The Internationalization Of Human Rights And The Importance Of Normative Dialogues Between International And National Courts

2017 ◽  
Vol 17 (2) ◽  
pp. 137
Author(s):  
Mariane Morato Stival ◽  
Marcos André Ribeiro ◽  
Daniel Gonçalves Mendes da Costa
Keyword(s):  
Human Rights ◽  
The Other ◽  
Human Rights Protection ◽  
Rights Protection ◽  
National Courts ◽  
European Court ◽  
Differences Of Opinion ◽  
Rights Discourse ◽  
Different Characteristics ◽  
Human Rights Discourse

This article intends to analyze in the context of the complexity of the process of internationalization of human rights, the definitions and tensions between cultural universalism and relativism, the essence of human rights discourse, its basic norms and an analysis of the normative dialogues in case decisions involving violations of human rights in international tribunals such as the European Court of Human Rights, the Inter-American Court of Human Rights and national courts. The well-established dialogue between courts can bring convergences closer together and remove differences of opinion on human rights protection. A new dynamic can occur through a complementarity of one court with respect to the other, even with the different characteristics between the legal orders.

scholarly journals Law, Cosmopolitan Law and the Protection of Human Rights

2008 ◽  
Vol 4 (2) ◽  
pp. 241-264 ◽  
Author(s):  
Sarah Sorial
Keyword(s):  
Human Rights ◽  
Legal Order ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Positive Law ◽  
Protection Of Human Rights ◽  
Rights Discourse ◽  
Cosmopolitan Law ◽  
Human Rights Discourse ◽  
Subjective Rights

In Between Facts and Norms, Habermas articulates a system of rights, including human rights, within the democratic constitutional state. For Habermas, while human rights, like other subjective rights have moral content, they do not structurally belong to a moral system; nor should they be grounded in one. Instead, human rights belong to a positive and coercive legal order upon which individuals can make actionable legal claims. Habermas extends this argument to include international human rights, which are realised within the context of a cosmopolitan legal order. The aim of this paper is to assess the relevance of law as a mechanism for securing human rights protection. I argue that positive law does make a material difference to securing individual human rights and to cultivating and augmenting a general rights culture both nationally and globally. I suggest that Habermas' model of law presents the most viable way of negotiating the tensions that human rights discourse gives rise to: the tensions between morality and law, between legality and politics, and between the national and international contexts of human rights protection.

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 Chinese Discourse on Human Rights in Global Governance

2016 ◽  
Vol 1 (2) ◽  
pp. 192-213 ◽  
Author(s):  
Pinghua Sun
Keyword(s):  
Human Rights ◽  
Global Governance ◽  
Chinese Culture ◽  
International Consensus ◽  
Human Rights Protection ◽  
Rights Protection ◽  
International Discourse ◽  
Rights Discourse ◽  
Human Rights Discourse ◽  
Important Basis

China’s discourse on human rights has a very rich and colorful content and the construction thereof has its own particular characteristics. Approaches to examine it should be adopted to understand thoroughly both the past and the present and both Chinese and Western methods of integration of theory into practice. Many important human rights factors are embodied in traditional Chinese culture and Confucianism became an important basis of the international consensus on morality. The Chinese representative, Peng-chun Chang made historical contributions to the construction of the international human rights protection system. These represent the core texts in constructing China’s human rights discourse, which will play an important role in China’s struggle for authority in the international discourse on human rights and dominance in global governance.

scholarly journals “Droit européen“ à la liberté religieuse et paradigmes des relations État- religions dans l’Europe contemporaine: une cacophonie épineuse

2021 ◽  
Author(s):  
Alessandro Ferrari
Keyword(s):  
Human Rights ◽  
Religious Freedom ◽  
The Other ◽  
Multilevel System ◽  
Rights Protection ◽  
National Models ◽  
Rights Discourse ◽  
The One ◽  
Human Rights Discourse ◽  
The Relationship

SOMMAIRE: 1. Introduction: paradigmes de relations et droit à la liberté religieuse, de l’identité à la tension - 2. Des paradigmes des relations État-Églises au droit à la liberté religieuse - 3. La force attractive des paradigmes dans le scénario européen contemporain - 4. Les paradigmes des relations État-Églises dans la nouvelle arène internationale - 5. Conclusion: une citoyenneté inachevée. The “European Right” to Religious Freedom and Paradigms of State-Religion Relations in Contemporary Europe: a thorny cacophony ABSTRACT: The article examines the dialectic between European national models of religious freedom and the paradigm of religious freedom shaped in the international order and in particular by the human rights discourse. The analysis of the relationship between the modern - national-centered - and the contemporary - individual-centered - paradigm of religious freedom reveals, on the one hand, the difficult but inevitable osmosis between legal systems in a multilevel system of rights protection and, on the other hand, the deep transformation of religious freedom in contemporary Europe.

scholarly journals CIVIL CLAIM IN A CRIMINAL PROCEEDING IN UKRAINE AS A MEANS OF GUARANTEE AND PROTECTION OF INDIVIDUALS’ RIGHTS

2020 ◽  
pp. 174-177
Author(s):  
O. A. Tymoshenko
Keyword(s):  
Human Rights ◽  
Justice System ◽  
National Level ◽  
The State ◽  
Criminal Proceedings ◽  
Human Rights Protection ◽  
Rights Protection ◽  
National Courts ◽  
Technical Requirements ◽  
European Court

The article deals with analyzing the state of the civil claim scientific research in criminal proceedings in Ukraine and summarizing it. It was determined the relevance of scientific rethinking of the phenomenological foundations of a civil claim in criminal proceedings. It is proved that the importance of the mechanism of criminal justice has the issue of legal support of the institute of civil claim, as an important component of guaranteeing and protecting the rights and freedoms of citizens. First of all, this is explained by the importance of a civil claim in criminal proceedings, its actual role that a civil claim plays in the justice system, ensuring the protection of the violated rights of citizens. On the basis of the state critical analysis of a civil claim legal support in criminal proceedings in Ukraine, it was determined its components and given their characteristics, which include: 1) the subjective component of the legal relations relating to civil claim in criminal proceedings in Ukraine; 2) the procedural issues of filing and considering a civil claim; 3) legal and technical requirements relating to the form and content of the civil claim. It was made and justified the provisions concerning the prospects of improving the civil claim mechanism functioning in criminal proceedings in Ukraine. Transformation of scientific understanding and practical perception of civil claim in criminal proceedings as a means of securing and protecting human rights and freedoms has been proved, on the basis of which the directions of improving the functioning of the said legal institute in Ukraine are distinguished, namely: 1) enhancing the role and importance of the European Court of Justice’ s activities human rights in extending his practice to litigation in criminal proceedings in Ukraine; 2) strengthening the mechanisms of human rights protection at the domestic (national) level in accordance with the requirements of international law, which are a component of civil claim in criminal proceedings; 3) improve the procedure for enforcement of the decisions of the national courts of Ukraine in the part related to civil claim in criminal proceedings, etc.

scholarly journals Procedure for applying to the European Court of Human Rights

2021 ◽  
pp. 37-45
Author(s):  
Alexandru Sosna ◽  
◽  
Vadim Colceanov ◽  
Keyword(s):  
Human Rights ◽  
The Other ◽  
European Convention ◽  
Reasonable Time ◽  
Human Rights Protection ◽  
Republic Of Moldova ◽  
Rights Protection ◽  
European Court ◽  
The Republic ◽  
The One

In this article, the authors explore the theoretical and practical aspects of the procedure for addressing the European Court of Human Rights. Many citizens of the Republic of Moldova apply to the European Court of Human Rights for the protection of violated rights. For several years and as a result of various factors, the Court has been overwhelmed by the number of individual applications. However, the vast majority of these applications (over 95%) are rejected, without being examined on the merits, because they did not meet one of the admissibility criteria provided by the European Convention on Human Rights. This situation creates a double frustration. On the one hand, having the obligation to respond to each request, the Court does not have the opportunity to focus, within a reasonable time, on cases that require a substantive examination, and this is of no real use to litigants. On the other hand, the actions of tens of thousands of applicants are rejected without appeal, often after years of waiting. The proposals of the authors, who must increase the guarantees of human rights protection, are very important.

Human Rights Diffusion in North Korea: The Impact of Transnational Legal Mobilization

2017 ◽  
Vol 5 (1) ◽  
pp. 175-203
Author(s):  
Patricia GOEDDE
Keyword(s):  
Human Rights ◽  
North Korea ◽  
Legal Mobilization ◽  
Human Rights Protection ◽  
The North ◽  
Domestic Legislation ◽  
Evidence Collection ◽  
Rights Discourse ◽  
Human Rights Discourse ◽  
The Impact

AbstractThis article asks how legal mechanisms are employed outside of North Korea to achieve human rights diffusion in the country; to what extent these result in human rights diffusion in North Korea; and whether measures beyond accountability can be pursued in tandem for more productive engagement. Specifically, it examines how the North Korean government has interacted with the globalized legal regime of human rights vis-à-vis the UN and details the legal processes and implications of the UN Commission of Inquiry report, including domestic legislation, and evidence collection. While transnational legal mobilization has gathered momentum on the accountability side, it is significantly weaker in terms of achieving human rights protection within North Korea given the government’s perception of current human rights discourse as part of an externally produced war repertoire. Thus, efforts to engage the North Korean population and government require concurrent reframing of human rights discourse into more localized and relatable contexts.

scholarly journals The Convention on the Rights of Persons with Disabilities and the social model of health: new perspectives

2014 ◽  
pp. 74 ◽  
Author(s):  
Penelope Weller
Keyword(s):  
Mental Health ◽  
Human Rights ◽  
Social Model ◽  
Persons With Disabilities ◽  
People With Mental Illness ◽  
European Court ◽  
The Social ◽  
Rights Discourse ◽  
Human Rights Discourse ◽  
Health Laws

Contemporary mental health laws are embedded in basic human rights principle, and their ongoing evolution is influenced by contemporary human rights discourse, international declarations and conventions, and the authoritative jurisprudence of the European Court of Human Rights (ECrtHR). The<em> Convention on the Rights of Persons with Disabilities</em> (CRPD) is the most recent expression of international human rights applicable to people with disability including people with mental illness.3 It provides a fresh benchmark against which to assess the human rights compatibility of domestic mental health laws.

scholarly journals Interim measures as human rights protection instruments: to the problem statement

2021 ◽  
pp. 539-544
Author(s):  
Siuzanna Mnatsakanian
Keyword(s):  
Human Rights ◽  
National Level ◽  
Human Rights Violations ◽  
Human Rights Protection ◽  
Rights Protection ◽  
European Court ◽  
Core Issue ◽  
Great Practice ◽  
Interim Measures ◽  
Human Rights Violation

Conceptual approaches to defining the nature and the scope of interim measures implementation as an instrument of human rights protection at international and national level are analyzed. The widespread use of interim measures as international standard of urgent respond to alleged violations of human rights has not led to the implementation of the legal institute concerned at the national level. Accordingly, this analysis aimed at defining the grounds of interim measures as human rights protection instrument application to be used by the state as an immediate response to human rights violations and possible violations. European Court of Human Rights has a great practice of interim measures granting. Interim measures are granted by the Court only in clearly defined conditions, namely where there is a risk that serious violations of the Convention might occur. A high proportion of requests for interim measures are inappropriate and are therefore refused. Besides, interim measures are applied upon request of the applicant claiming about alleged violations of his or her human rights. At the national level interim measures should/may be granted upon request of the applicant or by the duty-bearer’s initiative to prevent possible human rights violations. The grounds of interim measures granting should also be defined – the best international practice should be used taking into account the Ukrainian context. Another core issue analyzed is defining duty-bearers – subjects enforced to grant interim to prevent abuse in the sphere concerned. It is obvious that court shall be the only authority to resolve the substantive case of alleged human rights violation. However, public and local authorities shall be enabled to grant interim measures to prevent the possible violations. With this, the scope and the sphere of its application at the national level shall be broader in comparison with the case law of the European Court of Human Rights.

scholarly journals Intertwined but Different. The Heterologous In Vitro Fertilization Case before the European Court of Human Rights and the Italian Constitutional Court

2017 ◽  
Vol 9 (1) ◽  
pp. 34-67
Author(s):  
Antonia Baraggia ◽  
Maria Elena Gennusa
Keyword(s):  
Human Rights ◽  
In Vitro Fertilization ◽  
Constitutional Court ◽  
Vitro Fertilization ◽  
Human Rights Protection ◽  
Rights Protection ◽  
European Court ◽  
Protection Systems ◽  
Shed Light

Abstract International and constitutional law, originally distinct realms with limited areas of intersection, are getting closer and closer, particularly in the European landscape within the human rights protection field, where these mere contacts between the two systems have become intersections and overlaps. The present article will try to shed light on the still unsolved and problematic issues to which overlapping human rights protection systems give rise, by focusing on an analysis of the heterologous in vitro fertilization case, where both the Strasbourg Court and the Italian Constitutional Court delivered relevant judgments on very similar matters (ECtHR’s S.H. Judgment; Judgment No. 162/2014 from the Italian CC). Such analysis revealed useful in highlighting connections and disconnections between the different levels of protection of rights, and led us to argue that the development of a multilevel protection of rights is also, at least partially, a tale of Courts, each competing to have the last word on human rights adjudication.

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