scholarly journals Fundamental Rights Seen Through the “Pluralistic Interpretive Box”

2021 ◽  
Vol 2 (2) ◽  
pp. 65-79
Author(s):  
Tanja Karakamisheva-Jovanovska
Keyword(s):  
Human Rights ◽  
Judicial Discretion ◽  
Court Decisions ◽  
Legal Interpretation ◽  
Scientific Interest ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Protection Of Human Rights ◽  
Interpretive Method ◽  
The Impact

Interpretation, or the judicial understanding of the legal acts in the process of protection of the human rights, is becoming increasingly interesting and controversial, both from an aspect of the applied interpretation technique (which interpretation method is applied by the judge in a specific case and why), as well as from an aspect of the legal opportunism/legitimacy of the interpretation. It is a fact that so far, neither the European, nor the national legal theories and practice have offered coordinated systematic approach regarding the application of the legal interpretation methods, which often leads to different interpretation of the legal norms by the national and the European courts when applied in similar or identical legal situations for protection of the human rights. It is considered that the different interpretation of the legal documents by the judges endangers the protection of the human rights, but also the legal security of the citizens. Judicial discretion in choosing an interpretive method in a particular case by the national, or by the courts in Luxembourg and Strasbourg further complicates the already complex procedure of protection of human rights, which directly creates new problems instead of solving the existing ones. The "pluralistic interpretive box" is continuously filled with new and new cases from different approaches by different courts in the process of protection of human rights, which leads to increased scientific interest for a more detailed consideration of this issue. The growing scientific interest in the impact of the legal interpretation on the (non) equality of the human rights protection is the main reason for writing this paper, in which I will try to explain the connection between the three different, but still related issues encountered in the multilevel system of human rights protection in Europe. The first issue addressed in the paper concerns the most common methods of legal interpretation applied in the national and European court proceedings. The second issue concerns the search for a consistent answer to whether and how much legitimacy and legality the court decisions made by applying judicial discretion have when the interpretive method in judicial decision-making is chosen, and the third issue refers to finding an answer to the impact of such court decisions on the functionality and efficiency of the multi-level system of protection of human rights, that is, to what extent such court decisions have a positive or negative effect on the human rights protection. Given that each national court has its own instruments and techniques of interpretation by which the judges make their decisions, the need to study their causality and effectiveness is more than evident.

scholarly journals INTERNATIONAL LEGAL INSTRUMENTS IN THE FIELD OF BIOETHICS AND THEIR IMPACT ON PROTECTION OF HUMAN RIGHTS

2020 ◽  
Vol 73 (7) ◽  
pp. 1554-1560
Author(s):  
Viktor V. Horodovenko ◽  
Vitalii M. Pashkov ◽  
Larysa G. Udovyka
Keyword(s):  
Human Rights ◽  
Rapid Development ◽  
Research Process ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Legal Standards ◽  
Analysis And Synthesis ◽  
Biomedical Technologies ◽  
Protection Of Human Rights ◽  
The Impact

Introduction: A rapid development of biomedicine, genetics, pharmacology, transplantation and biotechnology has posed a number of problems to humanity, in particular, with regard to human rights protection in healthcare. These problems solution requires considering the achievements and propositions of biology, medicine, ethics and law. International legal standards in the field of bioethics are of significance in development of national states regulations on bioethics and biotic legislation. Aim: To investigate the impact of international legal instruments in the field of bioethics on protection of human rights. Materials and methods: In the research the international legal instruments and documents in the field of healthcare and bioethics were used. Civilizational, axiological, dialectical, systemic and comparative legal methods as well as systematization, analysis and synthesis were decisive in the research process. Conclusions: Legal instruments in the field of biomedical technologies (directives and regulations) are mainly advisory by nature. In many cases, the problems arising in biotechnology are resolved through establishment and involvement of national supervision bodies: councils (commissions, committees) in bioethics as well as courts. An important role in protection of human rights in the field of biotechnology is played by the ECHR the decisions of which are dynamic, based on the Convention and consideration of national legislations. At the same time, a number of problems remain unresolved because of constant development of biomedical technologies, necessity to take into account the latest achievements and discoveries as well as all types and methods of applying of genetic engineering to humans. In general, insufficient attention is paid to the problems of medical biotechnologies application both at the international and national levels.

scholarly journals The Role of African Court on Human and Peoples’ Right for Human Rights Protection: The Case of Libyan Crises

2020 ◽  
Vol 7 (1) ◽  
pp. 38-44
Author(s):  
Getahun Kumie Antigegn
Keyword(s):  
Human Rights ◽  
Qualitative Methodology ◽  
Human Rights Violations ◽  
Court Decisions ◽  
Humanitarian Law ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Protection Of Human Rights ◽  
The Government

The emergence of regional human rights systems depicts one of the greatest achievements in the internationalization of human rights. The foundation of the charter paved the way for the birth of the court thereafter. The African Court is established by virtue of the 1998 protocol to the Charter and the court is built upon an arsenal of protective and remedial techniques. The establishment of the court has reset the stage and created a new platform for the protection of human rights in Africa. The cardinal objective of the paper is to investigate the role of African Court on human and Peoples’ rights protection in Libya Crises taking the case of Saif Al Islam Gaddafi. The paper has utilized qualitative methodology. The government of Libya responded with brutal force against civilian protesters in contravention of international human rights and humanitarian law. The security force of the government of Libya killed many protesters as well. This situation intensified human rights violations and enforced many of the peoples to displace. The court issued an important ruling in March 2011, ordering provisional measures against Libya in the armed conflict in its territory. Libyan government denied the claims of human rights violations in its territory and showed its willingness to subject itself to criminal investigations by the Court if necessary. The issue of the fund, independence, commitment and competence of judges to interpret mandate and jurisdiction, the willingness of the states to support and to abide by court decisions, and powers of the concerned body to enforce court decisions hampered the court from being effective. Generally, unless African States act in good faith with respect to the decisions of the African Human Rights Court, the court becomes no more significant.

Regional Human Rights

2021 ◽  
Keyword(s):  
Human Rights ◽  
International Human Rights ◽  
Protective Mechanisms ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Protection Systems ◽  
Protection Of Human Rights ◽  
International Human ◽  
Local Languages ◽  
Specific Country

Regional human rights mechanism are now in place covering nearly all five continents with the notable exception of Australia. Regional and international human rights protection are not meant to thwart each other. On the contrary, the regional protection of human rights is intended to back up and strengthen the international one by translating human rights into local languages and supporting them with additional protective mechanisms like commissions and courts that enforce regional human rights documents. In this volume, five experts from various continents will introduce regional human rights protection systems in Europe, Africa, Asia, Latin America and Australia providing an overview of the regional protections vis-à-vis the international one and then contextualising it in specific country context.

scholarly journals Politics Of Law Human Rights Protection In Indonesia

2020 ◽  
Vol 2 (4) ◽  
pp. 513
Author(s):  
Pradikta Andi Alvat
Keyword(s):  
Human Rights ◽  
Political Development ◽  
Legal Protection ◽  
Secondary Data ◽  
Three Dimensions ◽  
Reform Era ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Source Data ◽  
Protection Of Human Rights

This study aims to know how political development of legal protection of human rights in Indonesia and political objectives of the legal protection of human rights itself. The research method using normative juridical approach. Specification of the research is descriptive. Provide an overview and critical analysis and conclusions of the research object. Source data using secondary data sources through books and legislation. The data collection method through the study of literature. Analysis of data using qualitative approach. The results showed that the political development of the legal protection of human rights has undergone discourse tight since the formulation of the Constitution and found basic juridical-constitutional is ideal since the reform era with the birth of Chapter XA in the constitution on human rights, born Law of Human Rights, and the formation of the court of HAM. The purpose of a political human rights protection law contains three dimensions, namely the dimensions of philosophical, sociological dimension and juridical dimension.Keywords: Protection Of Human Rights; Political Law; State Law.

scholarly journals The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence in the Polish Social Safeguard System

2017 ◽  
Vol 12 (2) ◽  
Author(s):  
Magdalena Tabernacka
Keyword(s):  
Domestic Violence ◽  
Human Rights ◽  
Violence Against Women ◽  
Council Of Europe ◽  
Protective Function ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Heated Debate ◽  
Protection Of Human Rights ◽  
The Common

The ratification of the Council of Europe Convention on preventing and combating violence against women and domestic violence in Poland was preceded by a heated debate. From the very beginning it was be object of political battles between the conservative and liberal circles. Culturally and socially conditioned position of women has influenced its operation and the scope of its implementation. The Convention is a universally binding tool which guarantees the protection of human rights in events of violence against the woman and children. The case of this Convention in Poland proofs the existence of a universal European understanding of human rights protection standards. The Convention thus has a protective function not only for individuals but also, in a broader context, for the common European cultural identity.

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.

Australian Bills of Rights and the ‘New Commonwealth Model of Constitutionalism’

2013 ◽  
Author(s):  
Simon Evans ◽  
Julia Watson
Keyword(s):  
Human Rights ◽  
High Court ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Key Features ◽  
The Uk ◽  
High Court Of Australia ◽  
The Impact

This chapter examines the influence of the new Commonwealth model of human rights protection (exemplified by the UK Human Rights Act 1998) on the form of the two Australian statutory Bills of Rights, and then considers the impact of Australia's distinctive legal culture and constitutional structure on the operation of these instruments. In particular, it examines the impact of culture and structure in the decision of the High Court of Australia in R. v Momcilovic [2011] HCA 34; (2011) 280 A.L.R. As a result of that case, key features of the Australian Bills of Rights now diverge from the dominant UK approach, a divergence so striking that it may no longer be possible to identify the Australian Bills of Rights as exemplars of the new Commonwealth model.

25. International Human Rights Law

2018 ◽  
Author(s):  
Nigel Rodley
Keyword(s):  
Human Rights ◽  
International Human Rights Law ◽  
Political Rights ◽  
Political Factors ◽  
International Protection ◽  
Human Rights Protection ◽  
Cultural Rights ◽  
Rights Protection ◽  
Human Rights Treaties ◽  
Protection Of Human Rights

This chapter considers the background to, and current developments concerning the manner in which international law has engaged with the protection of human rights, including both civil and political rights and economic, social, and cultural rights. It looks at historical, philosophical, and political factors which have shaped our understanding of human rights and the current systems of international protection. It focuses on the systems of protection developed by and through the United Nations through the ‘International Bill of Rights’, including the Universal Declaration of Human Rights, the UN human rights treaties and treaty bodies, and the UN Special Procedures as well as the work of the Human Rights Council. It also looks at the systems of regional human rights protection which have been established.

scholarly journals U.S. Multinationals and Human Rights: A Theoretical and Empirical Assessment of Extractive Versus Nonextractive Sectors

2020 ◽  
pp. 000765032092897
Author(s):  
Krishna Chaitanya Vadlamannati ◽  
Nicole Janz ◽  
Indra de Soysa
Keyword(s):  
Human Rights ◽  
Multinational Corporations ◽  
Status Quo Bias ◽  
Democratic Institutions ◽  
Host Countries ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Human Rights Abuse ◽  
Negative Impacts ◽  
The Impact

The consequences of foreign direct investment (FDI) for human rights protection are poorly understood. We propose that the impact of FDI varies across industries. In particular, extractive firms in the oil and mining industries go where the resources are located and are bound to such investment, which creates a status quo bias among them when it comes to supporting repressive rulers (“ location-bound effect”). The same is not true for nonextractive multinational corporations (MNCs) in manufacturing or services, which can, in comparison, exit problematic countries more easily. We also propose that strong democratic institutions can alleviate negative impacts of extractive FDI on human rights (“ democratic safeguard effect”). Using U.S. FDI broken up into extractive and nonextractive industries in 157 host countries (1999–2015), we find support for these propositions.1 Extractive FDI is associated with more human rights abuse, but nonextractive FDI is associated with less abuse, after controlling for other factors, including concerns about endogeneity. We find also that the negative human rights impact of extractive FDI vanishes in countries where democratic institutions are stronger. Our results are robust to a range of alternative estimation techniques.

The Increasingly Marginal Appreciation of the Margin-of-Appreciation Doctrine

2006 ◽  
Vol 7 (6) ◽  
pp. 611-623 ◽  
Author(s):  
Ignacio de la Rasilla del Moral
Keyword(s):  
Human Rights ◽  
Cultural Relativism ◽  
European Convention ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Margin Of Appreciation ◽  
Rome Convention ◽  
Related Notion ◽  
Protection Of Human Rights ◽  
Sensitive Issues

What song the Syrens sang, or what name Achilles assumed when he hid himself among the women, although puzzling questions are not beyond all conjecture.What is so fundamental in terms of the protection of human rights in Europe that it requires the same standards for all countries and what, by contrast, would be better dealt with by each State's organs in line with verbigratia Michael Walzer's-related notion of “thick morality”?. Where should the line be drawn between unity and diversity notwithstanding the resulting risk of human rights cultural relativism associated to the latter?. On what grounds could the axiomatic universality of human rights possibly be connoted in a continent which prides itself on possessing the most developed regional system for the protection of human rights world-wide in view of the resulting risk of legal contagion to other systems for the protection of human rights and, even, to general international law that such a practice can trigger?. At the end of the day, these are the sort of questions that the study of the margin-of- appreciation doctrine raises. The Trojan Horse-like character of the Strasbourg's judge-made margin-of-appreciation doctrine within the European human rights protection system has long since bothered human rights lawyers. Cases of reliance on this review doctrine have been generally criticised as denials of justice for individuals, abdications by the Court of its duty of adjudication in difficult or sensitive issues or as a judicial diluting technique of the strict conditions laid down in the European Convention of Human Rights. This line of criticism, aimed at what from the viewpoint of some occupants of the bench is seen as “a well established and legitimate part of the convention's jurisprudence”, has been reinforced by the entry of 21 new Eastern and Central European contracting parties to the Council of Europe following the 1989-1991 events. With a current membership of 46 States, all of which have ratified the 1950 Rome Convention, it is further feared that the doctrine will increasingly become an open door for abusive limitations in the exercise of human rights in states who traditionally leaned towards human rights cultural relativism. Against this background, I will briefly look into the technical criteria used by Strasbourg's judicial interpreters to factually implement this “much maligned notion” or, as one commentator has put it, this “manière pseudo-technique d'évoquer le pouvoir discrétionnaire que les organes de Strasbourg ont estimé reconnu aux Etats par la Convention dans certains cas”. I will, secondly, provide a basic overview of the general doctrinal positions one can adopt regarding this long debated question.

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