Reconciling Rights and Obligations

2003 ◽  
Vol 20 (3-4) ◽  
pp. 140-172
Author(s):  
Pernille Ironside
Keyword(s):  
Human Rights ◽  
Due Process ◽  
Common Law ◽  
International Standards ◽  
Freedom Of Religion ◽  
Northern Nigeria ◽  
Law System ◽  
Constitutional Legality ◽  
Human Rights Norms ◽  
Criminal Matters

This article examines the debate concerning the recent reinstatement of Shari`ah law with respect to criminal matters in Northern Nigeria. The discussion explores the inherent challenges in reconciling the equally entrenched and passionate views of pro-Shari`ah supporters on their right to freedom of religion with those that question its application in terms of human rights norms and obligations, and its constitutional legality. The analysis concludes that Shari`ah laws can coexist with Nigeria’s common law system and remain relevant in the context of Islam, provided that its principles are adapted and modernized to comport with international standards for due process and are interpreted and applied consistently.

Municipal Courts and the International Interpretive Principle: Al-Kateb v Godwin

2020 ◽  
Vol 43 (3) ◽  
Author(s):  
Michael Kirby
Keyword(s):  
Human Rights ◽  
Common Law ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Global Problems ◽  
The Common ◽  
International Human ◽  
Human Rights Norms ◽  
Constitutional Adjudication

This article examines the decision in Al-Kateb v Godwin (2004) 219 CLR 562. It revisits the suggested ‘heresy‘ that international human rights law may influence the interpretation of the Australian Constitution and other legal texts. Accessing universal human rights law, including in constitutional adjudication, was endorsed in the Bangalore Principles on the Domestic Application of International Human Rights Norms 1988. The author suggests that interpreting statutory language in this way is not dissimilar to the common-law principle of interpreting statutes so as to uphold basic rights. But should an analogous approach be permissible in deciding the meaning of constitutional language? Although arguably invoked by the majority of the High Court in Mabo v Queensland [No 2] (1992) 175 CLR 1, in the context of declaring the common-law, so far this approach has not been accepted for constitutional elaboration in Australia. But should this be so in the age of global problems and internationalism?

Legal aspects of fitness for work

2013 ◽  
pp. 21-41
Author(s):  
Gillian S. Howard
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Legal Aspects ◽  
Employment Law ◽  
England And Wales ◽  
Law System ◽  
Lower Courts ◽  
The Common ◽  
The Uk ◽  
The Right

The English legal system is based on the common law. The common law system in England and Wales developed from the decisions of judges whose rulings over the centuries have created precedents for other courts to follow and these decisions were based on the ‘custom and practice of the Realm’. The system of binding precedent means that any decision of the Supreme Court—the new name for the former House of Lords (the highest court in the UK)—will bind all the lower courts, unless the lower courts are able to distinguish the facts of the current case and argue that the previous binding decision cannot apply, because of differences in the facts of the two cases. However, since the UK joined the European Union (EU), the decisions of the European Court of Justice (ECJ) now supersede any decisions of the domestic courts and require the English national courts to follow its decisions. (Scotland has a system based on Dutch Roman law, and some procedural differences although no fundamental differences in relation to employment law.) The Human Rights Act 1998 became law in England and Wales in 2000 (and in Scotland in 1998) in order to incorporate the provisions of the European Convention on Human Rights into UK law. The two most important Articles applicable to employment law are Article 8(1), the right to respect for privacy, family life, and correspondence, and Article 6, the right to a fair trial.

scholarly journals Directions of improvement of normative regulation of judicial status of investigating judge

Legal Ukraine ◽  
2019 ◽  
pp. 38-47
Author(s):  
Svetlana Sharenko
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Due Process ◽  
Control Function ◽  
Legal Regulation ◽  
Private Life ◽  
International Standards ◽  
Judicial Control ◽  
The Right

The article deals with legal regulation of the procedural status of an investigating judge. The author examines the standards that are formulated in the relevant international legal acts, in the practice of the ECHR, in the positions expressed by European experts, and relates to the activities of an investigating judge. They are classified into three groups: (a) Standards defining as a whole the requirements for the place and role of the court in the implementation of criminal justice, and therefore extend to all judicial functions, including judicial control function; b) standards defining the requirements for the organization and implementation of the judicial control function at the stage of pre-trial investigation; c) standards that determine the requirements for observance of human rights and freedoms, and thus serve as guiding points for subjects exercising judicial control powers. Standards defining in general the requirement for the place and role of the court in the implementation of criminal justice (such as the availability of justice, binding judgments, fair trial, due process hearing, equality before the law and the court, parties’ competition, transparency of the judicial system etc.), as well as standards that define requirements for the observance of human rights and freedoms (such as the right to liberty and security of person, the right to respect for private life, the right to protection, etc.) have already been sufficiently studied at the level of special investigations. The subject of this study is international standards, which determine the requirements for the organization and implementation of judicial control at the stage of pre-trial investigation. The author examines the standards of protection of constitutional rights by the court, a standard for clearly demarcating the role of investigator, prosecutor and investigating judge in order to ensure real competition at the stage of pre-trial investigation; the standard of the materiality of the right of restriction; standard of urgency of judicial control; the standard of the prohibition of the participation of an investigating judge in the examination of the merits. Key words: standards of activity of an investigating judge, judicial control powers, judicial control, the investigating judge.

scholarly journals MENGKAJI POLITIK HUKUM KEBEBASAN BERAGAMA DAN BERKEYAKINAN DI INDONESIA

2012 ◽  
Vol 12 (2) ◽  
Author(s):  
Muktiono Muktiono
Keyword(s):  
Human Rights ◽  
Minority Group ◽  
Freedom Of Religion ◽  
Constitutional Court ◽  
International Human Rights ◽  
Religious Minority ◽  
National Legal System ◽  
International Human ◽  
Constitutional Right ◽  
Human Rights Norms

Indonesia has entered the era of human rights characterized by increasingly massive domestication of the international human rights norms in national legal system. In such a situation, in fact, the rights to freedom of religion and of belief for minorities have not received their benefits and instead they become victims. This Article seeks to investigate how it can happen by using the legal politics analysis as perspective. Legal politics here will focus on how the governments of several regimes in Indonesia have used their legislation and policy to regulate matters relating to the rights to freedom of religion and belief. In addition, it will also see how the Constitutional Court contributed to this issue by influencing the legal politics as this Court is the sole authority in interpreting the constitutional right to the freedom of religion and belief thereby affecting its normation and implementation. Key words:  Religious minority group, human rights, legal politics of Indonesia

Interprétation auprès des tribunaux nationaux

FORUM ◽  
2007 ◽  
Vol 5 (1) ◽  
pp. 65-89 ◽  
Author(s):  
Christiane J. Driesen
Keyword(s):  
Human Rights ◽  
Continuing Education ◽  
Common Law ◽  
Civil Law ◽  
The Other ◽  
Cognitive Content ◽  
Bachelor Degree ◽  
Law System ◽  
The Common ◽  
University Course

The aim of this article is to take stock of the situation concerning training of court interpreters, particularly in what is known as the « civil law » countries in Europe as opposed to those with the « common law » system. It reviews existing organisational formats and proposes the two types of teaching that seem best-suited to meet the urgent requirements of the courts. One is in the framework of continuing education; the other a university course leading to a bachelor degree. The author recommends a principle of pedagogical progression taking into consideration the difficulties linked to less spoken languages and stresses the importance of teaching all the traditional interpreting techniques, including specific cognitive content, but at the same time focusing especially on ethical and human rights aspects in the interpreting strategies taught.

scholarly journals Directions of improvement of normative regulation of judicial status of investigating judge

2020 ◽  
pp. 30-45
Author(s):  
Svitlana Sharenko
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Due Process ◽  
Control Function ◽  
Legal Regulation ◽  
Private Life ◽  
International Standards ◽  
Judicial Control ◽  
The Right

he article deals with legal regulation of the procedural status of an investigating judge. The author examines the standards that are formulated in the relevant international legal acts, in the practice of the ECHR, in the positions expressed by European experts, and relates to the activities of an investigating judge. They are classified into three groups: (a) Standards defining as a whole the requirements for the place and role of the court in the implementation of criminal justice, and therefore extend to all judicial functions, including judicial control function; b) standards defining the requirements for the organization and implementation of the judicial control function at the stage of pre-trial investigation; c) standards that determine the requirements for observance of human rights and freedoms, and thus serve as guiding points for subjects exercising judicial control powers. Standards defining in general the requirement for the place and role of the court in the implementation of criminal justice (such as the availability of justice, binding judgments, fair trial, due process hearing, equality before the law and the court, parties' competition, transparency of the judicial system etc.),as well as standards that define requirements for the observance of human rights and freedoms (such as the right to liberty and security of person, the right to respect for private life, the right to protection, etc.) have already been sufficiently studied at the level of special investigations. The subject of this study is international standards, which determine the requirements for the organization and implementation of judicial control at the stage of pre-trial investigation. The author examines the standards of protection of constitutional rights by the court, a standard for clearly demarcating the role of investigator, prosecutor and investigating judge in order to ensure real competition at the stage of pre-trial investigation; the standard of the materiality of the right of restriction; standard of urgency of judicial control; the standard of the prohibition of the participation of an investigating judge in the examination of the merits. Key words: standards of activity of an investigating judge, judicial control powers, judicial control, the investigating judge.

scholarly journals “Glocal” Governance in the OSCE Region: A Research Proposal

2021 ◽  
pp. 287-297
Author(s):  
Anja Mihr
Keyword(s):  
Human Rights ◽  
International Standards ◽  
Customary Law ◽  
Humanitarian Law ◽  
International Human Rights ◽  
City Councils ◽  
Human Rights Treaties ◽  
Decision Making Processes ◽  
Global Norms ◽  
Human Rights Norms

Abstract“Think global, act locally,” is the essence of glocalization and of glocal governance. Glocal governance means that local stakeholders, such as business, civil society, city councils, authorities and activists actively participate in decision-making processes. Different stakeholders, local, international and domestic ones, make decisions on common rules and regulations while operating, controlling, implementing and enforcing them locally—and wherever needed. Many of these decisions are taken in light of and in accordance with global or international standards. Such standards can be universal UN human rights norms that are, for example, enshrined in international human rights treaties and agreements, and WTO trade norms on tax regulation or copyrights and laws. Global norms can be international customary law, such as humanitarian law or the law of the sea, general guidelines, recommendations or rules and standards on security and elections as set by the OSCE.

24. Within the state

2017 ◽  
Author(s):  
Andrew Byrnes ◽  
Catherine Renshaw
Keyword(s):  
Human Rights ◽  
Common Law ◽  
International Human Rights ◽  
General Law ◽  
National Human ◽  
Protection Of Human Rights ◽  
The Common ◽  
Human Rights Norms ◽  
National Human Rights Institutions ◽  
Domestic Law

This chapter examines the state’s role in promoting and protecting human rights, and is organized as follows. Section 2 deals with substantive protections: the nature, status, and scope of human rights protections under national law. These include the incorporation or other use of international human rights norms in domestic law, constitutional guarantees of rights, human rights legislation, protection under the general law, including the concept of the rule of law, and the common law. Section 3 considers institutional protections of human rights. It briefly outlines the types of institutions that commonly play a role in the implementation, monitoring, and protection of human rights, including the courts, the executive, and the legislature, as well as mechanisms such as ombudsmen and national human rights institutions.

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