Part V Rights and Freedoms, A Litigating and Interpreting the Charter, Ch.29 Interpreting the Charter

Author(s):  
Harrington Joanna

This chapter examines the judicial approach to the interpretation of the Canadian Charter of Rights and Freedoms. Attention is paid to the general interpretive techniques developed by the courts to determine both the content of Charter rights and their limitations, while also considering the judicial use of internal and external interpretive aids, including both foreign and international law, such as the European Convention on Human Rights and the International Covenant on Civil and Political Rights. It is also argued that the national context plays an important role, with the interpretive role of the court ultimately to be guided by a sense of balance in protecting rights and recognizing their limitations.

2014 ◽  
Vol 22 (4) ◽  
pp. 351-375
Author(s):  
Marloes van Noorloos

This article deals with the role of criminal law in dealing with defamatory expressions about religion or belief. Defamation of religion and belief is a form of indirect defamation ‘via identification’ which, as the discussion about the Dutch group defamation law shows, stretches up the notion of ‘group defamation’ — a crime which requires that (groups of) persons are insulted because they belong to a religious group. This contribution investigates whether European states can legitimately criminalise (certain forms of) defamation of religion and belief, in light of the European Convention on Human Rights, the United Nations framework (particularly the International Covenant on Civil and Political Rights) and legal theoretical considerations. The article shows how problematic it is for the criminal law — in light of the rights to freedom of expression and freedom of religion, as well as the ultima ratio principle — to combat such speech.


2021 ◽  
Vol 28 (2) ◽  
pp. 125-136
Author(s):  
Aleksandra Limańska

The principle of legalism places upon the public prosecutor the obligation o pressing charges to a court of law and then to support this claim in the course of the lawsuit. It seems obvious that in order to execute this duty in an appropriate manner, the public prosecutor should attend the trial and actively participate in it. However, in regulation Art. 46 §2 k.p.k., which was introduced by way of an amendment issued on 11 March 2016, the legislator stipulated a regulation which permits the public prosecutor not to appear during the trial, if the preliminary legal proceedings concluded in the form of investigation. Obviously, the task of this regulation is to accelerate the proceedings in cases of lesser calibre, which are cases in which an investigation is conducted. However, it is necessary to consider the aforementioned regulation in the context of the basic principles of a criminal lawsuit and the analysis of the consequences of such regulations. Therefore, in the first instance one made reference to the most important regulations contained in the basis acts of international law, i.e. the European Convention of Human Rights and the International Covenant on Civil and Political Rights which emphasise above all the significance of independence and impartiality, as well as the principle of a quick and efficient operation of the procedure. It was also necessary to refer the substantive regulation to the principle of the contradictoriness of the criminal lawsuit, which stipulates inter alia the separation of lawsuit-related roles and the passivity of the court in reference to the initiative of the parties who argue their cases.


2021 ◽  
Vol 70 (1) ◽  
pp. 103-132
Author(s):  
Shane Darcy

AbstractInternational law has not traditionally recognised individuals as victims of the crime of aggression. Recent developments may precipitate a departure from this approach. The activation of the jurisdiction of the International Criminal Court over the crime of aggression opens the way for the future application of the Court's regime of victim participation and reparation in the context of prosecutions for this crime. The determination by the United Nations Human Rights Committee in General Comment No. 36 that any deprivation of life resulting from an act of aggression violates Article 6 of the International Covenant on Civil and Political Rights serves to recognise a previously overlooked class of victims. This article explores these recent developments, by discussing their background, meaning and implications for international law and the rights of victims.


2021 ◽  
Vol 194 ◽  
pp. 503-530

503Relationship of international law and municipal law — Treaties — European Convention on Human Rights, 1950 — Role of European Court of Human Rights — Judgments of European Court of Human Rights and Russian Constitutional Court — Whether interdependent — Resolution in case of conflicting judgments — Supremacy of Russian law — Russian Constitution — Section 1 of Article 6.21 of Russian Administrative Offences Code — Whether compatible with Russian ConstitutionRelationship of international law and municipal law — Treaties — International instruments — Universal Declaration of Human Rights, 1948 — European Convention on Human Rights, 1950 — International Covenant on Civil and Political Rights, 1966 — Rights and duties — Rights of freedom of expression — Restrictions on rights — Whether necessary in democratic society — Public health and morals — Moral values — Relevance — Russian Constitution — Article 15(4) of Constitution — International law an integral part of Russian legal system — Implementation of international provisions — Constitutional recognition of traditional family values in Russian society — Respect for dignity of others and Russian morality — Prohibition of propaganda arousing hatred — Article 29(2) of Russian Constitution — Traditional family values in Russian society — Role of family — Russia’s legislative approach — Whether conforming with Russian Constitution — Whether contradicting International Covenant on Civil and Political Rights, 1966 or European Convention on Human Rights, 1950 — Section 1 of Article 6.21 of Russian Administrative Offences Code — Whether compatible with Russian ConstitutionRelationship of international law and municipal law — Treaties — United Nations Convention on the Rights of the Child, 1989 — Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, 2007 — Rights of children — Traditional family values in Russian society — Russian Constitution — Protection of children from sexual exploitation and abuse — Dissemination of information related to sexual self-determination — Whether information damaging to health and development of children — Whether Russia obliged to create conditions for propaganda, support and recognition of same sex union under Constitution or international law — Section 1 of Article 6.21 of Russian Administrative Offences Code — Whether compatible with Russian Constitution504International tribunals — European Court of Human Rights — Jurisdiction — Whether Court having competence to review conformity of Russian legislation with European Convention on Human Rights, 1950 — Constitutional requirement to exhaust domestic remedies before appealing to interstate bodies for human rights protection — Article 46 of Russian Constitution — Judgments of European Court of Human Rights and Russian Constitutional Court — Whether interdependent — Resolution in case of conflicting judgments — Section 1 of Article 6.21 of Russian Administrative Offences Code — Whether compatible with Russian ConstitutionHuman rights — Prohibition on discrimination — Equality of all persons — Human dignity — Right to private life — Freedom of speech — Sexual self-determination — Sexual discrimination — Right to disseminate information related to sexual self-determination — Whether exercise of right violating rights of others — Rights of minors — Balancing of rights — Moral values — Relevance — Whether public activity unconditionally lawful under Russian Constitution — Approach under international instruments — Duties and restrictions — Universal Declaration of Human Rights, 1948 — European Convention on Human Rights, 1950 — International Covenant on Civil and Political Rights, 1966 — Articles 13, 17, 19, 29 and 55 of Russian Constitution — Traditional family values in Russian society — Role of family — Russia’s legislative approach — Whether conforming to Russian Constitution — Whether contradicting International Covenant on Civil and Political Rights, 1966 or European Convention on Human Rights, 1950 — Section 1 of Article 6.21 of Russian Administrative Offences Code — Whether compatible with Russian ConstitutionHuman rights — Rights of children — Traditional family values in Russian society — Russian Constitution — Protection of children from sexual exploitation and abuse — United Nations Convention on the Rights of the Child, 1989 — Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, 2007 — Dissemination of information related to sexual self-determination — Whether information damaging to health and development of children — Whether Russia obliged to create conditions for propaganda, support and recognition of same sex union under Constitution or international law — Section 1 of Article 6.21 of Russian Administrative Offences Code — Whether compatible with Russian Constitution — The law of the Russian Federation


2019 ◽  
pp. 103-122
Author(s):  
Rhonda Powell

Drawing on the analysis of security in Chapter 3 and the capabilities approach in Chapter 4, Chapter 5 provides examples of the interests that the right to security of person protects. It also considers the extent to which human rights law already recognizes a link between those interests and security of person. Five overlapping examples are discussed in turn: life, the means of life, health, privacy and the home, and autonomy. Illustrations are brought primarily from the European Convention on Human Rights, the Canadian Charter, and the South African Bill of Rights jurisprudence. It is argued that protection against material deprivations that threaten a person’s existence are as much part of the right to personal security as protection against physical assaults. The right to security of person effectively overcomes the problematic distinction between civil and political rights and socio-economic rights because it sits in both categories.


Author(s):  
Bernadette Rainey ◽  
Elizabeth Wicks ◽  
Andclare Ovey

This chapter analyses the interpretation of the European Convention on Human Rights (ECHR). It explains that there are key themes which have dominated the interpretation of the Convention: the purposive and the evolutive interpretations. The chapter describes the approach of the Strasbourg Court to the interpretation of the ECHR and evaluates the influence of the Vienna Convention. It suggests that the interpretation of the Convention builds on the rules of public international law on the interpretation of treaties and has remained broadly consistent with those principles, and that the role of the Strasbourg Court is casuistic.


2005 ◽  
Vol 28 (3) ◽  
pp. 699-729
Author(s):  
Jacques Zylberberg

This essay undertakes a review of national and international law to demonstrate that law is mainly an ideological and variable instrument of the State and of the United Nations, which is a by-product of the states. In this perspective, the author opposes the pragmatical ideology of resistance against the sovereign state to the juridical legitimation and the behaviour of the States who reluctantly have conceded some civil and political rights. Those rights are endangered by the growing bureaucratization of the state, the inflation of the juridical norms and rules, in addition to the permanent repressive characters of the State. The criticism of the contradiction and the variation of the rule of law when it relates to "human rights" is also extended to international law as well as to the international organizations.


Obiter ◽  
2018 ◽  
Vol 39 (3) ◽  
Author(s):  
Aliyu Ibrahim

While most of the United Nations (UN) treaties have committees to monitor the implementation of their provisions among their States parties, one of the major challenges they encounter is their inability to independently verify the information provided by the States parties, on the level of fulfilling their obligations to the treaties. However, the establishment of National Human Rights Institutions (NHRIs) by the majority of UN member states was meant to not only promote and protect human rights within the territories of States parties, but also to monitor the implementation of the provisions of treaties at the domestic level. This resulted in treaty bodies to encourage NHRIs, in monitoring and providing it with information on the level of implementation of the provisions of these treaties within the territories of respective States parties. This article examines whether these institutions in Africa have been able to discharge their mandates concerning the implementation of two treaties, namely, the International Covenant on Civil and Political Rights (ICCPR) which is monitored by the Human Rights Committee (HRC) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) which is overseen by the Committee on Economic, Social and Cultural Rights (CESCR). The NHRIs of South Africa, Morocco and Nigeria have been selected to test the effectiveness of these institutions. The study ultimately shows that the majority of these institutions are still far off from achieving their potential.


2021 ◽  
Author(s):  
Bartosz Pacholski

The subject matter of this commentary, which instigates the Views of the Human Rights Committee of 27 January 2021, is the protection of one of the fundamental human rights – the right to life. The Committee, as an authority appointed to oversee compliance with the International Covenant on Civil and Political Rights, had to decide on the issue of Italy’s responsibility for failing to provide assistance to a boat in distress, even if the area in which the vessel was located was not within the territory of this state and other acts of international law attribute the responsibility for executing the rescue operation to a third country. According to the Committee’s views, which applied extraterritorial approach to the protection of the right to life, whenever states have the opportunity to take action for the protection of human rights they should do everything possible in a given situation to help people in need.


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