scholarly journals From Judicial Transplants to Judicial Translations: Constitutional Courts in Southern Africa – A Comparative Review

2019 ◽  
Vol 19 (1) ◽  
pp. 74-124
Author(s):  
Cosmas Emeziem
Keyword(s):  
Southern Africa ◽  
African Region ◽  
Constitutional Courts ◽  
Economic Rights ◽  
Legal Transplant ◽  
Legal Norms ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Comparative Review

Summary The contemporary legal landscape in Southern Africa and its responsiveness to the challenges in the region can be explained in many ways. Part of the explanation has been the idea of legal transplants—which entails borrowing and adapting legal norms, and structures from different legal systems in order to resolve legal problems in the region. The end of apartheid and other rapid changes in the region—political, racial, economic and social—has directly placed the courts on the frontlines of human rights protection especially on socio-economic rights and other overarching concerns of law reform. The adoption of constitutional courts in some of the countries, and consequent judicial activist turn in the jurisprudence of courts in the region generally; has inserted the courts into the mainstream of policy deliberations. Thus, this paper claims that legal transplant per se does not explain the full reality of what is going on in the region—in terms of nomativization, transmission, adoption, and adaptation of legal ideas within the respective systems in the region. It further claims that a mesh of different understandings and approaches to legal comparison and development is more suitable as a method of studying pluralist complex systems as we see in the region. Hence, the notion of judicial translation—the judiciary forming the membrane, purveyor and capillary of legal transmission—as an essential lens through which we can better view and understand the legal evolution in the region. Taking the institution of courts – particularly constitutional courts—and examining their jurisprudence as epitomized in some of their decisions of finality—the work seeks to begin a meaningful deliberation about the role of courts in law, social change, and policy in the region. It is divided into three major parts for ease of discourse. It is hoped that this would be a fitting exordium into the more significant meaning of legal transplant through judicial intervention in otherwise predominantly policy questions in the Southern African region.

Quasi-constitutional court of human rights for Europe? Comments on Geir Ulfstein

2021 ◽  
Vol 10 (1) ◽  
pp. 175-185
Author(s):  
WOJCIECH SADURSKI
Keyword(s):  
Human Rights ◽  
Public Reason ◽  
Constitutional Court ◽  
Legal Systems ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Short Comment

AbstractThis short comment offers two additional arguments, missing from Geir Ulfstein’s account, which may bolster the case for constitutionalisation of the ECtHR. The first is about the ‘pilot judgments’ through which the Court addresses systemic deficits in national legal systems and thus ensures a minimal synchronisation of human rights protection throughout the CoE system. The second manifestation of constitutionalisation of the ECHR system is the increasing role of the ECtHR in the implementation of its own judgments. Ultimately, the legitimacy for the constitutional ambitions of Strasbourg Court should be located primarily in the argumentative resources of the court and in its pursuit of ‘public reason’.

scholarly journals General and Particular Approaches to Implementation of theEuropean Convention on Human Rights

2018 ◽  
Vol 55 ◽  
pp. 248-292
Author(s):  
VLADIMÍRA PEJCHALOVÁ GRÜNWALDOVÁ
Keyword(s):  
Human Rights ◽  
National Level ◽  
Case Law ◽  
European Convention ◽  
Constitutional Courts ◽  
The Czech Republic ◽  
Human Rights Protection ◽  
Rights Protection ◽  
National Courts ◽  
European Court

AbstractThis article deals with the implementation, at the national level, of European human rights protection standards as enshrined in theEuropean Convention on Human Rights(ECHR) and interpreted by the European Court of Human Rights (ECtHR). It discusses the principles of interpretation of theECHRby the ECtHR, the interaction and mutual dialogue between the ECtHR and national courts, and the approach of the latter to interpretation and application of the case law of the ECtHR. Using the concrete examples of France and the Czech Republic as case studies, it is shown to what extent and how European constitutional courts take into account and apply the letter of the Convention and its interpretation by the ECtHR.

scholarly journals In a Poor State: The Long Road to Human Rights Protection on the Basis of Social Condition

1969 ◽  
pp. 513 ◽  
Author(s):  
Lynn A. Iding
Keyword(s):  
Human Rights ◽  
Financial Burden ◽  
Social Condition ◽  
Poor People ◽  
Economic Rights ◽  
Human Rights Protection ◽  
Goods And Services ◽  
Rights Protection ◽  
The Government ◽  
The Public Sphere

This article examines how poverty in Canada might be alleviated with different forms of human rights protection that include protection from discrimination on the basis of social condition. Social condition discrimination could include denial of goods and services based on stereotypes of poverty, or could include disadvantage resulting from actual inability to pay. If based only on stereotypes, the author argues, social condition would be differentiated from other grounds of discrimination. Poor people need to be protected from the prejudice of others as well as the effects of being poor, and this may be accomplished by incorporating full social condition protection in both human rights legislation and the Canadian Charter of Rights and Freedoms. Canada has international obligations concerning poverty, and those obligations are sometimes recognized by the courts in their decisions. However, economic rights have been consistently rejected as having Charter protection, perhaps out of fear that courts would be commanding the government to create or alter social programs. The author concludes that the Charter might still be the most effective place for economic rights, placing the initial onus more on the public sphere, which would at the same time consequently distribute some of the financial burden in the private sphere.

scholarly journals Constructing Historical Justice Discourse in Lithuanian and Russian Press in Lithuania: The Case of Holocaust

2018 ◽  
Vol 29 (4) ◽  
Author(s):  
Andrius Marcinkevičius
Keyword(s):  
World War Ii ◽  
Public Discourse ◽  
Historical Narrative ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Historical Justice ◽  
The Holocaust ◽  
Structuring Knowledge ◽  
Historical Past

World War II in general and Holocaust in particular are important topics of the debate in the Lithuanian public discourse. Due to that the Lithuanian and Russian press is seen by the author not just as a significant source of information, but also as a peculiar tool for structuring knowledge about Lithuania’s historical past. The article reveals that the perception of Holocaust history is changing in the Lithuanian and Russian press in recent years by rethinking of the dominant Lithuanian historical narrative and representing diverse approaches to the role of Lithuanians in collaboration with the Nazi regime. The Holocaust Discourse is constructed as important experience in considering and strengthening the human rights protection discourse in Lithuania as well. The article is based on selected texts published in 2016 by online daily DELFI and printed newspapers in the Lithuanian and Russian languages (150 publications in total).

scholarly journals THE ROLE OF THE GENERAL SUBJECTS OF HUMAN RIGHTS PROTECTION DURING COVERT INVESTIGATIVE (SEARCH) ACTIVITIES (ACTIONS)

2021 ◽  
pp. 21-30
Author(s):  
А. А. Коваль
Keyword(s):  
Human Rights ◽  
Foreign Policy ◽  
Key Words ◽  
Public Administration ◽  
State Policy ◽  
Criminal Proceedings ◽  
Key Words Human ◽  
Human Rights Protection ◽  
Rights Protection

This article analyzes the system of state bodies and officials who are more or less authorized (obliged) to ensure human rights, including in the conduct of covert investigative (search) actions. According to the tasks performed by each of such subjects, they are divided into two groups: general (those that determine the basis of domestic and foreign policy of the state and public administration strategy, have relevant coordination powers and solve constitutional and legislative strategic tasks in the specified area, or implement state policy in this direction, one of the powers of which is to approve or ensure human rights) and special (subjects of criminal proceedings who are directly involved in the appointment, conduct, and evaluation of the results of the CISA, and who are charged with the protection, protection (enforcement) of human rights in criminal proceedings, including the CISA. Key words: human rights, covert investigative (search) actions, guarantees of rights and freedoms, court investigative judge, participants in criminal proceedings.

scholarly journals The Role of Ombudsman Institutions in Defending the Rights of Military Personnel

2019 ◽  
Vol 25 (2) ◽  
pp. 206-209
Author(s):  
Alexandru Stoian
Keyword(s):  
Human Rights ◽  
Armed Forces ◽  
Public Authorities ◽  
Human Rights Protection ◽  
Exclusive Jurisdiction ◽  
Rights Protection ◽  
Military Command ◽  
Almost All ◽  
The Military

Abstract The Ombudsman type institutions are appointed to investigate individuals’ complaints against public authority and represent important actors in human rights protection system and in implementing democratic controls of the security system. These institutions have the task of interrupting human rights and the fundamental freedoms of armed force personnel, as well as ensuring the over-protection and prevention of defamation of armed forces. At the European level, the institutions of the Ombudsman are particularly important for ensuring the accountability of public authorities outside the contradictory environment of the courts. Ombudsman’s general institutions are mandated to receive complaints about all or almost all state organs, and their attributions concern all public services and government branches, including the armed forces. In addition, the ombudsman institutions with exclusive jurisdiction are independent and have exclusive jurisdiction over the armed forces, usually civilian and independent of the military command chain. Also, the Ombudsman institutions operating within the army can be identified and these are not completely independent, most often subordinated to the defense ministry and receive money from the defense budget.

European Court of Human Rights

2003 ◽  
Vol 40 ◽  
pp. 309-322 ◽  
Author(s):  
Luzius Wildhaber
Keyword(s):  
Human Rights ◽  
Separation Of Powers ◽  
International System ◽  
Human Rights Protection ◽  
Rights Protection ◽  
European Court ◽  
Recent Developments ◽  
Protection Of Human Rights ◽  
Evolutionary Interpretation

SummaryThe aim of the European Court of Human Rights is to bring about a situation in which individuals are able to get effective guarantees of their rights within their national legal systems. With this in mind, the author reviews some of the recent developments in cases before the court relating to evolutionary interpretation of the provisions of the convention, the role of the separation of powers in ensuring the protection of freedoms under the Convention for the Protection of Human Rights and Fundamental Freedoms, and the notion of human dignity within the convention framework. The author also considers the growing case load before the court and the need for reform and concludes by pointing out that the European system is the most effective international system yet for securing human rights protection.

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