Where Our Protection Lies

2017 ◽  
Author(s):  
Dimitrios Kyritsis
Keyword(s):  
Human Rights ◽  
Institutional Design ◽  
Separation Of Powers ◽  
Fundamental Rights ◽  
Moral Legitimacy ◽  
Joint Project ◽  
Constitutional Review ◽  
Rights Protection ◽  
The People ◽  
The Relationship

In this book Dimitrios Kyritsis advances an original account of constitutional review of primary legislation for its compatibility with human rights. Key to it is the value of separation of powers. When the relationship between courts and the legislature realizes this value, it makes a stronger claim to moral legitimacy. Kyritsis steers a path between the two extremes of the sceptics and the enthusiasts. Against sceptics who claim that constitutional review is an affront to democracy he argues that it is a morally legitimate institutional option for democratic societies because it can provide an effective check on the legislature. Although the latter represents the people and should thus be given the initiative in designing government policy, it carries serious risks, which institutional design must seek to avert. Against enthusiasts he maintains that fundamental rights protection is not the exclusive province of courts but the responsibility of both the judiciary and the legislature. Although courts may sometimes be given the power to scrutinize legislation and even strike it down, if it violates human rights, they must also respect the legislature’s important contribution to their joint project. Occasionally, they may even have a duty to defer to morally sub-optimal decisions, as far as rights protection is concerned. This is as it should be. Legitimacy demands less than the ideal. In turn, citizens ought to accept discounts on perfect justice for the sake of achieving a reasonably just and effective political order overall.

“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.

Democracy and Child Rights Protection

2017 ◽  
pp. 123-144
Author(s):  
Oluwafifehan Ogunde
Keyword(s):  
Human Rights ◽  
Administrative Law ◽  
Constitutional History ◽  
Child Rights ◽  
Rights Protection ◽  
The People ◽  
Democratic System ◽  
The Will ◽  
The Relationship ◽  
Law Making

The doctrine of constitutional supremacy is well entrenched in Nigerian constitutional and administrative law. A plethora of cases exists to establish the constitution as the supreme law-making instrument in Nigeria. This principle derives strength from a presumption that the constitution is reflective of the will of the people, as is expected under a democratic system of government. The aim of this chapter is to consider the relationship between human rights and democracy in the context of the Nigerian constitution. The first part of this chapter will be a brief overview of the Nigerian constitutional history leading up to the 1999 Constitution of the Federal Republic of Nigeria (as amended). The author will then proceed to examine the 1999 constitution in the context of child rights. The significance of constitutional peculiarities in the context of child rights protection will be considered with reform measures suggested to address any emergent complexities.

9. Fundamental rights in the European Union

2020 ◽  
pp. 243-282
Author(s):  
Eleanor Spaventa
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
Historical Background ◽  
European Convention ◽  
The European Union ◽  
Rights Protection ◽  
European Court ◽  
Charter Of Fundamental Rights ◽  
The Relationship ◽  
The Eu

This chapter examines fundamental rights in the EU. It begins by analysing the historical background and the development of the case law on fundamental rights. It then examines the main Treaty provisions relating to fundamental rights protection, before turning to the Charter of Fundamental Rights of the EU. Finally, it looks at the relationship between the EU and the European Convention on Human Rights (ECHR), including the extent to which the European Court of Human Rights agrees to scrutinize EU acts. It also considers the plan for the EU to accede to the ECHR.

Composing Europe’s Fundamental Rights Area: A Case for Discursive Pluralism

2015 ◽  
Vol 17 ◽  
pp. 210-246
Author(s):  
Louise HALLESKOV STORGAARD
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fundamental Rights ◽  
Eu Law ◽  
Rights Protection ◽  
Court Of Justice ◽  
European Court ◽  
Normative Basis ◽  
The Relationship ◽  
The Eu

AbstractThis article offers a perspective on how the objective of a strong and coherent European protection standard pursued by the fundamental rights amendments of the Lisbon Treaty can be achieved, as it proposes a discursive pluralistic framework to understand and guide the relationship between the EU Court of Justice and the European Court of Human Rights. It is argued that this framework – which is suggested as an alternative to the EU law approach to the Strasbourg system applied by the CJEU in Opinion 2/13 and its Charter-based case law – has a firm doctrinal, case law and normative basis. The article ends by addressing three of the most pertinent challenges to European fundamental rights protection through the prism of the proposed framework.

scholarly journals ‘Enemies of the People’? The Judiciary and Claude Lefort’s ‘Savage Democracy’

2020 ◽  
pp. 27-42
Author(s):  
Panu Minkkinen
Keyword(s):  
Human Rights ◽  
Relative Position ◽  
Separation Of Powers ◽  
Theoretical Framework ◽  
The People ◽  
Rubber Stamp ◽  
Starting Point ◽  
Integral Element ◽  
The Relationship

The chapter attempts to, first, clarify the position of human rights in Claude Lefort's unique blend of phenomenologically and psychoanalytically inspired political theory. Human rights, and by extension rights more generally, are in this account an integral element of a 'savage democracy' that Lefort envisioned as the only plausible challenge to the totalitarian tendencies of neoliberalism. From this starting point, the chapter will then discuss the position of the judiciary in contemporary democracies. Standard accounts of the separation of powers reduce the courts' constitutional functions to the application and interpretation of laws issued by an elected legislator. But as the relationship between the legislator and the executive has changed, so, too, has the relative position of the judiciary. A strong executive as the engine of legislative initiatives, supported by a weak 'rubber-stamp' legislature, has highlighted the need to emphasise the democratic potential of the judiciary that goes beyond the 'deferential' role of standard accounts. The chapter will provide a theoretical framework for understanding this democratic role through Lefort's account of human rights.

9. Fundamental rights in the European Union

2017 ◽  
Author(s):  
Eleanor Spaventa
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
Historical Background ◽  
European Convention ◽  
The European Union ◽  
Rights Protection ◽  
European Court ◽  
Charter Of Fundamental Rights ◽  
The Relationship ◽  
The Eu

This chapter examines fundamental rights in the EU. It begins by analysing the historical background and the development of the case law on fundamental rights. It then examines the main Treaty provisions relating to fundamental rights protection, before turning to the Charter of Fundamental Rights of the EU. Finally, it looks at the relationship between the EU and the European Convention on Human Rights (ECHR), including the extent to which the European Court of Human Rights agrees to scrutinize EU acts. It also considers the draft agreement on the EU’s accession to the ECHR.

Moral and Constitutional Rights

2017 ◽  
Author(s):  
Dimitrios Kyritsis
Keyword(s):  
Human Rights ◽  
Political Legitimacy ◽  
Fundamental Rights ◽  
Constitutional Rights ◽  
Constitutional Review ◽  
State Institutions ◽  
Rights Protection ◽  
Political Morality ◽  
Legitimate State ◽  
The Right

Some theorists oppose deference not because it is haphazard but because it is incompatible with respect for fundamental rights. They argue that compromising human rights is a price a legitimate state should never have to pay, and constitutional review is there to ensure that this does not happen. Against this line of argument the chapter argues that there is nothing in the logic of constitutional rights that precludes deference. To this effect, it defends a distinction between moral and constitutional rights. Drawing on TM Scanlon’s controversial theory of rights it maintains that constitutional rights are clusters of principles of political morality, not all of which correspond to deontological constraints about what under no conditions we may do to the right holder. Importantly, some of these principles also reflect the importance of sharing fundamental rights protection amongst state institutions. The chapter then connects this understanding of constitutional rights and political legitimacy.

scholarly journals Fundamental Human Rights and UNO Charter: A Critical Analysis with Islamic Perspectives.

2021 ◽  
pp. 97-117
Author(s):  
Inam Ullah Wattoo ◽  
Yasir Farooq
Keyword(s):  
Human Rights ◽  
Critical Analysis ◽  
Fundamental Rights ◽  
Equal Rights ◽  
The People ◽  
Peace And Justice ◽  
The World ◽  
Historical Observation ◽  
And Gender ◽  
Short Time

This study presents a critical analysis on the charter of human rights of United Nations, as it was design to promote peace and justice in the world but unfortunately it was not come in true. So the concepts and impacts of human rights presented by UN will be examine in the light of Seerah, and to find out the reasons which caused its failure. It is historical observation that fundamental human rights are very essential for justice and peace in the world. All the peoples have equal rights in all respects. No one is allowed to disregard the rights of others on the basis of race, color and religion. Holy Prophet Muḥammad (PBUH) founded the state of Yathrab and first time in the history declared the fundamental rights of human and vanished the differences based on race, color and gender. Rights for slaves, war prisoners and women were not only defined but were implemented by legal procedure in very short time. In 1948 United Nation declared a charter for human rights which proclaimed that inherent dignity and equal rights are the foundation of freedom, justice and peace of the world. This charter consist on 30 articles regarding individual and common rights of human. This charter of UN guaranteed the security of all fundamental rights of all human being. Although there are number of articles which caused uneasiness among the people of different religions such as article No. 19. Freedom of opinion and express must be observed but it should must be keep in mind that some irresponsible elements of different societies are using this for their criminal purposes as cartoon contest on Prophet Muḥammad (PBUH) by Geert wilders of Holland in recent days caused huge disturbance for world peace. Whereas, the Prophet of Islām ordered the Muslim to respect the clergy of other religions even He (PBUH) halted the Muslims to abuse the idols.

scholarly journals Economic sanctions and human rights: an analysis of competing enforcement strategies in Latin America

2014 ◽  
Vol 57 (1) ◽  
pp. 197-215 ◽  
Author(s):  
Cristiane de Andrade Lucena Carneiro
Keyword(s):  
Human Rights ◽  
Latin America ◽  
Latin American ◽  
Economic Sanctions ◽  
Deterrent Effect ◽  
Rights Protection ◽  
Protection Of Human Rights ◽  
Political Terror ◽  
Using Data ◽  
The Relationship

This article addresses the consequences of economic sanctions for the protection of human rights in Latin America. The literature on sanctions and compliance informs three hypotheses, which investigate the relationship between sanctions and the level of rights protection in two groups of countries: those that were targeted by sanctions and those that were not. Using data from the Political Terror Scale (PTS) and from Freedom House, I find empirical evidence that sanctions do improve the level of protection in countries that were not targeted. This finding can be explained by the deterrent effect attributed to sanctions by the compliance literature, broadly interpreted. The presence of economic sanctions in a given year increases the probability of observing better human rights practices by almost 50%. These results hold for the 12 Latin American countries that were not subject to economic sanctions for the period 1976-2004.

The State of Human Rights in the African Post-Colonial Politics

2021 ◽  
Vol 66 (1) ◽  
pp. 83-106
Author(s):  
Theoneste Bimenyimana
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
Separation Of Powers ◽  
Post Colonial ◽  
Political Ideologies ◽  
Economic Exploitation ◽  
The People ◽  
Current Affairs ◽  
Neoliberal Ideology ◽  
Foreign Politics

"The aim of this study is to identify and critically assess the effects of appropriation of foreign political ideologies and practices in African political systems. This paper argues that there should be no leader, whatever his worth; look on his own personal problems to be exploited for the benefits of western’s Politics. Which will enable the African systems to develop, secondly, argues that Human Rights should be looked at to be an apportioned – responsibility, shared by both the former colonial powers and the current post-colonial political elites, rather than seeing Human rights promotion as yet another excuse to interfere or control other sovereign nations. The study will involve qualitative research involving reviewing other authors' literature, identifying current affairs, and critical assessing the ways in which neo-colonialism affects the different societies in transition from a colonial past to independence. The study is based on the fact that colonized countries, during the Cold War, suffered political oppression, economic exploitation, and social degradation, while alignment either with the capitalist or communist ideology failed. Currently there is a felt pressure to adopt a neoliberal ideology in order to access to have access to aid and investment. The study concludes with recommendations to third world leaders, to look at the people they lead as their responsibility, since no leader, whatever his/her worth, can replace the will of people. This results in a felt need to embrace democracy and such democratic values as: strong institutions, an independent judiciary and the separation of powers, individual and minority rights, and civil rights. Keywords: postcolonial politics, appropriation of foreign politics, human rights, principled values of democracy, the inability of African leaders "

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