• Beyond Expansion or Restriction? Models of Interaction between the Living Instrument and Margin of Appreciation Doctrines and the Scope of the ECHR

      Ita, Rachael; Hicks, David; De Montfort University; University of Derby (Brill, 2021-06-23)
      The living instrument doctrine of the European Court of Human Rights (ECtHR) is criticized as restricting the margin of appreciation of States and expanding the scope of the European Convention on Human Rights (ECHR). Systematic examination of this claim is usually overlooked in the context of the relationship between the admissibility and merits phase of ECtHR cases. This paper considers this claim in the context of jurisdictional arguments on incompatibility ratione materiae (subject matter outside the scope of the Convention) and the link to the merits of the case. Case law of the ECtHR from January 1979 to December 2016 is assessed to elaborate four models of interaction between the margin of appreciation and living instrument doctrines. This paper argues the need to go beyond consideration of expansion and restriction of the scope of the ECHR, and to assess the Court’s appetite for allocating new duties to States based upon the case arguments and positioning of living instrument and margin of appreciation doctrines.
    • Putting ‘Justice’ in recovery capital: Yarning about hopes and futures with young people in detention

      Hamilton, Sharynne Lee; Maslen, Sarah; Best, David; Freeman, Jacinta; O'Donnell, Melissa; Reibel, Tracy; Mutch, Raewyn; Watkins, Rochelle; University of Western Australia; University of Canberra; et al. (Queensland University of Technology, 2020-01-20)
      Aboriginal and Torres Strait Islander young people are over-represented in Australian youth detention centres and the justice system. In contrast to deficit-focused approaches to health and justice research, this article engages with the hopes, relationships and educational experiences of 38 detained youth in Western Australia who participated in a study of screening and diagnosis for fetal alcohol spectrum disorder. We report on a qualitative study that used a ‘social yarning’ approach. While the participants reported lives marred by substance use, crime, trauma and neurodevelopmental disability, they also spoke of strong connections to country and community, their education experiences and their future goals. In line with new efforts for a ‘positive youth justice’ and extending on models of recovery capital, we argue that we must celebrate success and hope through a process of mapping and building recovery capital in the justice context at an individual and institutional level.