A Study On The Impact Of The European Court Of Human Rights On The Hague Abduction Convention

The enforcement machinery of the European Convention of Human Rights and Fundamental Freedooms(hereafter ECHR)is representative of regional human rights protection,and what makes the enforcement machinery particularly unique and effective is that it provides for individual applications.International Child Abduction Returning Mechanism established on the basis of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction(hereafter the Hague Abduction Convention)has also achieved great success in eliminating and preventing international child abduction.Since the Hague Abduction Convention can be seen as supporting and implementing human rights norms,the mechanism of individual complaints under the European Convention on Human Rights has been used for complaints regarding violations of its Articles 6 and 8,in particular,as a result of the application of the Hague Child Abduction Convention.When dealing with individual applications,the European Court of Human Rights(hereafter ECtHR)usually contributes to a harmonised approach with positively impacting the functioning of the Hague Abduction Convention.Firstly,the expression "rights of custody",for example,does not coincide with any particular concept of custody in a domestic law,but draws its meaning from the definitions,structure and purposes of the Hague Abduction Convention.The ECtHR found that the national authorities' determining custody improperly and delaying the order of returning would violate the ECHR.Secondly,in order to quickly return children to their habitual residence,national authorities should limit the interpretation of the exceptions to return under the Hague Abduction Convention.The ECtHR has traditionally endorsed the strict interpretation of the return exception.Finally,the Hague Abduction Convention does not adequately guide the enforcement to return,Article 11 of the Hague Abduction Convention is only designed to apply to the stage where the authorities make the order,without covering proceedings for enforcement.However,the ECtHR went beyond this limiting approach.Overall,the ECtHR through its case law has maintained and promoted the operation of the Hague Abduction ConventionHowever,The ECtHR's case law made the ECHR negatively impacting the functioning of the Hague Abduction Convention.Firstly,the principle of the best interests of the child based on the ECHR conflicts with the exception to return of the Hague Abduction Convention.The principle of the best interests of the child is narrower than that of the ECHR.If the ECtHR conducts a substantive review of whether national authorities fully assess the interests of children,it will reduce the efficiency of the mechanism for returning children Secondly,the misinterpretation of Article 3 of the Hague Convention by national courts does not lead to violations of the ECHR,which means that the ECHR allows national authorities to misinterpret the Hague Convention.There are some ways to eliminate the negative obstacles to the operation of the Hague Abduction Convention by the ECHR which are The lex specialis Rule and The Doctrine of Equivalent Protection as well as Harmonisation.In theory and practice,The lex specialis Rule and The Doctrine of Equivalent Protection can not perfectly solve the inconsistency between the ECHR and the Hague Abduction Convention.Harmonisation thus seems to be the only viable and appropriate avenue for resolving the conflict between the ECHR and the Hague Convention.On the one hand,the ECtHR is required to conduct procedural rather than substantive reviews of domestic courts in accordance with the ECHR,Secondly,the European Court of Human Rights,in interpreting the ECHR,should adopt the Incrementalism rather than Margin of Appreciation.