Canada's Legal Revolution: Judging in the Age of the Charter of Rights

1994 ◽  
Vol 28 (4) ◽  
pp. 579-588
Author(s):  
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
Basic Information ◽  
Legal Process ◽  
Canadian Charter ◽  
The Subject ◽  
Fundamental Law ◽  
Fundamental Rights And Freedoms ◽  
The Relationship

I have been asked to speak to you about judging in the age of the Canadian Charter of Rights and Freedoms, with particular reference to remedies under the Charter. You will understand, I am sure, that my treatment of the subject will necessarily be in the nature of an overview.Stated broadly, I will be suggesting to you that the introduction of the Charter in Canada has required a fundamental reappraisal of how judges approach their tasks, of the processes that are employed and of the relationship between the judicial and legislative branches of government.Before developing these two propositions, however, I should first give you some basic information about our Charter; to those for whom this is very familiar ground, I apologize and promise brevity.The Canadian Charter of Rights and Freedoms, which was adopted by Canada in 1982, has one main animating principle from which flows one corollary. The animating principle is that certain human rights and freedoms should be part of the fundamental law of the land. The corollary is that when there is a dispute about the application or the meaning of these fundamental rights and freedoms, it is the responsibility of the courts in Canada to define and apply them through the legal process.

EUROPEAN INSTITUTIONS AND MECHANISMS FOR PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS OF MILITARY PERSONNEL

2021 ◽  
Vol 17 (1) ◽  
pp. 175-182
Author(s):  
Madălina PREDA (DAVIDOIU)
Keyword(s):  
Human Rights ◽  
Military Personnel ◽  
Fundamental Rights ◽  
International Treaties ◽  
Strategic Objectives ◽  
European Institutions ◽  
Legal Foundation ◽  
Standards Of Conduct ◽  
Fundamental Rights And Freedoms ◽  
The Military

Abstract: Through international treaties, human rights have reached the pinnacle of their legitimacy, being ratified by most countries. Respecting the human rights is the legal foundation for a democratic society in which the military has a defining role. In the comprehensive approach of the European institutions, protecting and promoting the human rights of military personnel are preconditions for regional unity, stability and security. The European documents provide an integrated understanding of the concept of rights and freedoms in relation to the special status of military personnel in society, representing regulated standards of conduct. Promoting the culture of respect for the fundamental values of human rights, both in the process of military education and training, as well as in exercising their specific tasks, represents an instrument for maintaining the order, discipline and morale of the military, ensuring the effectiveness of military actions and an overwhelming factor supporting the achievement of strategic objectives.    

The concept and socio-economic essence of the constitution as the fundamental law of the state

2020 ◽  
Vol 59 (10) ◽  
pp. 101-104
Author(s):  
Parvana Bayram Babaeva ◽  
Keyword(s):  
Political Institutions ◽  
State Power ◽  
The State ◽  
Fundamental Rights ◽  
The People ◽  
Legal Document ◽  
The Will ◽  
Fundamental Law ◽  
The Republic ◽  
Fundamental Rights And Freedoms

The Constitution is the fundamental law not only of the state, but also of society, expressing the will of statehood and the sovereignty of the people. The Constitution establishes the fundamental rights and freedoms of man and citizen, socio-political institutions of power and a system of self-government of the people and acts as a legal basis for the formation and development of civil society. The constitution can be viewed as a micromodel, a legal symbol of society. It is within its borders and on its basis that the mechanism of state power operates, the rights and freedoms of citizens are protected, the directions of social development are determined. The Constitution of the Republic of Azerbaijan is a fundamental legal document establishing sovereignty, independence and supremacy of state power. The Constitution of the Republic of Azerbaijan covers not only the structure of the state, but also non-state spheres - the foundations of the socio-economic structure, the cultural life of society, the rights, freedoms and duties of a person and a citizen. Key words: constitution, right, state, law, society, fundamental law, regulation, human rights and freedoms

International Law, the ECHR, and the EU

2021 ◽  
pp. 212-312
Author(s):  
Jan Wouters ◽  
Michal Ovádek
Keyword(s):  
Human Rights ◽  
United Nations ◽  
International Law ◽  
Fundamental Rights ◽  
Special Importance ◽  
International Human Rights Law ◽  
Intergovernmental Organization ◽  
The United Nations ◽  
The Relationship ◽  
The Eu

This chapter focuses on the relationship between international law, the European Convention on Human Rights (ECHR), and the EU. International law features with respect to the EU both as an object of the EU's internal fundamental rights regime and as a source of human rights obligations. Whereas the latter reflects the original conception of international human rights law, the former is capable of generating unease due to the scope for contravening the principle of supremacy of international law. Moreover, although the ECHR can, in principle, be regarded as international law, it is of special importance to the legal order of the EU and its Member States, in addition to representing the most developed regional regime of human rights protection in the world. The specific character of the EU as neither a typical international (intergovernmental) organization nor a state often complicates the relationship with international law further. Nonetheless, Article 3(5) TEU requires the EU to contribute, in its international relations, ‘to the protection of human rights as well as the strict observance and the development of international law, including the respect for the principles of the United Nations Charter’. The chapter then looks at other Council of Europe instruments and the United Nations Convention on the Rights of Persons with Disabilities (UN CRPD).

6. General principles of law

2017 ◽  
Author(s):  
Lorna Woods ◽  
Philippa Watson ◽  
Marios Costa
Keyword(s):  
European Union ◽  
Human Rights ◽  
Fundamental Rights ◽  
European Convention ◽  
The European Union ◽  
Charter Of Fundamental Rights ◽  
Protection Of Human Rights ◽  
General Principles Of Law ◽  
Relationship Of ◽  
The Relationship

This chapter examines the development of the general principles by the Court of Justice (CJ) to support the protection of human rights in the European Union (EU) law. It analyses the relationship of the general principles derived from the CJ’s jurisprudence to the European Convention on Human Rights (ECHR), and the European Charter of Fundamental Rights (EUCFR). It discusses the possible accession of the EU to the ECHR and the implications of Opinion 2/13. It suggests that although the protection of human rights has been more visible since the Lisbon Treaty and there are now more avenues to such protection, it is debatable whether the scope and level of protection has increased.

23. Current issues

2017 ◽  
Author(s):  
Rhona K. M. Smith
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
International Human Rights ◽  
Environmental Rights ◽  
The Future ◽  
International Human ◽  
State Actors ◽  
The Law ◽  
Fundamental Rights And Freedoms ◽  
State Responses

This chapter outlines the future agenda for international human rights and provides an overview of some issues that are likely to characterize the evolution of international human rights in the future. These include non-State actors, including businesses. Environmental rights are also considered. The chapter also suggests that State responses to the threat of terrorism must be proportionate to said threat and must be in accordance with the law, respecting fundamental rights and freedoms.

Constitutional Law and the Jurisprudence of the European Court of Human Rights: An Attempt at a Synthesis

2001 ◽  
Vol 2 (10) ◽  
Author(s):  
Boštjan M. Zupancic
Keyword(s):  
Human Rights ◽  
Conflict Resolution ◽  
Constitutional Law ◽  
Complete Separation ◽  
Human Rights Law ◽  
Legal Process ◽  
Constitutional Courts ◽  
Resolution Process ◽  
European Court ◽  
The Relationship

There are a few premises underlying this discourse on the relationship between constitutional law and European human-rights law which I should reveal before we explore the relationship itself. I start with a functionalistic designation of the general legal process as being no more (and no less!) than a conflict-resolution process. From this perspective, the most important of my starting premises is what I consider to be an empirical fact, that is to say that the constitutional courts now produce jurisprudence(2) overtly and explicitly transcending the Enlightenment's illusion of complete separation between the competencies of the legislative and judicial branches of power.

Reflections and Legal Analysis of the Relationship between “Religious Government and Human Rights” from the Perspective of Grand Ayatullāh Muntazirī

2011 ◽  
Vol 51 (3-4) ◽  
pp. 382-408
Author(s):  
Reza Hajatpour
Keyword(s):  
Human Rights ◽  
Traditional Method ◽  
Political Authority ◽  
Fundamental Rights ◽  
Social Conditions ◽  
Legal Analysis ◽  
Islamic Republic ◽  
Personal Experiences ◽  
The Relationship ◽  
Liberal Concept

AbstractThis article discusses the book "Religious Government and Human Rights" (Hukūmat-i dīn-i wa huqūq-i insān) by the Shiite Grand Ayatullāh Husayn 'Alī Muntazirī (1922-2009). In this work, he explicitly tackles central issues of religious government and discusses its incongruity with human rights. He advocates the recognition of human rights along general lines, and positions himself firmly against absolutist Islamic rule, thereby undermining the concept of religious authority currently prevalent in the Islamic Republic. Muntazirī justifies these moves by applying the traditional method of jurisprudence (usūl al-fiqh), calls for re-arranging the system of how sections of the law are structured and even for the possibility of adding entirely new articles. Iğtihād for him is the renewal of jurisprudence in accordance with the Zeitgeist, with changing social conditions and with scientific discoveries. Jurisprudence, in contrast to revelation, is the work of man and can therefore be questioned and adapted in the light of the principles of reason ('aql). Muntazirī calls for a fresh review of jurisprudence based on the liberal human rights of our time. He also stresses the permanent and universal character of these natural and fundamental rights, which apply in all situations and under all conditions despite cultural and religious differences. For Muntazirī, these fundamental rights are deduced from the very essence of man's existence (insāniyat-i insān), which constitutes their only legitimate source. The roots for Muntazirī's oppositional and critical stance towards the Islamic Republic and its despotic system of rule lie first and foremost in his negative personal experiences with the system. Gradually, these gave way to a critical and more liberal concept of religion and political authority in his thought.

“Not Taking Rights Seriously”. Opting for the Primacy of eu Law over Broader Human Rights Protection

2015 ◽  
Vol 4 (2) ◽  
pp. 277-302
Author(s):  
Fisnik Korenica ◽  
Dren Doli
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
Eu Law ◽  
The European Union ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Court Of Justice ◽  
Charter Of Fundamental Rights ◽  
Protection Of Human Rights ◽  
The Relationship

The European Union (eu) accession to the Convention for the Protection of Human Rights and Fundamental Freedoms (echr) has been a hot topic in the European legal discourse in this decade. Ruling on the compliance of the Draft Agreement on eu accession to the echr with the eu Treaties, the Court of Justice of the eu (cjeu) came up with a rather controversial Opinion. It ruled that the Draft Agreement is incompliant with the eu Treaties in several respects. One of the core concerns in Opinion 2/13 relates to the management of horizontal relationship between the eu Charter of Fundamental Rights (ChFR) and echr, namely Article 53 ChFR and Article 53 echr. The article examines the Opinion 2/13’s specific concerns on the relationship between Article 53 ChFR and Article 53 echr from a post-accession perspective. It starts by considering the question of the two 53s’ relationship from the eu-law autonomy viewpoint, indicating the main gaps that may present a danger to the latter. While questioning from a number of perspectives the plausibility of the cjeu’s arguments in relation to the two 53s, the article argues that the Court was both controversial and argued against itself when it drew harshly upon these concerns. The article also presents three options to address the cjeu’s requirements on this issue. The article concludes that the cjeu’s statements on the two 53s will seriously hurt the accession project, while critically limiting the possibility of Member States to provide broader protection.

scholarly journals La constitucionalización del derecho en Brasil y el régimen jurídico-administrativo: los Paradigmas de la Legitimidad, Neutralidad, Ética, Transparencia y Efectividad en la Administración Pública.

2019 ◽  
Vol 1 (2) ◽  
Author(s):  
Emerson Affonso da Costa Moura
Keyword(s):  
Administrative Law ◽  
Legal Order ◽  
Regime Legitimacy ◽  
Substantial Modification ◽  
The Subject ◽  
Fundamental Law ◽  
Principle Of Legality ◽  
The Relationship

<p>RESUMEN:  Las transformaciones ocurridas en el derecho administrativo que promueven una relectura del contenido del principio de legalidad, impersonalidad, moralidad, publicidad y eficiencia es el tema en debate a partir del ascenso del neoconstitucionalismo y del proceso de constitucionalización del derecho. Se investiga en qué medida, el fenómeno de la filtración constitucional en el ámbito del régimen administrativo, promueve la relectura de los principios de la materia bajo la óptica de la ley fundamental auxiliando en la reestructuración de la dogmática a la centralidad ocupada por el hombre en el orden jurídico y dimensión material de la democracia, en una sustancial modificación en la relación entre Administración y Administrado.</p><p>PALABRAS CLAVES: Neoconstitucionalismo; Constitucionalización; Régimen Administrativo; Legitimidad; Neutralidad; Ética; Transparencia; Efectividad.</p><p> </p><p> </p><p>ABSTRACT: The transformations occurred in administrative law that promote a rereading of the content of the principle of legality, impersonality, morality, publicity and efficiency is the subject under debate as of the rise of neo-constitutionalism and the process of constitutionalization of law. It is investigated to what extent, the phenomenon of constitutional filtration in the scope of the administrative regime, promotes the rereading of the principles of the subject under the optics of the fundamental law helping in the restructuring of dogmaticism to the centrality occupied by man in the legal order and material dimension of democracy, in a substantial modification in the relationship between Administration and Administration.</p><p>KEYWORDS: Neoconstitutionalism; Constitutionalization; Administrative Regime; Legitimacy; Neutrality; Ethics; Transparency; Effectiveness.</p>

scholarly journals Reflexiones sobre la libertad de testar y la stedh de 13 de julio de 2004

2013 ◽  
Author(s):  
Fernando Carol Rosés
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
Council Of Europe ◽  
Spanish Constitution ◽  
Derechos Humanos ◽  
European Court ◽  
Direct Form ◽  
The Will ◽  
Private Autonomy ◽  
Fundamental Rights And Freedoms

La STEDH de 13 de julio de 2004 –dictada en un litigio que tiene su origen en una demanda presentada contra el Principado de Andorra– elude abordar de forma directa el hipotético conflicto entre libertad de testar y principio de igualdad y,en cambio, reelabora la voluntad del testador a la luz del Convenio Europeo de Derechos Humanos, lo cual supone un ataque a la esencia misma de la sucesión testada. Aunque con carácter de obiter dicta entiende que cualquier relación jurídica de Derecho privado deberá ser interpretada de conformidad con el Convenio, afirmación que cuestiona la propia autonomía privada. Si bien en España, como en otros muchos Estados miembros del Consejo de Europa, las sentencias del Tribunal Europeo de Derechos Humanos no son directamente ejecutivas, sí es cierto que a la luz del artículo 10.2 de la Constitución Española tanto el principio de igualdad como los demás derechos fundamentales y libertades deberán ser interpretados de conformidad con los acuerdos internacionales ratificados por España, siendo ésta precisamente la vía que conduce a la efectividad de la jurisprudencia del Tribunal Europeo de Derechos Humanos, creando, en el caso que nos ocupa, una situación, cuanto menos, preocupante.The ECHR Judgment of 13 July 2004 –dictated in a litigation that has his origin in a demand presented against the Principality of Andorra– eludes to approach of direct form the hypothetical conflict between freedom of testamentary disposition and beginning of equality, with the consequence that there re-elaborates the will of the testator in the light of the European Agreement of Human rights, which supposes an assault to the essence itself of the testate succession. Though with character of obiter dicta he understands that any juridical relation of private Law will have to be interpreted of conformity with the Agreement, affirmation that questions the own private autonomy. Though in Spain, since in other many members states of the Council of Europe, the judgments of the European Court of Human rights are not directly executive, yes it is true that in the light of the article 10.2 of the Spanish Constitution both the beginning of equality and other fundamental rights and freedoms will have to be interpreted of conformity with the international agreements ratified by Spain. Therefore, this one is precisely the route that he leads to the efficiency of the jurisprudence of the European Court of Human Rights, creating, in the case that occupies us, a situation worrying.

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