Interpreting Human Rights Law

Author(s):  
Sandra Fredman

On the face of it, judges are tasked with applying the law, not making it. Yet human rights are framed in general terms, requiring judges to draw on external values to interpret. Some regard judicial interpretation as gaining legitimacy only when true to the original intention of the drafters; or the text’s natural meaning. Others regard the human rights instruments as necessarily responsive to changing times. This is the ‘living tree’ or purposive approach. This chapter explores different approaches to interpretation of human rights in a comparative context. Section II examines judges’ own values. Section III discusses originalism or the intention of the drafters; section IV considers the natural meaning of the text; while section V examines the ‘living tree’ or purposive approach. Section VI explores the notion of transformative constitutionalism. The final part draws on the ‘bounded deliberative democracy’ developed in earlier chapters to point to the way forward.

2011 ◽  
Vol 60 (1) ◽  
pp. 125-165 ◽  
Author(s):  
Israel de Jesús Butler

AbstractThe continuous transfer of authority from the national sphere to inter-governmental organizations gives rise to an increasing risk that States may be mandated by their obligations under these organizations to take measures that are inconsistent with their obligations under International Human Rights Law. Drawing on the approaches of various international, regional and national jurisdictions, this article explores two possible models for restructuring International Law that could ensure that human rights obligations remain effective. The ‘international constitutional’ approach would ensure that human rights are enshrined within the ‘constitutional’ instruments of IGOs, preventing incompatible rules from emerging. The ‘parochial’ approach would ensure that human rights as protected at the national or regional level would take precedence over conflicting international obligations.


2020 ◽  
pp. 118-139
Author(s):  
Paul Blokker

This chapter discusses a renewed interest in a sociology of constitutions in recent years. This interest has emerged not least due to the significantly changing nature of constitutions and constitutionalism, not in the last place as a result of apparent constitutional qualities inherent in legal regimes beyond state borders. A historically and sociologically informed approach helps to study European integration as a legal and constitutional project, and highlights its fragility and tensions, increasingly visible in recent years. The chapter first introduces a sociological view of constitutions and constitutionalism in general terms, and then goes on to discuss the multi-faceted process of constitutionalisation and judicialization in postwar Europe from a sociological angle, with particular emphasis on the depoliticizing and at the same time contested nature of this process. The final part of the chapter reflects on contemporary issues related to the problematic dimensions of the constitutionalising and judicialising process, including a backlash against universal rights and supranational law in many European societies.


2019 ◽  
pp. 305-318
Author(s):  
Andrew Clapham

Human rights are said to be ill-adapted to times of armed conflict or for dealing with exceptional terrorist threats. Are human rights limited by the applicability of other branches of international law including the laws of war? Are there limits to the work human rights can usefully do in situations of threatened violence when their strict application is said to put lives at risk? This chapter tackles some of the contemporary arguments surrounding the limitations of human rights law in the face of the competing demands of winning the war and killing terrorists. It focuses on killings and detention inside and outside armed conflict. It also asks whether there are limits to the obligations we can impose on armed groups.


2021 ◽  
pp. 283-315
Author(s):  
Richard Martin

The focus of the empirical account of human rights in Part IV is on the suspect’s right to liberty in the context of police custody. In keeping with the style adopted in Part III, the discussion that follows seeks to closely analyse how particular aspects of police practices and decision-making interact with human rights law standards. The aim in this chapter is to explore how the three statutory safeguards established in PACE to protect the suspect’s right to liberty have fared in the face of organizational pressure to detect and ‘clear up’ crime. Using the three due process safeguards established in PACE to form a framework for this chapter’s analysis, the chapter explores how officers apply, dismiss, interpret and reconstruct each of these safeguards in their everyday work. Once again, the richness of this analysis, specifically its appreciation for how law and practice do (or do not) interact, is enhanced by paying close attention to the development of lines of authority in the case law that have, it is argued, watered down the legal standards officers must apply. This analysis of the case law is based on recent judgments from the High Court and Divisional Court of Northern Ireland, as well as from the Court of Appeal in England and Wales.


2020 ◽  
Vol 24 (2) ◽  
pp. 653
Author(s):  
André Luiz Pereira Spinieli

O debate sobre o pluralismo jurídico no contexto político e social latino-americano não é recente, de modo que suas percepções foram renovadas a partir do movimento neoconstitucionalista operado no continente, responsável por desencadear alternativas epistêmicas para se pensar a efetividade dos direitos humanos e dos direitos de cidadania, tudo a partir da lógica de emancipação social e descolonialidade, como possibilidade de rompimento com o constitucionalismo tradicional, de cunho conservador, hegemônico e colonialista. Em termos gerais, como uma das respostas à concepção juspositivista, o pluralismo jurídico surge como modelo de pensamento para a práxis dos direitos humanos, em face de uma sociedade na qual impera a lógica das exclusões concretas em contrariedade às inclusões abstratas. Dessa forma, tomando por base a abordagem bibliográfica, este trabalho propõe oferecer reflexões a respeito do atual estado da cultura de direitos humanos instalada na América Latina, com enfoque nas contribuições epistemológicas advindas da teoria críticados direitos humanos e do pluralismo jurídico wolkmeriano.Palavras-chave: Pluralismo jurídico. Direitos humanos. Cultura constitucional. América Latina. Teoria crítica dos direitos humanos.LEGAL PLURALISM AS AN EPISTEMOLOGICAL ALTERNATIVE FOR THE CULTURE OF HUMAN RIGHTS SINCE THE LATIN AMERICAN CONTEXTAbstractThe debate on legal pluralism in the Latin American political and social context is not recent, so that their perceptions were renewed from the neo-constitutionalist movement operated on the continent, responsible for triggering epistemic alternatives to think about the effectiveness of human rights and human rights of citizenship, all based on the logic of social emancipation and decoloniality, as a possibility of breaking with traditional constitutionalism, of a conservative, hegemonic and colonialist nature. In general terms, as one of the answers to the juspositivist conception, legal pluralism emerges as a model of thoughtfor the practice of human rights, in the face of a society in which the logic of concrete exclusions prevails in opposition to abstract inclusions. Thus, based on the bibliographic approach, this work proposes to offer reflections on the current state of human rights culture in Latin America, focusing on the epistemological contributions arising from the critical theory of human rights and legal Wolkmer’s pluralism.Keywords: Legal Pluralism. Human rights. Constitutional culture. Latin America. Critical theory of human rights.


AJIL Unbound ◽  
2017 ◽  
Vol 111 ◽  
pp. 514-518
Author(s):  
Moria Paz

We live now in the midst of a massive global crisis of mobility. An ever-growing population finds itself refugees displaced from the legitimate jurisdiction of any territorial state. In the face of this pressing emergency, influential voices argue that international human rights law should be placed “at the center” of international efforts to meet this challenge. But today's calamity is set against the backdrop of a universal human rights regime that is not only thin but, more importantly, incomplete. When it comes to cross-border mobility, human rights law ensures that states allow individuals to leave their state, but alas does not require that any other state let them enter and remain. Such entry and residence rights are required only for a country's own nationals (however nationality is defined). And so, many refugees who have exercised their human right to exit come up against a functional block to mobility: they have no place to stop moving. Some of them may nonetheless find a state willing to take them in. In that case, they may enjoy meaningful protection, but this protection exists only by virtue of a state's domestic policies and has little to do with international human rights.


2021 ◽  
Vol 29 ((S2)) ◽  
pp. 249-274
Author(s):  
Abdulkadir Bolaji

Just as the Universal Declaration of Human Rights of 1948 marked the beginning of contemporary international human rights law and the subsequent adoption of regional human rights instruments, so the Stockholm Declaration of 1972 marked the genesis of a rights-based approach to the protection of environment. Since then, human rights have become a legal weapon exerted in the strive to protect the environment and enhance access to environmental justice. Hence, it is not a mere theoretical discourse that environmental degradation affects the enjoyment of basic human rights. It has now become recognized that human rights such as the right to life and many others can only be enjoyed in a polluted free environment. It is against this background that this paper examines how the right to peaceful enjoyment of property as guaranteed in international and regional instruments on human rights has been construed to foster environmental protection. To achieve this, interpretations through decided cases are examined for a proper evaluation of judicial attitude and willingness in this respect.


Author(s):  
Sandra Fredman

The first part of this book sets out the themes which form the analytic framework for subsequent chapters: the role of comparative materials; the meaning of human rights; the relationship between civil and political rights and socio-economic rights; the role of adjudication; and approaches to judicial interpretation. Subsequent chapters apply these themes to some of the most challenging issues in comparative human rights law. The coverage is not intended to be complete, but aims to bring comparative human rights to life, asking similar questions across several jurisdictions and a range of human rights topics. Judges faced with acutely difficult questions must refer to their textual mandate, the fundamental values informing the text, their own interpretive philosophy, and their perception of their role relative to the legislature. But increasingly, their decision-making can be enriched by considering, in a deliberative sense, how judges in other jurisdictions have faced these questions.


Sign in / Sign up

Export Citation Format

Share Document