CONVENTIONALITY CONTROL OF DOMESTIC “ABUSE OF POWER”: MAINTAINING HUMAN RIGHTS AND DEMOCRACY

2017 ◽  
Vol 26 (1) ◽  
pp. 243-264
Author(s):  
Yota Negishi
Keyword(s):  
Human Rights ◽  
Separation Of Powers ◽  
Domestic Abuse ◽  
Constitutional Courts ◽  
International Human Rights ◽  
Abuse Of Power ◽  
Media Pluralism ◽  
Specific Limitation ◽  
Fair Balance ◽  
Individual Human

Human rights courts often behave as constitutional courts especially when they have the ability to control the “separation of powers” in States in accordance with human rights conventions (“conventionality control”). This study comments on the latest “abuse of power” jurisprudence of the European and Inter-American courts of human rights, which embraces rich implications for re-evaluating general and specific provisions that place democratic limitations on human rights violations. The first section confirms that the courts have recently implemented conventionality control of “abuse of power” against judicial independence, voices of political opposition and media pluralism, in all such unfair exercises of authority adverse influences are exerted on individual (human rights) and collective (democracy) aspects. The next section justifies or criticises the courts’ decisions on the pro-democratic fair balance tests (legality, legitimacy and proportionality) embodied in human rights conventions’ general and specific limitation clauses, which have rarely been scrutinised until recent cases of “abuse of power”. In essence, this study shows that value-oriented momenta in their practical decisions can contribute to a future mapping of constitutionalism beyond the State (ius constitutionale commune), limiting domestic abuse of kratos (power) of the demos (people) in terms of international human rights sources.

scholarly journals Regional Constitutional Justice in the Context of Russia’s Aspiration to be a Rule of Law State

2018 ◽  
Vol 43 (4) ◽  
pp. 351-382
Author(s):  
Jane Henderson ◽  
Marina L. Belykh
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Legal Status ◽  
Separation Of Powers ◽  
State Power ◽  
The Other ◽  
Constitutional Courts ◽  
Constitutional Justice

This paper examines regional constitutional justice in Russia as a microcosm of the struggle for the judicial branch of state power to assert its importance, in particular in relation to separation of powers. We consider the situation of republican constitutional courts and regional charter courts which have been established in some places to oversee compliance with the republican constitution or regional charter. We note that the limited number of these courts contrasts strongly with the widespread institution of the regional ombudsman (plenipotentiary for human rights). We also see that in recent years courts in some regions have encountered a pushback from the other branches of state power. The strength of the resulting defence of the courts’ legal status gives us some cause for optimism that the principles of separation of powers and rule of law are being strongly supported in some regions.

Global libertarianism: how much public morality does international human rights law allow?

2021 ◽  
pp. 1-24
Author(s):  
Eric Heinze
Keyword(s):  
Human Rights ◽  
Common Ground ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Cultural Traditions ◽  
International Monitoring ◽  
History Of ◽  
International Human ◽  
Individual Human

Abstract International human rights specialists and libertarian philosophers have rarely pursued meaningful exchanges, but this paper probes some of their common ground. In recent years, leading international monitoring bodies have developed a principle described here as the ‘Libertarian Principle of Human Rights’ (LPHR). It runs as follows: Governments cannot legitimately recite public morals as a sufficient justification to limit individual human rights. That principle might seem obvious in many societies today, but throughout history, including the history of liberalism, any notion that certain individual interests must trump religious or customary beliefs has stood as the rare exception. The seemingly Western and secular suggestion of a libertarian principle inherent within human rights may seem at odds with the view that human rights ought to reflect diverse cultural traditions; however, LPHR underscores an anti-authoritarianism, which, it is argued, must form part of any serious conception of human rights. LPHR can be substantiated even for highly controversial rights, such as LGBTQ+ rights, suggesting that it applies a fortiori to more settled rights.

Linguistic Rights of Indigenous Peoples

De Jure ◽  
2020 ◽  
Vol 11 (2) ◽  
Author(s):  
Mohammed Sanka ◽  
◽  
◽  
Keyword(s):  
Human Rights ◽  
International Law ◽  
Indigenous Peoples ◽  
Freedom Of Expression ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Linguistic Rights ◽  
The Right ◽  
Individual Human

Language plays an essential role in one’s ability to access the life opportunities offered by a society through employment, healthcare, jurisprudence, voting, education, media, etc. Linguistic rights have been designed under international human rights law to address the right to choose the language or languages for communication while accessing such opportunities. Even so, the individually held linguistic right, which evolves from general individual human rights, such as the right to freedom of expression, to privacy, to a fair trial, etc., comes with less consequences as compared to the collective linguistic rights of groups. This paper, while exploring how international law deals with linguistic rights generally, shall focus on the linguistic rights of indigenous peoples. By so doing, the author discusses various international legal instruments which envisage collective linguistic rights of indigenous peoples, highlights the challenges faced by indigenous peoples with regards to such rights, and concludes by suggesting ways by which these challenges can be surmounted.

scholarly journals The World Court of Human Rights Feasibility Study

2018 ◽  
Vol 9 (1) ◽  
pp. 37-47 ◽  
Author(s):  
Lubica Saktorová
Keyword(s):  
Human Rights ◽  
International Human Rights ◽  
Human Rights Protection ◽  
Rights Protection ◽  
The Past ◽  
Theoretical Position ◽  
The World ◽  
Key Issues ◽  
International Human ◽  
Individual Human

Abstract The idea of the World Court of Human Rights was first envisioned in 1947 along with other institutions designed to create a system capable of the worldwide protection of individual human rights. The focus of the present study is to determine key issues of the prospective establishment of the World Court by an examination of its theoretical position among the United Nations bodies, regional and another inter-governmental human rights organisation. Analysis of the function and mechanisms of the current international human rights protection system would lead to deliberation on the prospective substantial and procedural competences of the World Court, the enforcement mechanism, jurisdiction and related benefits. The objective of the final part is to discuss challenges regarding its political and legal feasibility. Without the visionaries of the past, there would be no substantial system of human rights today. The World Court of Human Rights is a vision for the future.

Universal declaration of human rights as a source of universal international legal standards of human rights

2020 ◽  
pp. 36-42
Author(s):  
Uliana Kuzenko
Keyword(s):  
Human Rights ◽  
Legal Regulation ◽  
Universal Declaration ◽  
Human Being ◽  
Legal Basis ◽  
International Human Rights ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Legal Standards ◽  
International Human

Purpose. The purpose of the article is to analyze the Universal Declaration of Human Rights as an international legal instrument, which for the first time formulated the foundations of modern democratic status of a human being and its fundamental rights and freedoms. Methodology. The methodology involves a comprehensive study of theoretical and practical material on the subject, as well as a formulation of relevant conclusions and recommendations. During the research, the following methods of scientific cognition were used: dialectical, terminological, formal and logical, systemic and functional. Results. The study found that the main features of the Universal Declaration of Human Rights as a source of international legal mechanism for the protection of human rights are: 1) it is a fundamental, foundational and universal international human rights act of the United Nations; 2) it establishes a system of fundamental human rights; 3) it defines a common system of fundamental international human rights standards; 4) it determines the principles of legal identity of a human being; 5) it determines the fundamental basis and principles of international legal regulation in the field of human rights protection; 6) it acts as an international legal basis for the adoption of the latest legislation on human rights protection; 7) it acts as an international legal basis for the codification of human rights legislation. Scientific novelty. The study found that the Universal Declaration of Human Rights points to the natural origin of human rights, which must be binding on all States and for the whole population, regardless of citizenship, in order to ensure the human rights protection in a democratic and rule-of-law State. Practical importance. The results of the study can be used to improve Ukrainian legislation on human rights and fundamental freedoms.

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