases and categorizes this less than consistent case law in a manner that is accessible to readers. The organization of the book along the themes of transition and democratic rights in transitional contexts serves well in conveying Sweeney's main argument. His proposition on the counter-intuitive convergence of the universality of human rights and transitional relativism is thought-provoking. However, to the reader two uncertainties remain, which could be averted by giving more substance on the implications of the Court's role in transitional dilemmas, and the theme of universality in transition. First, Sweeney consciously avoids engaging in the larger debates on whether the Court's focus should be concentrated on individual or constitutional justice. However, I am of the opinion that his argument is intricately linked to this very debate. The idea of treating new and old members differently, or giving a wider margin of appreciation to the transitioning States requires a constitutional balancing on the needs in transitional justice cases. The Court is known to take ‘unforeseen’ responsibilities and deal with structural issues. Yet the Convention system is based on a treaty and not a constitutional document.1 It is primarily tailored to hearing individual complaints of a violation of rights safeguarded under the Convention. Hence it does not formally have a constitutional dimension, which would allow the Court to review the transition of democratic institutions, or the administration of justice in the context of transition. However, Sweeney does not problematize this discrepancy, neither does he question whether acquiring such a constitutional role can be based on the Convention itself or the original drafters’ intention. Instead, he explains the transitional policies and the judgments concerned, by relying on the Parliamentary Assembly's ‘resolution on measures to dismantle the heritage of former communist totalitarian systems,’2 which is a mere collection of recommendations to the State Parties, and which is not in a capacity to grant this role to the Court. On the whole, Sweeney gives a good account on how the Court progressively developed its rather contradictory case law with respect to transitional policies, which could be complemented by finding some basis to this practice. Secondly, the universality in transition argument could be substantiated further. Sweeney makes his point by relying on the margin of appreciation doctrine. He argues that this differential treatment does not hamper the universality of human rights, because the Court uses the margin of appreciation when giving leeway to local judiciary. Yet another look at the reasoning used in some of the cases could point to a different conclusion. The Court, indeed, quite often resorts to the margin of appreciation doctrine when dealing with transitional cases. This doctrine, in the classical sense, means that the Court finds its position subsidiary to the national judges with respect to issues on which there is no consensus among State Parties. However, if the margin of appreciation doctrine is employed considering the transitional sensitivities, then this could also mean the Court has made a constitutional judgment regarding the domestic situation and an exception for the transitional context. More importantly, if under normal circumstances similar violations would be treated differently, namely when it concerns old members or the post-transitional period (seen in the case of Ždanoka v. Latvia),3 could one still talk about universality? The thought to ponder upon is whether making an exception due to transitional dilemmas changes the fact that an exception has been made. Against this background, I agree with Sweeney's argument that this differential treatment reflects ‘transitional relativism’ rather than ‘cultural relativism’, but consider his claim on the universality of human rights in transition inadequate. Leaving aside these bones of contention, on balance, The European Court of Human Rights in the Post-Cold War Era: Universality in Transition is a well-researched and well-written work. With its strong empirical basis, this book speaks to an audience with an interest in how the European Court has viewed the transitional policies. The downside is there is not sufficient space for critical discussions. While Sweeney gives ample examples to elucidate types of transitional cases, he does not give enough weight to discussing the significance of these forms of transitional justice cases. Even so, shedding some light on the Court's convoluted approach to the transitional policies, Sweeney presents us with a remarkably informative work, which can also be appreciated by people outside of the discipline. Sweeney has invited the European Court as well as other international human rights enforcement institutions to define a vigorous way of prioritizing human rights concerns and transitional needs. This call has not been responded to so far; vagueness around the issue remains, yet Sweeney's dedication to make sense of transition is commendable." @default.
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• W2081488574 title "The European Court of Human Rights in the Post-Cold War Era: Universality in TransitionSweeney, James A. Oxon, New York, Routledge (2013), 262 p., ISBN: 978-0415-54433-7" @default.
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