scholarly journals The Historical Origins of the Proportionality Doctrine as a tool of Judicial Review: A Critical Analysis

Author(s):  
Dr. Syed Raza Shah Gilani ◽  
Dr. Ilyas Khan ◽  
Shehla Zahoor

It is a fact that the doctrine of Militant Democracy is essential to protect society from the threat of terrorism. On the other hand, we should not ignore the element of its interpretive nature, which means that there is an apprehension that the states having a poor human rights record may use it to achieve their ulterior motives while damaging the fundamental rights of the individual. In Europe, the ECtHR and domestic courts at the national level are duty-bound to save these fundamental rights. Hence, the doctrine of proportionality is an essential tool to check the militant democracy measures on the fundamental freedoms and human rights. To understand the authenticity of the doctrine of proportionality, it is essential to establish its origin and stages of evolution, because this will enable me to explore the use of this doctrine, which is adopted by many nations, before analyzing its use in the UK’s legal system.

2014 ◽  
Vol 14 (1) ◽  
Author(s):  
Victor Baz�n

RESUMEN En el trabajo se enfocar�, en general, la actualidad y la prospectiva de la interrelaci�n de la Corte Interamericana de Derechos Humanos �Corte IDH� y las cortes supremas o tribunales constitucionales latinoamericanos. Ya en particular, se abordar� la importancia del �control de convencionalidad� principalmente a cargo de los jueces nacionales, que consiste en verificar la adecuaci�n de las normas jur�dicas internas que aplican en casos concretos a la Convenci�n Americana sobre Derechos Humanos �CADH� y a los est�ndares interpretativos de la Corte IDH. Asimismo, se argumentar� sobre la importancia de trazar una l�nea de cooperaci�n entre los tribunales internos y la Corte IDH y de intensificar un di�logo jurisprudencial entre ambas jurisdicciones en orden a que los tribunales locales lleven adelante una interpretaci�n conforme a la CADH y a los pronunciamientos de la Corte IDH, pero que correlativamente �sta tenga presente las observaciones que desde los contextos jurisdiccionales nacionales se formulen a los criterios del tribunal interamericano. Ello as�, para fortalecer cualitativamente la tutela multinivel de los derechos humanos y disminuir los riesgos de eventuales dificultades pr�cticas en la aplicaci�n del �control de convencionalidad�. La aconsejable cooperaci�n entre ambas instancias jurisdiccionales no apunta a una relaci�n jer�rquica entre ellos, sino a una conexi�n cooperativa en la hermen�utica pro persona de los derechos humanos. Es que las respectivas Constituciones Pol�ticas de los Estados latinoamericanos, con la �fuerza normativa� que les es inherente, y los instrumentos internacionales sobre derechos humanos (principalmente, la CADH y la interpretaci�n que de �sta realiza la Corte IDH), conforman un cuerpo jur�dico que orienta su vigencia hacia un id�ntico sustrato axiol�gico: la salvaguardia de los derechos fundamentales, expresi�n directa de la dignidad de la persona. PALABRAS CLAVE Derechos fundamentales. Control de convencionalidad. Corte Interamericana de Derechos Humanos. Tribunales internos. Di�logo jurisprudencial cr�tico. ABSTRACT Generally speaking, the paper will focus on today and the prospect of the interrelationship between the Inter-American Court of Human Rights (IACHR) and national courts. In particular, the work will address the importance of �conventionality control� mainly by domestic judges, which consists of verifying the adequacy of internal legal rules that apply in specific cases, to the American Convention on Human Rights (ACHR) and interpretive standards of the IACHR. Besides, the author will argue about the importance of drawing a line of cooperation among domestic courts and the IACHR and intensifying a case-law dialogue between both jurisdictions in order to take forward an interpretation according to the ACHR and the pronouncements of the IACHR, but at the same time it keep in mind the comments that the national legal contexts put to the criteria of the Inter-American Court. That is so qualitatively strengthen multi-level protection human rights and reduce the risk of possible practical difficulties in implementing the "control of conventionality". The desirable cooperation between the two jurisdictions (Inter-American and domestic) does not point to a hierarchical relationship between them, but to a cooperative connection in �pro persona� hermeneutics of human rights. This is because the Constitutions of the Latin-American States, with the �normative power� inherent in them, and international human rights instruments (mainly the ACHR and the interpretation that around it performs the IACHR), give life to a legal block that directs its force to an axiologically identical substrate: safeguarding fundamental rights, direct expression of the dignity of the individual. KEY WORDS: Fundamental Rights. Conventionality control. Inter-American Court of Human Rights. Domestic courts. Critical jurisprudential dialogue.


Author(s):  
Jan Wouters ◽  
Michal Ovádek

This chapter evaluates the language and concepts surrounding human rights in the EU. It begins by investigating the dichotomous language of ‘human’ and ‘fundamental’ rights. Even a brief look at the EU Treaties makes immediately clear that both ‘human’ and ‘fundamental’ rights are mentioned in various parts of the text, most often as part of references to, on the one hand, the European Convention on Human Rights and Fundamental Freedoms and the EU Charter of Fundamental Rights, on the other. What is less obvious from reading the Treaties is whether there is in fact a difference between the two terms or whether they are synonymous. The chapter then highlights the human rights narratives the EU tells about itself. It also looks at the close relationship of human rights with the associated concepts of the rule of law and democracy, both generally and in the EU context.


2017 ◽  
pp. 18-37
Author(s):  
DUBRAVKO LJUBIC

The history of mankind is a continuous struggle for the affirmation of man as an individual with an inviolable fundamental rights sphere, as opposed to the collectivity or some higher power. From the earliest days one had to ask and to win their autonomy, and they had to prove that they are beings with human dignity that deserve their physical and ethical individuality. The idea of the existence of the fundamental rights sphere is a legacy of the struggle against absolutism, and to respect the physical and mental integrity of every person and the protection of property rights. Fundamental rights in their implementation defend anyone to interfere with the protected sphere of the dignity of every human being. Their upgrade is formed by freedoms which authorize individuals to express their preferences and interests outside the existential sphere. Therefore, human rights and freedoms allow the individual not only to be a loyal citizen, but affect their environment and social organization, and thus affect the process of expanding personal freedoms. With constitutional affirmation of human rights and fundamental freedoms, a need emerged to define the content of these terms. In the literature, one can find a set of definitions that are more or less extensively trying to cover their ambiguity2. It is my opinion that in an attempt at defining the concepts of “human rights” and “fundamental freedoms” it is appropriate to start from the indications of their legal origin. The development of democratic societies to the current civilization level has enabled the codification of the fundamental rights sphere at the national and international level. The catalog of fundamental human rights and freedoms in principle is an integral part of the highest legal act of a country3, and sometimes constitutions point to the recognition of human rights and freedoms determined by international legal acts4. In attempting to define the observed concepts it seems justified to stress that fundamental human rights and freedoms belong to every individual, regardless of his personal characteristics and status and that those rights and freedoms affirm the individual as a human and social being. It is also necessary to point out that the declaration of fundamental human rights and freedoms in the highest legal acts of some social community commits the state government to refrain from interfering in the protected sphere. In conclusion, when defining the analyzed content it is necessary to note that human rights and freedoms in principle are not absolute categories. These are constitutional activities to be limited following the existence of the rights of another individual of the same content, or the rights of others, arising from the fact of living together. Following these settings the definition of content of concepts of “constitutional law” and “constitutional freedoms” would have its common and special part. Common components of those institutes are contained in the fact that this is the highest legal act of a society or by this act defined norm of international law, established inviolable autonomous sphere of each member of society, which enables them recognition as human and social beings and that they enjoy regardless of their status and other personal characteristics, protected from encroachment by any governmental body. In doing so, the concept of “constitutional rights” should be more linked to the protected goods that are immanent to a person as a human being and granted to them but by the very fact of existence. By contrast, constitutional freedoms would include a protected sphere of the individual in social contacts. Constitutional freedoms would be an institutionally protected sphere of the individual, as a result of his life in the community, which gives them a choice in social positioning and which can only be restricted by rights of another individual of the same content, or the rights of other people arising from the fact that they are living together.


2010 ◽  
Vol 27 (3) ◽  
pp. 1-23 ◽  
Author(s):  
Marie-Luisa Frick

Against the background of the trend of Islamizing human rights on the one hand, as well as increasing skepticism about the compatibility of Islam and human rights on the other, I intend to analyze the potential of Islamic ethics to meet the requirements for vitalizing the idea of human rights. I will argue that the compatibility of Islam and human rights cannot be determined merely on the basis of comparing the specific content of the Islamic moral code(s) with the rights stipulated in the International Bill of Rights, but by scanning (different conceptions of) Islamic ethics for the two indispensable formal prerequisites of any human rights conception: the principle of universalism (i.e., normative equality) and individualism (i.e., the individual enjoyment of rights). In contrast to many contemporary (political) attempts to reconcile Islam and human rights due to urgent (global) societal needs, this contribution is solely committed to philosophical reasoning. Its guiding questions are “What are the conditions for deriving both universalism and individualism from Islamic ethics?” and “What axiological axioms have to be faded out or reorganized hierarchically in return?”


2018 ◽  
Vol 25 (2) ◽  
pp. 188-207 ◽  
Author(s):  
Jorg Sladič

Legal privilege and professional secrecy of attorneys relate to the right to a fair trial (Article 6 European Convention on Human Rights (ECHR)) as well as to the right to respect for private and family life (Article 8 ECHR). The reason for protecting the lawyer via fundamental rights is the protection of fundamental rights of the lawyer’s clients. All legal orders apply legal privileges and professional secrecy; however, the contents of such are not identical. Traditionally there is an important difference between common and civil law. The professional secrecy of an attorney in civil law jurisdictions is his right and at the same time his obligation based on his membership of the Bar (that is his legal profession). In common law legal privilege comprises the contents of documents issued by an attorney to the client. Professional secrecy of attorneys in civil law jurisdictions applies solely to independent lawyers; in-house lawyers are usually not allowed to benefit from rules on professional secrecy (exceptions in the Netherlands and Belgium). On the other hand, common law jurisdictions apply legal professional privilege, recognized also to in-house lawyers. Slovenian law follows the traditional civil law concept of professional secrecy and sets a limited privilege to in-house lawyers. The article then discusses Slovenian law of civil procedure and compares the position of professional secrecy in lawsuits before State’s courts and in arbitration.


2018 ◽  
Vol 1 (1) ◽  
pp. 104-127
Author(s):  
Nicoletta Varani ◽  
Enrico Bernardini

Abstract Planetary interdependence makes the task of states and international organizations to guarantee security inside and outside national borders ever more urgent. The tendency is to widen the space from national to international and to conceive of security as multidimensional for the satisfaction of human needs, assumed as priority needs with respect to those of the States. The old concept of national security must today confront the new concept of human security cultivated within the United Nations, which places the fundamental rights of the individual and of people at the centre of attention and lays the foundations for overcoming the traditional politics of power. The concept of human security emphasises the security of the individual and his protection from political violence, war and arbitrariness. It takes account of the strong correlation between peace policy, human rights policy, migration policy and humanitarian policy. The contribution provides, through a series of social indicators such as the Global Peace Index (GPI), Corruption Perceptions Index (CPI) and the World International Security and Policy Index (WISPI), a framework on risk, security, human rights violations in the African continent and examines some significant case studies related to sub-Saharan Africa.


Author(s):  
Inam Ullah Wattoo ◽  
Yasir Farooq

This study presents a critical analysis on the charter of human rights of United Nations, as it was design to promote peace and justice in the world but unfortunately it was not come in true. So the concepts and impacts of human rights presented by UN will be examine in the light of Seerah, and to find out the reasons which caused its failure. It is historical observation that fundamental human rights are very essential for justice and peace in the world. All the peoples have equal rights in all respects. No one is allowed to disregard the rights of others on the basis of race, color and religion. Holy Prophet Muḥammad (PBUH) founded the state of Yathrab and first time in the history declared the fundamental rights of human and vanished the differences based on race, color and gender. Rights for slaves, war prisoners and women were not only defined but were implemented by legal procedure in very short time. In 1948 United Nation declared a charter for human rights which proclaimed that inherent dignity and equal rights are the foundation of freedom, justice and peace of the world. This charter consist on 30 articles regarding individual and common rights of human. This charter of UN guaranteed the security of all fundamental rights of all human being. Although there are number of articles which caused uneasiness among the people of different religions such as article No. 19. Freedom of opinion and express must be observed but it should must be keep in mind that some irresponsible elements of different societies are using this for their criminal purposes as cartoon contest on Prophet Muḥammad (PBUH) by Geert wilders of Holland in recent days caused huge disturbance for world peace. Whereas, the Prophet of Islām ordered the Muslim to respect the clergy of other religions even He (PBUH) halted the Muslims to abuse the idols.


2015 ◽  
pp. 36-51
Author(s):  
RUDOLF DUR SCHNUTZ

The recent move towards the individual access to constitutional justice is a progress for protection of human rights in Europe. The explicit purpose of these efforts is to settle human rights issues on the national level and to reduce the number of cases at the Strasbourg Court. Such individual complaints have to be designed in a way that makes them an effective remedy which has to be exhausted before a case can be brought before the European Court of Human Rights. This paper points out the current state of these improvements on the national level in a difficult context on the European level and the recommendations of the Venice Commission in this regard.


2021 ◽  
Vol 4 (1) ◽  
pp. 120-130
Author(s):  
Surya Prasad Timilsena

 The present article reveals the role and policy of Armed Police Force Nepal in safeguarding human rights. One of the primary missions of the APF Nepal is to protect the citizens from criminal activity and criminal elements and to maintain public order. This duty includes protecting the rights of every citizen. Armed forces have the duty to protect the individual human rights of every person they encounter. This is an affirmative duty, meaning the police services cannot knowingly ignore or intentionally fail to act when a human rights violation is observed. The Armed Police Force has mandated tasks related to protection, promotion, respect and fulfillment of human rights from various aspects. The research has reached in conclusion: Human rights are moral principles or norms that describe certain standards of human behavior and are regularly protected as a legal right in municipal and international law. They are commonly understood as inalienable, universal and indivisible fundamental rights to which a person is inherently entitled simply because she or he is a human being. To achieve this objective APF Nepal has adopted zero tolerance in Human Rights violations and following national and international human rights instrument that have been adopted by Nepal.


2021 ◽  
pp. 327-340
Author(s):  
William A. Schabas

Some fundamental rights, variously described as ‘solidarity rights’, ‘people’s rights’ or ‘third generation rights’ are not fully reflected in the human rights instruments. Indeed their place within human rights law remains somewhat controversial although that does not imply that they are not customary in nature. Among them are the right to peace, the right to a healthy environment, the right of peoples to self determination, and the right to development. The main distinction between these rights and other human rights relates to the jurisdiction of human rights bodies. They have a collective dimension that is not present in the same way with the other categories of human rights.


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