Arturo J. Carrillo
- Published in print:
- 2006
- Published Online:
- May 2006
- ISBN:
- 9780199291922
- eISBN:
- 9780191603716
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199291926.003.0015
- Subject:
- Political Science, International Relations and Politics
This paper examines how international law contributes to contemporary understandings of transitional justice with respect to reparations for victims of gross and systematic human rights abuses. The ...
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This paper examines how international law contributes to contemporary understandings of transitional justice with respect to reparations for victims of gross and systematic human rights abuses. The author surveys the jurisprudence of the Inter-American Court of Human Rights through 2003 to determine how the Court’s practice can be used to guide the formulation of reparatory policies during political transition. Recognizing that the direct application of Inter-American case law to situations of mass atrocity is not always viable in practice, the author analyzes regional human rights jurisprudence, particularly that relating to compensation, to determine what role the Court’s rules can and cannot play as a reference for policymakers and societies faced with the challenge of designing a reparations program. He concludes that while landmark Court decisions like Velásquez Rodríguez provide general normative guidance, there are significant obstacles to extending to the transitional justice context many of the measures, amounts, and formulas relied upon by the Court in awarding compensation. The fairness of compensation outside the courtroom cannot be determined with reference to predetermined rules, but depends on the factual context in which the measures are adopted including the number of victims involved. A better source of comparative inspiration is found in the Court’s growing practice of adopting non-monetary reparations measures to deal with moral harm.Less
This paper examines how international law contributes to contemporary understandings of transitional justice with respect to reparations for victims of gross and systematic human rights abuses. The author surveys the jurisprudence of the Inter-American Court of Human Rights through 2003 to determine how the Court’s practice can be used to guide the formulation of reparatory policies during political transition. Recognizing that the direct application of Inter-American case law to situations of mass atrocity is not always viable in practice, the author analyzes regional human rights jurisprudence, particularly that relating to compensation, to determine what role the Court’s rules can and cannot play as a reference for policymakers and societies faced with the challenge of designing a reparations program. He concludes that while landmark Court decisions like Velásquez Rodríguez provide general normative guidance, there are significant obstacles to extending to the transitional justice context many of the measures, amounts, and formulas relied upon by the Court in awarding compensation. The fairness of compensation outside the courtroom cannot be determined with reference to predetermined rules, but depends on the factual context in which the measures are adopted including the number of victims involved. A better source of comparative inspiration is found in the Court’s growing practice of adopting non-monetary reparations measures to deal with moral harm.
Roger Masterman and Ian Leigh (eds)
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780197265376
- eISBN:
- 9780191760426
- Item type:
- book
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197265376.001.0001
- Subject:
- Law, Human Rights and Immigration
More than a decade after it came into force in October 2000 the Human Rights Act 1998 continues to divide opinion. Its supporters argue that the Act represents a subtle reconciliation of human rights ...
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More than a decade after it came into force in October 2000 the Human Rights Act 1998 continues to divide opinion. Its supporters argue that the Act represents a subtle reconciliation of human rights protection with the UK's parliamentary democratic tradition and that it has given rise to a sophisticated interplay between the judiciary and elected politicians. Critics of the Act, on the other hand, charge it with failing in one of two opposing directions — either by ushering in judicial supremacism or as an exercise in futility. Unloved by the political elite, the Act's future is once again under review. This book takes stock of the impact of the Human Rights Act. The relationship of the UK courts with the European Court of Human Rights in Strasbourg is examined as is the corresponding question of the status of Convention jurisprudence within domestic courts. The effect of the Act on democratic governance is assessed by chapters addressing the issues of dialogue and the impact of the Act on established constitutional principle. From a practitioner viewpoint the revolutionary impact on legal argument and reasoning is analysed. A comparison of the Westminster model with other schemes for rights protection adopted in New Zealand, Hong Kong, and some Australian states is undertaken to measure the international impact of the Human Rights Act. Finally, the question of further constitutional reform is discussed in chapters giving a Scottish perspective, examining the processes of enacting rights protections and on options for the ‘British Bill of Rights’.Less
More than a decade after it came into force in October 2000 the Human Rights Act 1998 continues to divide opinion. Its supporters argue that the Act represents a subtle reconciliation of human rights protection with the UK's parliamentary democratic tradition and that it has given rise to a sophisticated interplay between the judiciary and elected politicians. Critics of the Act, on the other hand, charge it with failing in one of two opposing directions — either by ushering in judicial supremacism or as an exercise in futility. Unloved by the political elite, the Act's future is once again under review. This book takes stock of the impact of the Human Rights Act. The relationship of the UK courts with the European Court of Human Rights in Strasbourg is examined as is the corresponding question of the status of Convention jurisprudence within domestic courts. The effect of the Act on democratic governance is assessed by chapters addressing the issues of dialogue and the impact of the Act on established constitutional principle. From a practitioner viewpoint the revolutionary impact on legal argument and reasoning is analysed. A comparison of the Westminster model with other schemes for rights protection adopted in New Zealand, Hong Kong, and some Australian states is undertaken to measure the international impact of the Human Rights Act. Finally, the question of further constitutional reform is discussed in chapters giving a Scottish perspective, examining the processes of enacting rights protections and on options for the ‘British Bill of Rights’.
Emilie M. Hafner-Burton
- Published in print:
- 2013
- Published Online:
- October 2017
- ISBN:
- 9780691155357
- eISBN:
- 9781400846283
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691155357.003.0004
- Subject:
- Law, EU Law
This chapter provides an overview of the most important nuts and bolts of the international human rights legal system, which generally resides within the structures of the United Nations. It first ...
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This chapter provides an overview of the most important nuts and bolts of the international human rights legal system, which generally resides within the structures of the United Nations. It first considers the most prominent international agreements that comprise the International Bill of Human Rights and their two treaty oversight bodies, the Human Rights Committee and the Committee on Economic, Social, and Cultural Rights. It then examines other human rights laws and treaties, along with the functions of the UN Office of the High Commissioner for Human Rights and the Human Rights Council. It also looks at universal criminal law and tribunals, regional human rights laws and institutions, and the human rights legal systems in Europe, the Americas, Africa, the Islamic world and Asia. The chapter concludes by explaining why the international law on human rights has been so popular and how the international human rights legal system works.Less
This chapter provides an overview of the most important nuts and bolts of the international human rights legal system, which generally resides within the structures of the United Nations. It first considers the most prominent international agreements that comprise the International Bill of Human Rights and their two treaty oversight bodies, the Human Rights Committee and the Committee on Economic, Social, and Cultural Rights. It then examines other human rights laws and treaties, along with the functions of the UN Office of the High Commissioner for Human Rights and the Human Rights Council. It also looks at universal criminal law and tribunals, regional human rights laws and institutions, and the human rights legal systems in Europe, the Americas, Africa, the Islamic world and Asia. The chapter concludes by explaining why the international law on human rights has been so popular and how the international human rights legal system works.
Anja Seibert-Fohr
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199569328
- eISBN:
- 9780191721502
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199569328.003.0002
- Subject:
- Law, Human Rights and Immigration, Criminal Law and Criminology
This chapter elaborates on the role prosecution plays for the protection of human rights under the International Covenant on Civil and Political Rights. It analyses the standards of this universal ...
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This chapter elaborates on the role prosecution plays for the protection of human rights under the International Covenant on Civil and Political Rights. It analyses the standards of this universal instrument for the conduct of criminal proceedings against human rights offenders, and explains how the UN Human Rights Committee has developed its doctrine on whether and why there is a treaty obligation to prosecute and punish serious violations of the ICCPR. A detailed and structured representation of the relevant provisions and the pertinent jurisprudence are provided to act as a guide through the wealth of cases. The chapter elaborates which human rights violations require criminal prosecution, why prosecution is essential for the protection of human rights, and under which circumstances the call for criminal measures may be compromised. It also considers victim rights and the validity of amnesties and alternative forms of post-conflict justice. The chapter concludes with a summary and outlook.Less
This chapter elaborates on the role prosecution plays for the protection of human rights under the International Covenant on Civil and Political Rights. It analyses the standards of this universal instrument for the conduct of criminal proceedings against human rights offenders, and explains how the UN Human Rights Committee has developed its doctrine on whether and why there is a treaty obligation to prosecute and punish serious violations of the ICCPR. A detailed and structured representation of the relevant provisions and the pertinent jurisprudence are provided to act as a guide through the wealth of cases. The chapter elaborates which human rights violations require criminal prosecution, why prosecution is essential for the protection of human rights, and under which circumstances the call for criminal measures may be compromised. It also considers victim rights and the validity of amnesties and alternative forms of post-conflict justice. The chapter concludes with a summary and outlook.
Alice Donald
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780197265376
- eISBN:
- 9780191760426
- Item type:
- chapter
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197265376.003.0012
- Subject:
- Law, Human Rights and Immigration
The right to participate in choosing or changing a constitution is becoming established in law and theory. The means of realising that right in the formation of Bills of Rights, and the consequences ...
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The right to participate in choosing or changing a constitution is becoming established in law and theory. The means of realising that right in the formation of Bills of Rights, and the consequences for democratic legitimacy, are matters of debate and experimentation. This chapter explores the processes used to develop Bills of Rights (or proposed Bills) in the United Kingdom, Canada, Australia, and New Zealand, and analyses key aspects of the design of those processes. It examines the context for creating a new UK Bill of Rights, including the work of the Commission on a Bill of Rights established in 2011. It reflects on the challenges facing the Commission in the light of experience overseas. It concludes that, on present evidence, the Commission is highly unlikely to achieve an outcome which might enjoy democratic legitimacy, in the sense of having been subject to inclusive and informed public deliberation.Less
The right to participate in choosing or changing a constitution is becoming established in law and theory. The means of realising that right in the formation of Bills of Rights, and the consequences for democratic legitimacy, are matters of debate and experimentation. This chapter explores the processes used to develop Bills of Rights (or proposed Bills) in the United Kingdom, Canada, Australia, and New Zealand, and analyses key aspects of the design of those processes. It examines the context for creating a new UK Bill of Rights, including the work of the Commission on a Bill of Rights established in 2011. It reflects on the challenges facing the Commission in the light of experience overseas. It concludes that, on present evidence, the Commission is highly unlikely to achieve an outcome which might enjoy democratic legitimacy, in the sense of having been subject to inclusive and informed public deliberation.
David Erdos
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199557769
- eISBN:
- 9780191594380
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199557769.001.0001
- Subject:
- Political Science, Comparative Politics
This book explores bill of rights outcomes in four countries — Australia, Canada, New Zealand, and the United Kingdom — whose development exhibits an interesting combination of both commonality and ...
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This book explores bill of rights outcomes in four countries — Australia, Canada, New Zealand, and the United Kingdom — whose development exhibits an interesting combination of both commonality and difference. Whilst sharing a core ‘Westminster’ political set‐up, more recent experiences display striking diversity. Comparative analysis of some thirty‐six democracies demonstrates that the historic lack of a bill of rights in Westminster countries is best explained by, firstly, the absence of a clear political transition and, secondly, by their strong British constitutional heritage. Detailed chapters then explore recent developments. In all the countries, postmaterialist socio‐economic change has resulted in a growing emphasis on legal formalization, codified civil liberties, and social equality. Pressure for a bill of rights has therefore increased. Nevertheless, by enhancing judicial power, bills of rights conflict with the prima facie positional interests of the political elite. Given this, change in this area has also required a political trigger which provides an immediate rationale for change. Alongside social forces, the nature of this trigger determines both the strength and substance of the bill of rights enacted. The statutory Canadian Bill of Rights Act (CBORA 1960), New Zealand Bill of Rights Act (NZBOR 1990), and the Human Rights Act (UK) (HRA 1998) were prompted politically by a relatively weak and backward‐looking ‘aversive’ reaction against perceived abuses of power under the previous administration. Meanwhile, the fully constitutional Canadian Charter (1982) had its political origins in a stronger, more self‐interested, and prospective need to find a new unifying institution to counter the destabilizing, centripetal power of the Québécois nationalist movement. Finally, the absence of any relevant political trigger explains the failure of national bill of rights initiatives in Australia. The conclusionary section of the book argues that this Postmaterialist Trigger Thesis (PTT) explanation of change can also explain the origins of bills of rights in other internally stable, advanced democracies, notably the Israeli Basic Laws on human rights (1992).Less
This book explores bill of rights outcomes in four countries — Australia, Canada, New Zealand, and the United Kingdom — whose development exhibits an interesting combination of both commonality and difference. Whilst sharing a core ‘Westminster’ political set‐up, more recent experiences display striking diversity. Comparative analysis of some thirty‐six democracies demonstrates that the historic lack of a bill of rights in Westminster countries is best explained by, firstly, the absence of a clear political transition and, secondly, by their strong British constitutional heritage. Detailed chapters then explore recent developments. In all the countries, postmaterialist socio‐economic change has resulted in a growing emphasis on legal formalization, codified civil liberties, and social equality. Pressure for a bill of rights has therefore increased. Nevertheless, by enhancing judicial power, bills of rights conflict with the prima facie positional interests of the political elite. Given this, change in this area has also required a political trigger which provides an immediate rationale for change. Alongside social forces, the nature of this trigger determines both the strength and substance of the bill of rights enacted. The statutory Canadian Bill of Rights Act (CBORA 1960), New Zealand Bill of Rights Act (NZBOR 1990), and the Human Rights Act (UK) (HRA 1998) were prompted politically by a relatively weak and backward‐looking ‘aversive’ reaction against perceived abuses of power under the previous administration. Meanwhile, the fully constitutional Canadian Charter (1982) had its political origins in a stronger, more self‐interested, and prospective need to find a new unifying institution to counter the destabilizing, centripetal power of the Québécois nationalist movement. Finally, the absence of any relevant political trigger explains the failure of national bill of rights initiatives in Australia. The conclusionary section of the book argues that this Postmaterialist Trigger Thesis (PTT) explanation of change can also explain the origins of bills of rights in other internally stable, advanced democracies, notably the Israeli Basic Laws on human rights (1992).
Roger Masterman and Ian Leigh
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780197265376
- eISBN:
- 9780191760426
- Item type:
- chapter
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197265376.003.0001
- Subject:
- Law, Human Rights and Immigration
This chapter briefly traces the history of the Human Rights Act, contextualising the academic and popular debates which have seen the long-term future of the Act placed in doubt. It introduces some ...
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This chapter briefly traces the history of the Human Rights Act, contextualising the academic and popular debates which have seen the long-term future of the Act placed in doubt. It introduces some of the core constitutional questions addressed in this volume, detailing the individual essaying and highlighting common themes.Less
This chapter briefly traces the history of the Human Rights Act, contextualising the academic and popular debates which have seen the long-term future of the Act placed in doubt. It introduces some of the core constitutional questions addressed in this volume, detailing the individual essaying and highlighting common themes.
Kristine Kalanges
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199859467
- eISBN:
- 9780199933518
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199859467.003.0003
- Subject:
- Law, Public International Law, Comparative Law
Freedom of religion did not become a legal reality until the modern era (e.g., through the First Amendment), and even as late as the Second World War, one global study declared a total absence of “a ...
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Freedom of religion did not become a legal reality until the modern era (e.g., through the First Amendment), and even as late as the Second World War, one global study declared a total absence of “a generally accepted postulate of international law that every State is under legal obligation to accord religious liberty within its jurisdiction.” However, in the relatively brief historical period since, freedom of religion or belief has become just such an accepted postulate of international law. This chapter explores key elements of that development, beginning with an examination of religious liberty provisions in international human rights law—the major documents and treaties, as well as issues of special concern. Next, it briefly considers two additional sources of international rights monitoring and enforcement: the U.S. Commission on International Religious Freedom and the European Court of Human Rights. Finally, it discusses the twentieth-century contributions of religious institutions to religious liberty, focusing on the role of the Catholic Church in elaborating a moral foundation for religious freedom and championing it as a pathway to peace.Less
Freedom of religion did not become a legal reality until the modern era (e.g., through the First Amendment), and even as late as the Second World War, one global study declared a total absence of “a generally accepted postulate of international law that every State is under legal obligation to accord religious liberty within its jurisdiction.” However, in the relatively brief historical period since, freedom of religion or belief has become just such an accepted postulate of international law. This chapter explores key elements of that development, beginning with an examination of religious liberty provisions in international human rights law—the major documents and treaties, as well as issues of special concern. Next, it briefly considers two additional sources of international rights monitoring and enforcement: the U.S. Commission on International Religious Freedom and the European Court of Human Rights. Finally, it discusses the twentieth-century contributions of religious institutions to religious liberty, focusing on the role of the Catholic Church in elaborating a moral foundation for religious freedom and championing it as a pathway to peace.
Helen Fenwick
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780197265376
- eISBN:
- 9780191760426
- Item type:
- chapter
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197265376.003.0013
- Subject:
- Law, Human Rights and Immigration
This chapter considers proposals for changes that might be made by a British Bill of Rights, as compared with the Human Rights Act, under the Coalition government, or a future Conservative ...
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This chapter considers proposals for changes that might be made by a British Bill of Rights, as compared with the Human Rights Act, under the Coalition government, or a future Conservative government. It considers views expressed by Conservative spokespersons prior to and after the 2010 general election, and answers given by members of the Bill of Rights Commission to the Political and Constitutional Reform Committee in 2011. This chapter also touches on the second aspect of the Commission's remit — its advisory role on reform of the European Court of Human Rights. It questions whether adopting a Bill of Rights on the lines favoured by the Conservative leadership, combined with the Strasbourg reforms recently determined on, would be likely to realise Conservative aims of creating divergence from Strasbourg and enhancing parliamentary autonomy.Less
This chapter considers proposals for changes that might be made by a British Bill of Rights, as compared with the Human Rights Act, under the Coalition government, or a future Conservative government. It considers views expressed by Conservative spokespersons prior to and after the 2010 general election, and answers given by members of the Bill of Rights Commission to the Political and Constitutional Reform Committee in 2011. This chapter also touches on the second aspect of the Commission's remit — its advisory role on reform of the European Court of Human Rights. It questions whether adopting a Bill of Rights on the lines favoured by the Conservative leadership, combined with the Strasbourg reforms recently determined on, would be likely to realise Conservative aims of creating divergence from Strasbourg and enhancing parliamentary autonomy.
Simon Evans and Julia Watson
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780197265376
- eISBN:
- 9780191760426
- Item type:
- chapter
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197265376.003.0010
- Subject:
- Law, Human Rights and Immigration
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, ...
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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.Less
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.
Iain McLean
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199546954
- eISBN:
- 9780191720031
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546954.003.0011
- Subject:
- Political Science, Comparative Politics, UK Politics
Creation of the Council of Europe in the shadow of Nuremburg. History of gradual UK incorporation. European Court of Human Rights. Human Rights Act 1998. Human rights and unpopular minorities. Growth ...
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Creation of the Council of Europe in the shadow of Nuremburg. History of gradual UK incorporation. European Court of Human Rights. Human Rights Act 1998. Human rights and unpopular minorities. Growth of a human rights culture among lawyers; unpopularity with politicians and media. The weak entrenchment of HRA 1998.Less
Creation of the Council of Europe in the shadow of Nuremburg. History of gradual UK incorporation. European Court of Human Rights. Human Rights Act 1998. Human rights and unpopular minorities. Growth of a human rights culture among lawyers; unpopularity with politicians and media. The weak entrenchment of HRA 1998.
Michael Banton
- Published in print:
- 1996
- Published Online:
- November 2003
- ISBN:
- 9780198280613
- eISBN:
- 9780191598760
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198280610.003.0003
- Subject:
- Political Science, International Relations and Politics
UN bodies with responsibility for action against racial discrimination are described. During the period 1945–1995, the number of UN member states grew from 29 to 185. The work of the human rights ...
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UN bodies with responsibility for action against racial discrimination are described. During the period 1945–1995, the number of UN member states grew from 29 to 185. The work of the human rights treaty bodies is complemented by that of the special rapporteurs appointed by the Human Rights Commission. They trace their authority to the UN Charter binding upon all member states as opposed to the smaller numbers of states that have accepted treaty obligations.Less
UN bodies with responsibility for action against racial discrimination are described. During the period 1945–1995, the number of UN member states grew from 29 to 185. The work of the human rights treaty bodies is complemented by that of the special rapporteurs appointed by the Human Rights Commission. They trace their authority to the UN Charter binding upon all member states as opposed to the smaller numbers of states that have accepted treaty obligations.
Roger Masterman
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780197265376
- eISBN:
- 9780191760426
- Item type:
- chapter
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197265376.003.0005
- Subject:
- Law, Human Rights and Immigration
The notion that the protections afforded by domestic courts pursuant to the Human Rights Act should ‘mirror’ the rights enforced by the European Court of Human Rights has been a recurring feature of ...
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The notion that the protections afforded by domestic courts pursuant to the Human Rights Act should ‘mirror’ the rights enforced by the European Court of Human Rights has been a recurring feature of judicial discussions on the nature and extent of the ‘Convention rights’ in domestic law, and has exercised a powerful influence over how those rights have been given legal effect. This chapter argues that the mirror principle is based on an overly narrow interpretation of the purpose of the Human Rights Act, provides an inadequate foundation for the development of domestic rights jurisprudence, and is an increasingly inaccurate description of judicial and constitutional practice.Less
The notion that the protections afforded by domestic courts pursuant to the Human Rights Act should ‘mirror’ the rights enforced by the European Court of Human Rights has been a recurring feature of judicial discussions on the nature and extent of the ‘Convention rights’ in domestic law, and has exercised a powerful influence over how those rights have been given legal effect. This chapter argues that the mirror principle is based on an overly narrow interpretation of the purpose of the Human Rights Act, provides an inadequate foundation for the development of domestic rights jurisprudence, and is an increasingly inaccurate description of judicial and constitutional practice.
Gavin Phillipson
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780197265376
- eISBN:
- 9780191760426
- Item type:
- chapter
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197265376.003.0002
- Subject:
- Law, Human Rights and Immigration
This chapter considers the relationship between the Human Rights Act (HRA) and existing key principles of the UK constitution. It proposes that rather than asking how far the HRA is transforming the ...
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This chapter considers the relationship between the Human Rights Act (HRA) and existing key principles of the UK constitution. It proposes that rather than asking how far the HRA is transforming the existing constitution, a more fruitful approach assumes that each acts upon the other. In light of this discussion, it goes on to consider particular arguments about the balance between judicial and legislative power under the HRA. First, it suggests that, contrary to a widely held view, s.3 has been used not more but less than Parliament was led to expect at the time the HRA was passed. Second, it examines recent episodes of inter-institutional disputes about rights in the light of dialogic theories which assume that governments welcome s.4 declarations as triggering an honest debate about rights; it suggests that such theories diverge sharply from political reality.Less
This chapter considers the relationship between the Human Rights Act (HRA) and existing key principles of the UK constitution. It proposes that rather than asking how far the HRA is transforming the existing constitution, a more fruitful approach assumes that each acts upon the other. In light of this discussion, it goes on to consider particular arguments about the balance between judicial and legislative power under the HRA. First, it suggests that, contrary to a widely held view, s.3 has been used not more but less than Parliament was led to expect at the time the HRA was passed. Second, it examines recent episodes of inter-institutional disputes about rights in the light of dialogic theories which assume that governments welcome s.4 declarations as triggering an honest debate about rights; it suggests that such theories diverge sharply from political reality.
Kirsty Hughes
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199652501
- eISBN:
- 9780191739217
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199652501.003.0026
- Subject:
- Law, Family Law, Human Rights and Immigration
This chapter looks at the child's right to privacy. It argues that whilst in theory children have a right to privacy under Article 8 European Convention on Human Rights (ECHR), in practice there is ...
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This chapter looks at the child's right to privacy. It argues that whilst in theory children have a right to privacy under Article 8 European Convention on Human Rights (ECHR), in practice there is an absence of rights-based reasoning in the privacy jurisprudence concerned with children. The chapter considers a number of areas in which the courts have been faced with cases relating to Article 8 ECHR privacy rights of the child. By analysing the manner in which the courts have addressed the right in these cases, it becomes apparent that the only situations in which the courts have given serious consideration to the child's right to privacy are situations in which either a high degree of protection is afforded to that privacy-related interest in the adult context or where the child is vulnerable to a clearly identifiable harm. This is problematic because the right to privacy is not usually, and should not be, contingent upon the individual suffering harm. Moreover, children may require greater and different privacy protection than adults. It is therefore argued that the child's right to privacy is not being adequately analysed or protected.Less
This chapter looks at the child's right to privacy. It argues that whilst in theory children have a right to privacy under Article 8 European Convention on Human Rights (ECHR), in practice there is an absence of rights-based reasoning in the privacy jurisprudence concerned with children. The chapter considers a number of areas in which the courts have been faced with cases relating to Article 8 ECHR privacy rights of the child. By analysing the manner in which the courts have addressed the right in these cases, it becomes apparent that the only situations in which the courts have given serious consideration to the child's right to privacy are situations in which either a high degree of protection is afforded to that privacy-related interest in the adult context or where the child is vulnerable to a clearly identifiable harm. This is problematic because the right to privacy is not usually, and should not be, contingent upon the individual suffering harm. Moreover, children may require greater and different privacy protection than adults. It is therefore argued that the child's right to privacy is not being adequately analysed or protected.
Kevin Boyle
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199570546
- eISBN:
- 9780191705496
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199570546.003.0002
- Subject:
- Law, Human Rights and Immigration
The Geneva based United Nations Human Rights Council held its first session in June 2006. It replaced the Human Rights Commission whose reputation had seriously declined in its last years with ...
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The Geneva based United Nations Human Rights Council held its first session in June 2006. It replaced the Human Rights Commission whose reputation had seriously declined in its last years with accusations that it had become politicised and ineffective. This chapter examines the Commission's defects and achievements with a focus on the geo-political environment of regional and political blocs in which it operated. The Human Rights Council was established with an enhanced status as an organ of the General Assembly and directed to meet with greater frequency than the former Commission. Crucial changes from the Commission lie in the system of election of states to the Council with a new emphasis on the human rights records of candidates. The chapter assesses the work of the Human Rights Council over its first two years of existence as well as its prospects.Less
The Geneva based United Nations Human Rights Council held its first session in June 2006. It replaced the Human Rights Commission whose reputation had seriously declined in its last years with accusations that it had become politicised and ineffective. This chapter examines the Commission's defects and achievements with a focus on the geo-political environment of regional and political blocs in which it operated. The Human Rights Council was established with an enhanced status as an organ of the General Assembly and directed to meet with greater frequency than the former Commission. Crucial changes from the Commission lie in the system of election of states to the Council with a new emphasis on the human rights records of candidates. The chapter assesses the work of the Human Rights Council over its first two years of existence as well as its prospects.
Daniel Engster
- Published in print:
- 2007
- Published Online:
- May 2007
- ISBN:
- 9780199214358
- eISBN:
- 9780191706684
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199214358.003.0005
- Subject:
- Political Science, Political Theory
This chapter explores the question: What does it mean to care for others in international relations? Sara Ruddick, Fiona Robinson, and others have outlined international relations theories based upon ...
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This chapter explores the question: What does it mean to care for others in international relations? Sara Ruddick, Fiona Robinson, and others have outlined international relations theories based upon care ethics, but their accounts are fairly general and say little about the rights and policies necessary for establishing caring relations among people across the world. The first half of this chapter develops a human rights framework based upon human beings' universal duty to care for others. The chapter argues that this framework avoids the central shortcomings of other international rights frameworks, and more generally provides a standard of justice that should be reasonably acceptable to people from diverse cultural and religious backgrounds. The second half of the chapter outlines some specific strategies and policies for enforcing human rights abroad and caring for distant others. In the last section, the chapter discusses the conditions under which care theory might justify the use of military force, especially for the sake of intervening into other countries for humanitarian purposes.Less
This chapter explores the question: What does it mean to care for others in international relations? Sara Ruddick, Fiona Robinson, and others have outlined international relations theories based upon care ethics, but their accounts are fairly general and say little about the rights and policies necessary for establishing caring relations among people across the world. The first half of this chapter develops a human rights framework based upon human beings' universal duty to care for others. The chapter argues that this framework avoids the central shortcomings of other international rights frameworks, and more generally provides a standard of justice that should be reasonably acceptable to people from diverse cultural and religious backgrounds. The second half of the chapter outlines some specific strategies and policies for enforcing human rights abroad and caring for distant others. In the last section, the chapter discusses the conditions under which care theory might justify the use of military force, especially for the sake of intervening into other countries for humanitarian purposes.
Aryeh Neier
- Published in print:
- 2012
- Published Online:
- October 2017
- ISBN:
- 9780691135151
- eISBN:
- 9781400841875
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691135151.003.0009
- Subject:
- Sociology, Migration Studies (including Refugee Studies)
This chapter talks about how, despite the Human Rights Watch becoming one of the two most important institutions for the protection of human rights worldwide, its beginnings in the late 1970s did not ...
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This chapter talks about how, despite the Human Rights Watch becoming one of the two most important institutions for the protection of human rights worldwide, its beginnings in the late 1970s did not seem to foreshadow its subsequent development. The organization is an outgrowth of the efforts of a handful of people to address one particular human rights problem of the era. They did not plan in advance its expansion to address a full range of issues worldwide. Nor did they begin with the intent to adopt the modus operandi that soon came to define the organization's character. Those developments were, to a large extent, accidents of history.Less
This chapter talks about how, despite the Human Rights Watch becoming one of the two most important institutions for the protection of human rights worldwide, its beginnings in the late 1970s did not seem to foreshadow its subsequent development. The organization is an outgrowth of the efforts of a handful of people to address one particular human rights problem of the era. They did not plan in advance its expansion to address a full range of issues worldwide. Nor did they begin with the intent to adopt the modus operandi that soon came to define the organization's character. Those developments were, to a large extent, accidents of history.
David Erdos
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199557769
- eISBN:
- 9780191594380
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199557769.003.0007
- Subject:
- Political Science, Comparative Politics
This chapter examines the socio‐politics of bill of rights debates and outcomes in the United Kingdom including, in particular, the origins of the Human Rights Act (HRA) (1998). Following a brief ...
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This chapter examines the socio‐politics of bill of rights debates and outcomes in the United Kingdom including, in particular, the origins of the Human Rights Act (HRA) (1998). Following a brief chronological overview, the first part of the chapter explores the forces which have fuelled the gradually increased background pressures for a bill of rights. Since the 1960s, a postmaterialist rights lobby of civil libertarians and social equality seekers not only emerged politically but came to advocate for a bill of rights. The United Kingdom's participation in the European Convention on Human Rights (ECHR) also encouraged and shaped the domestic formalization of rights, particularly as instantiated in the HRA. The second part of the chapter explores the much more sporadic nature of elite political interest in a bill of rights. Focusing on the genesis of the HRA, it argues that this was politically triggered by Labour and the left's ‘aversive’ reaction against the perceived authoritarianism of Margaret Thatcher's Conservative Administration. The chapter closes with a brief consideration of the prospects of a fully indigenous British bill of rights designed either to complement or replace the HRA.Less
This chapter examines the socio‐politics of bill of rights debates and outcomes in the United Kingdom including, in particular, the origins of the Human Rights Act (HRA) (1998). Following a brief chronological overview, the first part of the chapter explores the forces which have fuelled the gradually increased background pressures for a bill of rights. Since the 1960s, a postmaterialist rights lobby of civil libertarians and social equality seekers not only emerged politically but came to advocate for a bill of rights. The United Kingdom's participation in the European Convention on Human Rights (ECHR) also encouraged and shaped the domestic formalization of rights, particularly as instantiated in the HRA. The second part of the chapter explores the much more sporadic nature of elite political interest in a bill of rights. Focusing on the genesis of the HRA, it argues that this was politically triggered by Labour and the left's ‘aversive’ reaction against the perceived authoritarianism of Margaret Thatcher's Conservative Administration. The chapter closes with a brief consideration of the prospects of a fully indigenous British bill of rights designed either to complement or replace the HRA.
Allen Buchanan
- Published in print:
- 2003
- Published Online:
- April 2004
- ISBN:
- 9780198295358
- eISBN:
- 9780191600982
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198295359.003.0003
- Subject:
- Political Science, Political Theory
The purpose of this chapter is to articulate an understanding of basic human rights that is sufficiently clear and cogent to serve as the core of a justice‐based moral theory of international law. To ...
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The purpose of this chapter is to articulate an understanding of basic human rights that is sufficiently clear and cogent to serve as the core of a justice‐based moral theory of international law. To accomplish this goal, the concept of human rights is first analysed into its key elements, and the analysis is used to explain how assertions about human rights can be justified, and show that plausible justifications for basic human rights can be grounded in a diversity of moral and religious perspectives. Next, several objections to the claim that there are human rights or that they can play a fundamental role in a moral theory of international law are refuted, and it is argued that the right to minimally democratic governance should be included among the rights that international law ascribes to all persons—whether it is a human right or of instrumental value in securing human rights, or both. It is then shown that the use of coercion to protect basic human rights is compatible with a proper tolerance for the diversity of values, and the chapter concludes with a discussion of how the international legal order can cope with the ineliminable abstractness of human rights norms. The seven parts of the chapter are: I. Clarifying the Idea of Human Rights; II. The Justification of Assertions about the Existence of Human Rights; III. A Plurality of Converging Justifications for Human Rights; IV. Is democracy a Human Right?; V. Critiques of Human Rights; VI. Human Rights and the Bounds of Toleration; and VII. The Inelimable Indeterminacy of Human Rights and its Implications for the Moral Theory of International Law.Less
The purpose of this chapter is to articulate an understanding of basic human rights that is sufficiently clear and cogent to serve as the core of a justice‐based moral theory of international law. To accomplish this goal, the concept of human rights is first analysed into its key elements, and the analysis is used to explain how assertions about human rights can be justified, and show that plausible justifications for basic human rights can be grounded in a diversity of moral and religious perspectives. Next, several objections to the claim that there are human rights or that they can play a fundamental role in a moral theory of international law are refuted, and it is argued that the right to minimally democratic governance should be included among the rights that international law ascribes to all persons—whether it is a human right or of instrumental value in securing human rights, or both. It is then shown that the use of coercion to protect basic human rights is compatible with a proper tolerance for the diversity of values, and the chapter concludes with a discussion of how the international legal order can cope with the ineliminable abstractness of human rights norms. The seven parts of the chapter are: I. Clarifying the Idea of Human Rights; II. The Justification of Assertions about the Existence of Human Rights; III. A Plurality of Converging Justifications for Human Rights; IV. Is democracy a Human Right?; V. Critiques of Human Rights; VI. Human Rights and the Bounds of Toleration; and VII. The Inelimable Indeterminacy of Human Rights and its Implications for the Moral Theory of International Law.
