The Emergence of International and Regional Value Systems as a Manifestation of the Emerging International Constitutional Order

2006 ◽  
Vol 19 (3) ◽  
pp. 611-632 ◽  
Author(s):  
ERIKA DE WET
Keyword(s):  
Human Rights ◽  
Value Systems ◽  
European Convention ◽  
International Human Rights ◽  
Value System ◽  
National Courts ◽  
European Court ◽  
International Human ◽  
Human Rights Norms ◽  
Jus Cogens

This article explores the composition of the emerging international value system, including its hierarchical components. It also contrasts this fragile international value system with the more strongly developed European value system (European public order), as concretized by the European Convention on Human Rights and the jurisprudence of the European Court of Human Rights. It first argues that international human rights norms constitute the ‘core content’ of a constantly evolving and layered international value system. Within this value system, a special but fragile hierarchical status is granted to those human rights norms that qualify as jus cogens and/or erga omnes norms. Thereafter it explores the manner in which the European Court of Human Rights has concretized the normative superiority of obligations under the European Convention on Human Rights for member states vis-à-vis other norms of public international law, to the extent that a conflict between these norms arises. It concludes by examining whether these developments could also strengthen the international value system through a spill-over effect via the work of international human rights bodies and national courts. This, in turn, would strengthen the ability of the international value system to determine the outcome of conflicts between international obligations stemming from different international regimes.

scholarly journals The problem of applying reservations to international human rights agreements

2021 ◽  
pp. 68-73
Author(s):  
Ivanna Maryniv ◽  
Liubov Rudai
Keyword(s):  
Human Rights ◽  
International Law ◽  
Legal Regulation ◽  
European Convention ◽  
Effective Control ◽  
International Treaties ◽  
International Human Rights ◽  
European Court ◽  
Human Rights Treaties ◽  
International Human

A problem statement. Human rights law, as a branch of public international law, to date, is mainly codified and consists mainly of treaty rules contained in universal and regional conventions. At the same time, in most cases, the parties to these agreements make reservations of both a substantive and procedural nature that apply to all generations of human rights. The question arises as to the legitimacy of the reservations declared by states to international acts on human rights and freedoms. Аnalysis of research and publications. Many international lawyers deal with the issue of reservations to human rights treaties and their validity. Thus, the works of E.S. Alisievich, are devoted to this issue, I.I. Lukashuk, V.G. Butkevich, V.L. Tolstoy, M.V. Buromensky and others. However, there are a number of problems with the legal regime of reservations to human rights treaties. The main thesis that reveals their essence is that there is no mechanism for effective control over the legitimacy of such reservations. The main text. The article considers the concept of reservations to international treaties, examines the problem of issuing reservations to international human rights treaties. The application of the institution of reservations is studied on the example of certain international treaties in the field of human rights, such as: the European Convention on Human Rights, the Convention on the Elimination of All Forms of Discrimination against Women, the African Charter on Human and Peoples’ Rights. The case law of the European Court of Human Rights on the application of reservations to the European Convention on Human Rights is studied. Conclusions. Today, the sovereign right of every state to stipulate international treaties is firmly established in international law, but there is no clear legal regulation of this institution that would prevent abuses by states in this area. We see the need to further study the institution of reservations to human rights treaties, its development and the development of general principles, procedures, and control over their legitimacy.

scholarly journals Disability, Deprivation of Liberty and Human Rights Norms: Reconciling European and International Approaches

2017 ◽  
Vol 2016 (22) ◽  
pp. 76
Author(s):  
Eilionóir Flynn
Keyword(s):  
Human Rights ◽  
Right To Health ◽  
European Convention ◽  
Font Size ◽  
Right To Life ◽  
International Human Rights ◽  
Persons With Disabilities ◽  
International Human ◽  
Human Rights Norms ◽  
Article 5

<p><span style="font-family: 'Helvetica',sans-serif; font-size: 12pt; mso-fareast-font-family: Calibri; mso-fareast-theme-font: minor-latin; mso-ansi-language: EN-GB; mso-fareast-language: EN-US; mso-bidi-language: AR-SA;">Persons with disabilities are subject to unique forms of deprivation of liberty, often justified by reference to the need to protect their right to life, right to health, and to protect the human rights of others. This paper examines disability-specific forms of deprivation of liberty, particularly those authorised in mental health and capacity law, in light of their compliance with European and international human rights frameworks. It explores the apparent tension between Article 5 of the European Convention on Human Rights, which permits deprivation of liberty of ‘persons of unsound mind’ in certain circumstances, and Article 14 of the UN Convention on the Rights of Persons with Disabilities, which states that ‘the existence of a disability shall in no case justify a deprivation of liberty.’ The challenges in attempting to comply with both provisions are illustrated through reference to developments in England and Wales. This paper also seeks to offer a way forward for States Parties to both Conventions, in order to protect the rights of persons with disabilities.</span></p>

The Legal Personality of Individuals in International Human Rights Law

2018 ◽  
Author(s):  
Astrid Kjeldgaard-Pedersen
Keyword(s):  
Human Rights ◽  
European Convention ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Legal Personality ◽  
European Court ◽  
History Of ◽  
International Human ◽  
International Legal Personality

Following a summary presentation of some key events in the history of international human rights law before the Second World War, Chapter 7 concentrates on one prominent example within the field of international human rights law, namely the European Convention on Human Rights (ECHR). Section 7.2 deals in turn with three core issues. First, Section 7.2.1 describes the evolution of the procedural status of individuals before the European Court of Human Rights (ECtHR) and assesses the role of the concept of international legal personality in that regard. Section 7.2.2 studies the Court’s practice concerning the interpretation of the ECHR, including the margin of appreciation doctrine. Finally, Section 7.2.3 analyses the practice of the ECtHR as regards the place of the Convention in the international legal system.

Der "margin of appreciation" beim Europäischen Gerichtshof für Menschenrechte

2019 ◽  
Author(s):  
Paula Gorzoni
Keyword(s):  
Human Rights ◽  
European Convention ◽  
International Human Rights ◽  
Human Rights Protection ◽  
Rights Protection ◽  
European Court ◽  
Margin Of Appreciation ◽  
Formal Principle ◽  
International Human

The application of the margin of appreciation is indispensable in the practice of the European Court of Human Rights as the European Convention on Human Rights does not envisage the development of a single understanding of human rights for all states. However, it has to be taken into account that the states’ margin of discretion in this respect cannot be unlimited. The challenge is to find the necessary balance between the sovereignty of the national authorities and a coherent form of international human rights protection. This study analyses this challenge using the theory of principles. It raises the question of how an international balance, including the sovereignty or the competence of the national authorities as a formal principle, can be established. In the course of reconstructing the margin of appreciation by applying different models of formal principles in an empirical case study, the author develops an answer to this question.

Systemic and Structural Factors Relating to Quality and Equality of Human Rights Implementation in Federal States

2018 ◽  
Vol 7 (1) ◽  
pp. 43-81
Author(s):  
Judith Wyttenbach
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Structural Factors ◽  
International Human Rights ◽  
Federal States ◽  
Institutional Frameworks ◽  
European Court ◽  
Human Rights Treaties ◽  
Multi Level ◽  
International Human

The internal organisation of a state is a contributing factor to the implementation of human rights treaties. Although federal states do not demonstrate an implementation standard that is generally lower or higher than in unitary states, both the positive developments and deficits arising can be linked to the federal structure. In many cases, under the state’s internal order, the responsibility for implementation lies not only with the federal government but in parallel or even exclusively with the constituent states, provinces or regions. The integration of uniform standards within a system of multi-level politics involves certain special features, which are identified and discussed. For those purposes, the author has evaluated and undertaken a critical analysis of the implementation requirements of international human rights treaties and the European Convention on Human Rights, interpretative documents issued by treaty bodies and judgments of the European Court of Human Rights. The focus of the analysis concerns the structural and institutional frameworks typically found in federal states. The assessment seeks to contribute to a deeper understanding of the benefits and challenges of implementation in federal states.

scholarly journals INTERNATIONAL HUMAN RIGHTS STANDARDS AND RUSSIAN CRIMINAL JUSTICE

2020 ◽  
Vol 6 (4) ◽  
pp. 61-66
Author(s):  
A. A. Tarasov
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Fair Trial ◽  
The State ◽  
European Convention ◽  
International Human Rights ◽  
European Court ◽  
International Human ◽  
The Individual ◽  
Human Rights Standards

The novelty lies in the author's assessment of the impact of international human rights standards and a fair trial procedure not only on the criminal justice itself, but also on the entire system of relations between the state and the individual, as well as in a critical analysis of clauses found in the literature on possible restrictions on the application of the European Court's practice on human rights in Russia. The aim of the work is to substantiate the unconditionally positive influence of international human rights and justice standards on the Russian criminal justice system and the relationship between the state, the individual and society. The objective is to demonstrate, using examples from the literature and practice of the European Court of Human Rights, the undoubtedly positive impact of the application in Russia of the European Convention for the Protection of Human Rights and Fundamental Freedoms and decisions of the European Court of Human Rights on Russian criminal justice and on all practical jurisprudence in Russia. The article uses the methods of system analysis and synthesis, comparative legal and historical methods. As a result, the author's conclusions about the inadmissibility and inappropriateness of limiting the operation on the territory of Russia of international human rights standards and fair trial procedures expressed in the European Convention and court decisions of the European Court have been substantiated. In conclusion, these brief conclusions are formulated.

scholarly journals The Admissibility of Multiple Human Rights Complaints: Strasbourg and Geneva Compared

2019 ◽  
Vol 19 (3) ◽  
pp. 517-536
Author(s):  
Christophe Deprez
Keyword(s):  
Human Rights ◽  
United Nations ◽  
European Convention ◽  
Political Rights ◽  
International Human Rights ◽  
Optional Protocol ◽  
Human Rights Practice ◽  
European Court ◽  
International Human ◽  
Civil And Political Rights

Abstract This article seeks to provide a comparative and up-to-date overview of the applicable rules and relevant practice of the European Court of Human Rights and of the United Nations Human Rights Committee on forum duplication in international human rights litigation. While specific inadmissibility clauses have been included in both the European Convention on Human Rights and the Optional Protocol to the International Covenant on Civil and Political Rights with a view to preventing multiple human rights petitions in relation to the same matter, their respective scopes differ. Moreover, the applicable normative framework has led to important—and diverging—judicial developments in Strasbourg and in Geneva, which may be of great significance in human rights practice and therefore deserve to be thoroughly addressed.

scholarly journals Gurkha's Quest for Justice: Possible Remedies for Gurkhas under International Human Rights System

2021 ◽  
pp. 14-36
Author(s):  
Geeta Pathak Sangroula
Keyword(s):  
Human Rights ◽  
Analytical Framework ◽  
East India Company ◽  
European Convention ◽  
International Human Rights Law ◽  
International Human Rights ◽  
Equal Pay ◽  
European Court ◽  
The Status ◽  
International Human

There is a 205-year long history of Gurkha’s entanglement with the British. In 1816, the British East India Company defeated Nepal in the Anglo-Nepalese war. Dominant narratives of this history suggests that the British were impressed by the war-fighting capabilities and loyalty of the Gurkhas, and recruited them- not as mercenaries but part of their army- to fight in the World Wars, to maintain imperial administration in British India, Burma, Malaya, Singapore, and Hong Kong. After the 1947 Tripartite Agreement between India, Nepal, and Britain, Gurkha soldiers were recruited annually in both British and Indian armies. For decades, the Gurkhas have carried out a movement seeking equal pay and pension in comparison to their British counterpart. After a long struggle, their movement reached the European Court of Human Rights wherein the Court did not find a violation of the European Convention regarding the differential treatment of Gurkha soldiers. The paper, briefly subscribes to the available literatures about the magnitude of problems and the status of Nepali Gurkhas in the British Army, including an overview of the commitments and obligation of United Kingdom towards human rights. The paper fills the scholarly gap by taking international human rights as an analytical framework in approaching the Gurkhas’ issue. In making a case for possible remedies, Gurkhas as ‘rightsholders’ is proposed as a suitable frame. It concludes with recommendations, grounded in international human rights law, as a possible remedial mechanism for the Gurkhas — in their quest of justice. "We never got equal terms and pay, and we are not even bothered about that. What we are seeking is justice for our pensions, getting equal to what the British get, according to the service rendered." (Retired major Tikendra Dal Dewan)

Multiparty Democracy: International and European Human Rights Law Perspectives

2010 ◽  
Vol 23 (1) ◽  
pp. 209-240 ◽  
Author(s):  
JURE VIDMAR
Keyword(s):  
Human Rights ◽  
Cold War ◽  
European Convention ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Post Cold War ◽  
European Court ◽  
European Public ◽  
International Human

AbstractAlthough multiparty elections are not explicitly required by international human rights instruments or the European Convention on Human Rights (ECHR), certain human rights provisions have been interpreted as leading to such a requirement. While a democratic interpretation of human rights law has been settled in the ECHR framework, it remains disputable at the universal level. Despite numerous references to democracy in the documents adopted in the UN framework in the post-Cold War era, this article argues that an explicit link between international human rights law and multiparty elections has yet to be established. On the other hand, such a link has been developed by the European Court of Human Rights (ECtHR). Multiparty elections are considered to be part of the European public order. Moreover, the ECtHR has shown that it understands democracy beyond the existence of electoral procedures. But the role and understanding of democracy within the ECHR cannot be universalized.

NGOs before the European Commission and the Court of Human Rights

1996 ◽  
Vol 14 (3) ◽  
pp. 289-302 ◽  
Author(s):  
Marek Antoni Nowicki
Keyword(s):  
Human Rights ◽  
Eastern Europe ◽  
Central And Eastern Europe ◽  
European Convention ◽  
International Human Rights ◽  
Human Rights Protection ◽  
Rights Protection ◽  
European Court ◽  
International Human

Non-governmental organisations play an important part and are indispensable for the effective functioning of the international human rights protection machinery. This article is an overview of the role of NGOs in the procedure under the European Convention on Human Rights. They appear before the Convention institutions in various different capacities. Some of them claim to be victims of human rights violations. Many NGOs, especially human rights organisations, strive to provide assistance to individual applicants. Ratification of the European Convention on Human Rights by countries of Central and Eastern Europe is a great challenge for non-governmental organisations from this region. At the time they play a quite important role in disseminating knowledge on the Convention to the general public. Protocol No. 11 creating soon a new single European Court of Human Rights will open new perspectives also for NGOs.

Sign in / Sign up

Export Citation Format

Share Document