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1
Jankuv, Juraj. "Protection of Right to Environment in International Public Law." International and Comparative Law Review 19, no. 1 (June 1, 2019): 146–71. http://dx.doi.org/10.2478/iclr-2019-0005.
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Summary Substantive human right to environment represents a relatively new element in international human rights catalogues. This human right has gradually become established in international public law since the 1970s. This paper deals with the identification and analysis of the formal sources of two branches (or, according to some opinions, subbranches) of international public law – international environmental law and the international human rights law that enshrine substantive human right to environment as well as with the identification of the relevant international law mechanisms of direct and indirect protection of this right.
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Hoffman, Daniel N. "What Makes a Right Fundamental." Review of Politics 49, no. 4 (1987): 515–29. http://dx.doi.org/10.1017/s0034670500035440.
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Liberalism needs a theory of fundamental rights. Since rights belong to persons, a theory of rights should be linked to a conception of the person. The courts have never undertaken to develop such a conception. The implications of adopting competing positivist, deontological or empiricist conceptions of the person are explored. Because of the weaknesses of each, an eclectic “politics of rights” approach is advocated. On this approach, the validity of a claim of right is enhanced by its formal neutrality and congruity with legal precedent, but also depends on careful assessment of what recognition of the right would mean for actual persons in the concrete political situation.
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Meagher, Dan. "The judicial evolution (or counter-revolution) of fundamental rights protection in Australia." Alternative Law Journal 42, no. 1 (March 2017): 9–13. http://dx.doi.org/10.1177/1037969x17694785.
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This article suggests that the decision of the framers of the Australian Constitution to consciously reject American notions of formal rights guarantees has not, ultimately, proven decisive. In the absence of a constitutional (or statutory) bill of rights, the High Court has filled the lacuna in formal rights protection in Australia. The emergence of new species of (constitutionally valid) legislation, openly hostile to fundamental rights, has sparked this judicial evolution (or counter-revolution). The Court has used the method of clear statement required by the principle of legality to construct a common law bill of rights that is now, arguably, quasi-constitutional in strength.
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Foran, Michael P. "THE RULE OF GOOD LAW: FORM, SUBSTANCE AND FUNDAMENTAL RIGHTS." Cambridge Law Journal 78, no. 3 (August 8, 2019): 570–95. http://dx.doi.org/10.1017/s0008197319000618.
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AbstractThis paper explores the effect that conformity to the rule of law has on the ends which might legitimately be pursued within a legal system. The neat distinction between formal and substantive conceptions of the rule of law will be challenged: even apparently formal conceptions necessarily affect the content of law and necessarily entail the protection of certain fundamental rights. What remains of the formal/substantive dichotomy is, in fact, a distinction between conceptions of the rule of law which guarantee the substantive justice of each and every law and those which entail some commitment to basic requirements of justice while nevertheless leaving room for unjust laws. Ultimately, the only significant distinction between competing theories of the rule of law concerns the nature of the connection between legality and justice, not whether there is any such connection at all.
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Charles, Jacob. "Securing Gun Rights by Statute: The Right to Keep and Bear Arms Outside the Constitution." Michigan Law Review, no. 120.4 (2022): 581. http://dx.doi.org/10.36644/mlr.120.4.securing.
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In popular and professional discourse, debate about the right to keep and bear arms most often revolves around the Second Amendment. But that narrow reference ignores a vast and expansive nonconstitutional legal regime privileging guns and their owners. This collection of nonconstitutional gun rights confers broad powers and immunities on gun owners that go far beyond those required by the Constitution, like rights to bring guns on private property against an owner’s wishes and to carry a concealed firearm in public with no training or background check. This Article catalogues this set of expansive laws and critically assesses them. Unlike the formal constitutional guarantee, this broad collection is not solely libertarian, concerned only with guaranteeing noninterference with a negative right. Instead, it is also aggressively interventionist, countermanding contrary policy judgments by employers, universities, property owners, and local government officials, conferring robust rights and privileges, and shifting the distribution of violence in society. This Article underscores the rhetorical and legal connection between this gun-rights expansionism and the formal Second Amendment guarantee. These laws do not derive from a judicial interpretation of the scope of the Constitution, but they are expressed and advocated for in constitutional terms. The Article also highlights how broad gun rights can create unique harm to the body politic and to marginalized groups by fostering fear and mistrust and empowering sometimes-problematic private actors to proactively police their own communities. Finally, the Article shows how gun-rights expansionism influences constitutional doctrine in the context of the Second Amendment, as well as of the First, Fourth, and Fourteenth Amendments.
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Burdeynyy, Yu. "Principles of interpretation of fundamental human rights through the prism of international case law." Uzhhorod National University Herald. Series: Law 1, no. 72 (November 16, 2022): 86–89. http://dx.doi.org/10.24144/2307-3322.2022.72.14.
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The evolution of law has given rise to principles of interpretation that can be applied to several formal sources. Thus, the principles of interpretation of the law and the Constitution were developed. The modern trend towards the materialization of law raises questions about the principles of interpretation of fundamental rights. This interpretation of fundamental rights indicates a paradigm shift towards material justice. During the 20th century, the principles of interpreting constitutions were established in the main constitutional democracies of the world. Over the years, in the democratic constitutional regimes of the world, judges have developed or borrowed principles of constitutional interpretation from other constitutional jurisdictions. It was also during this period that human rights became the object of widespread recognition and development in the universal sphere, which initiated a profuse phase of generation of international instruments of individual rights, which became known as human rights. From the point of view of individual rights, several principles of interpretation of fundamental rights have been developed, which apply regardless of whether they are recognized in the legal text, in the constitutional text or in the convention. The latter is what could be called the rule of autonomy of the principles of interpretation of rights. Therefore, the interpretation of the law and the Constitution - in the state order - and the interpretation of international treaties - in the international order - will be at the same level of analysis, relative to the formal source. On the other hand, the interpretation of fundamental rights would correspond to an analytical category different from the previous one, where the formal source containing the right would not be a determining element of the interpretation. Throughout the history and evolution of law, various mechanisms of applying general and abstract legal norms to a specific case have been developed. In order to implement the specified application, which takes the form of concretization, especially in constitutional law, the judge proceeds to the interpretation of the norm.
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Zhou, Wubiao. "Property Rights, Deregulation, and Entrepreneurial Development in a Transition Economy." Management and Organization Review 14, no. 1 (November 8, 2017): 73–103. http://dx.doi.org/10.1017/mor.2016.59.
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ABSTRACTThis article investigates the relative roles of formal property rights institutions versus deregulated markets in entrepreneurial development, based on China's market transition. Empirically, it is not yet known which set of institutions matters more for entrepreneurship, particularly in the long run, despite the existence of well-established theoretical arguments for each. Using provincial-level panel data from China's transition economy, this study has the following findings: On average, both formal protection of property rights and deregulated markets have positive effects on entrepreneurial development; yet, as market transition progresses, the effect of formal protection of property rights increases, while that of deregulated markets decreases. These results are robust to both multiple model specifications and an endogeneity test using an instrumental variable approach. Overall, therefore, while both sets of institutions indeed play positive roles in entrepreneurial development, property rights institutions may be more fundamental in the long run.
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Chung, Hun. "Rawls’s Self-Defeat: A Formal Analysis." Erkenntnis 85, no. 5 (December 7, 2018): 1169–97. http://dx.doi.org/10.1007/s10670-018-0079-4.
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Abstract One of John Rawls’s major aims, when he wrote A Theory of Justice, was to present a superior alternative to utilitarianism. Rawls’s worry was that utilitarianism may fail to protect the fundamental rights and liberties of persons in its attempt to maximize total social welfare. Rawls’s main argument against utilitarianism was that, for such reasons, the representative parties in the original position will not choose utilitarianism, but will rather choose his justice as fairness, which he believed would securely protect the worth of everybody’s basic rights and liberties. In this paper, I will argue that, under close formal examination, Rawls’s argument against utilitarianism is self-defeating. That is, I will argue that Rawls’s own reasons, assumptions, and the many theoretical devices he employs demonstrably imply that the representative parties in the original position will choose utilitarianism instead of justice as fairness.
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Lundy, Laura, and Gabriela Martínez Sainz. "The role of law and legal knowledge for a transformative human rights education: addressing violations of children’s rights in formal education." Human Rights Education Review 1, no. 2 (September 17, 2018): 04–24. http://dx.doi.org/10.7577/hrer.2560.
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Human Rights Education (HRE) emphasises the significance of children learning about, through and for human rights through their lived experiences. Such experiential learning, however, is often limited to instances of enjoyment of rights and disregards experiences of injustice, exclusion or discrimination. By neglecting the ‘negative’ experiences, including breaches of their human rights, HRE fails in one of its fundamental aims: empowering individuals to exercise their rights and to respect and uphold the rights of others. Drawing on a range of legal sources, this article identifies a number of violations of the human rights of children in schools, categorised under five themes: access to school; the curriculum; testing and assessment; discipline; and respect for children’s views. It argues that for HRE to achieve its core purpose, it must enable children to identify and challenge breaches of rights in school and elsewhere. To do so, knowledge of law, both domestic and international, has a fundamental role to play.
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Kuzenko, Uliana. "Universal declaration of human rights as a source of universal international legal standards of human rights." Scientific and informational bulletin of Ivano-Frankivsk University of Law named after King Danylo Halytskyi, no. 9(21) (October 2, 2020): 36–42. http://dx.doi.org/10.33098/2078-6670.2020.9.21.36-42.
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Purpose. The purpose of the article is to analyze the Universal Declaration of Human Rights as an international legal instrument, which for the first time formulated the foundations of modern democratic status of a human being and its fundamental rights and freedoms. Methodology. The methodology involves a comprehensive study of theoretical and practical material on the subject, as well as a formulation of relevant conclusions and recommendations. During the research, the following methods of scientific cognition were used: dialectical, terminological, formal and logical, systemic and functional. Results. The study found that the main features of the Universal Declaration of Human Rights as a source of international legal mechanism for the protection of human rights are: 1) it is a fundamental, foundational and universal international human rights act of the United Nations; 2) it establishes a system of fundamental human rights; 3) it defines a common system of fundamental international human rights standards; 4) it determines the principles of legal identity of a human being; 5) it determines the fundamental basis and principles of international legal regulation in the field of human rights protection; 6) it acts as an international legal basis for the adoption of the latest legislation on human rights protection; 7) it acts as an international legal basis for the codification of human rights legislation. Scientific novelty. The study found that the Universal Declaration of Human Rights points to the natural origin of human rights, which must be binding on all States and for the whole population, regardless of citizenship, in order to ensure the human rights protection in a democratic and rule-of-law State. Practical importance. The results of the study can be used to improve Ukrainian legislation on human rights and fundamental freedoms.
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Norman, Ludvig. "Theorizing the social foundations of exceptional security politics: Rights, emotions and community." Cooperation and Conflict 53, no. 1 (July 12, 2017): 84–100. http://dx.doi.org/10.1177/0010836717716722.
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This article theorizes the social processes through which purportedly liberal democratic states compromise fundamental rights in times of perceived security crises. It has become increasingly common to suggest that a general culture of fear serves both as the motor and the outcome of exceptional security politics. This article suggests instead that the transgression of fundamental rights in the name of security is intimately connected to collective feelings of humiliation and the reassertion of self-worth through efforts to re-establish the integrity of imagined communities. To demonstrate this, the article highlights the dual character of rights, having both a formal and a symbolic function, associated with collective emotions. By theorizing the connections between rights, emotions and belonging the article offers the building blocks for a more nuanced and possibly more accurate understanding of why exceptional security politics tend to elicit such broad public support in spite of its often-glaring contradictions to fundamental principles of liberal democracy.
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Markovich, Réka. "Understanding Hohfeld and Formalizing Legal Rights: The Hohfeldian Conceptions and Their Conditional Consequences." Studia Logica 108, no. 1 (September 16, 2019): 129–58. http://dx.doi.org/10.1007/s11225-019-09870-5.
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Abstract Hohfeld’s analysis (Fundamental Legal Conceptions as Applied in Judicial Reasoning, 1913, 1917) on the different types of rights and duties is highly influential in analytical legal theory, and it is considered as a fundamental theory in AI&Law and normative multi-agent systems. Yet a century later, the formalization of this theory remains, in various ways, unresolved. In this paper I provide a formal analysis of how the working of a system containing Hohfeldian rights and duties can be delineated. This formalization starts from using the same tools as the classical ones by Kanger and Lindahl used, but instead of focusing on the algebraic features of rights and duties, it aims at providing a comprehensive analysis of what these rights and duties actually are and how they behave and at saying something substantial on Power too—maintaining all along the Hohfeldian intentions that these rights and duties are sui generis and inherently relational.
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Westphal, Kenneth. "Hegel’s justification of the human right to non-domination." Filozofija i drustvo 28, no. 3 (2017): 579–612. http://dx.doi.org/10.2298/fid1703579w.
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?Hegel? and ?human rights? are rarely conjoined, and the designation ?human rights? appears rarely in his works. Indeed, Hegel has been criticised for omitting civil and political rights all together. My surmise is that readers have looked for a modern Decalogue, and have neglected how Hegel justifies his views, and hence just what views he does justify. Philip Pettit (1997) has refocused attention on republican liberty. Hegel and I agree with Pettit that republican liberty is a supremely important value, but appealing to its value, or justifying it by appeal to reflective equilibrium, are insufficient both in theory and in practice. By reconstructing Kant?s Critical methodology and explicating the social character of rational justification in non-formal domains, Hegel shows that the republican right to non-domination is constitutive of the equally republican right to justification (Forst 2007) - both of which are necessary requirements for sufficient rational justification in all non-formal domains, including both claims to rights or imputations of duties or responsibilities. That is the direct moral, political and juridical implication of Hegel?s analysis of mutual recognition, and its fundamental, constitutive role in rational justification. Specific corollaries to the fundamental republican right to non-domination must be determined by considering what forms of illicit domination are possible or probable within any specific society, in view of its social, political and economic structures and functioning.
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Cuyvers, Armin. "The Kadi II Judgment of the General Court: The ECJ's Predicament and the Consequences for Member States." European Constitutional Law Review 7, no. 3 (October 2011): 481–510. http://dx.doi.org/10.1017/s1574019611300065.
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Kadi – Autonomy – Supremacy – EU legal order – Relationship between EU and UN – Terrorism – (National) Freezing Measures – Effects of annulment – Fundamental Rights – Right to effective legal protection – Right to property – Substantive versus formal hierarchy of norms – Comity – Relationship between Court of Justice and General Court – Bosphorus – Solange – Role and function of the Court of Justice
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Nick Pay, Vahid. "Constitutional Rights and Liberties in the Islamic Republic." UKH Journal of Social Sciences 1, no. 1 (December 28, 2017): 34–45. http://dx.doi.org/10.25079/ukhjss.v1n1y2017.pp34-45.
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This study is aimed at analyzing aspects of individual rights and liberties in theocratic systems by examining the Iranian Constitution as a case study. As it will be shown the current constitution (1979) appears to be riddled with several formal and epistemological inconsistencies, arising from its fundamental ideological underpinnings. Surprisingly these have rarely been subject to systematic analysis capable of addressing both the form and content of the Fundamental Law. My previous manuscript in 2014, provided the basis for such an analysis in an academic format. Nonetheless, in the light of recent updates to Iranian normative system, in particular the prevailing Islamic Penal Code, this requires a thorough revision and reinterpretation. In this pursuit, various linguistic, legal, procedural and conceptual tools have been deployed to highlight inadequacies and incoherencies in support of the claim that the country currently lacks clear normative frameworks for guaranteeing basic rights and freedoms, which should be the raison d'être of all fundamental loci of rights. In addition, as it is argued below, serious conceptual flaws in the constitution of the Islamic Republic itself could be regarded as the prime suspect for the systematic violation of basic principles of rights and liberties, rather than an alleged failure to adhere to the constitution as it is often claimed.
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AZNAGULOVA, Guzel, Dmitry PASHENTSEV, and Yulia KASHEVAROVA. "The Idea of Human Rights: From the Ancient World to the Digital Age." WISDOM 1, no. 1 (December 10, 2021): 18–29. http://dx.doi.org/10.24234/wisdom.v1i1.663.
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The purpose of the article is to identify the features of the development of the idea of human rights, starting from the Ancient World, and on this basis to show its significance in the digital age. To achieve this goal, the conceptual foundations of the idea of human rights and their reflection in political and legal thought at different stages of the evolution of society and science are analysed. The subject of the study was the concept of human rights. The study was conducted on the basis of post-non-classical scientific methodology, including constructivism. The formal-legal and comparative-historical methods are also used. According to the results of the study, it is concluded that in the conditions of modern technological development, digitalisation is becoming a challenge to the idea of human rights, a threat to individual freedom, and therefore it is necessary to develop and implement new legal mechanisms that would guarantee the full implementation of fundamental rights and freedoms, provide the necessary balance between individual freedom and public security. In this context, the legal consolidation and practical implementation of the principle of formal equality become important.
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Escobar Roca, Guillermo. "El modelo irlandés de protección de los derechos fundamentales." Teoría y Realidad Constitucional, no. 46 (December 16, 2020): 511. http://dx.doi.org/10.5944/trc.46.2020.29129.
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El modelo irlandés de derechos fundamentales resulta de utilidad para la comparación con España. Como elementos positivos que podrían inspirar una mejora de nuestro modelo pueden mencionarse: la apertura expresa y argumentada del catálogo de los derechos; un mecanismo institucional de declaración de incompatibilidad entre la ley nacional y el CEDH; el llamamiento frecuente al referéndum de reforma constitucional; y un sistema más accesible y menos politizado de control de constitucionalidad de las leyes. Como problemas comunes a ambos países, que manifiestan su retraso en relación con las tendencias recientes del Derecho internacional y de la doctrina, cabe mencionar: una resistencia a superar la concepción formal de la igualdad y a reconocer derechos fundamentales sociales, y un uso débil e incoherente del principio de proporcionalidad.The irish model of fundamental rights provides an interesting comparator for the Spanish model. Positive elements which could inspire an improvement of our model: the express development of unenumerated rights within the current catalog of rights; a statutory mechanism for declaration of incompatibility between national law and the ECHR; a frequent call to reform the constitution via a referendum process; and a more accessible and less politicized system of constitutional review of laws. Problems common to both countries, are the delay in implementation of recent trends in international law and doctrine; it is also worth mentioning: a resistance to overcoming the formal conception of equality and recognizing fundamental socio-economic rights, and a weak and incoherent use of the principle of proportionality.
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Naseem, Fozia, Haleema Sadia, and Rukhsana Shaheen Waraich. "Islamic Approach towards the Fundamental Rights Regarding Arrest and Detention." Global Legal Studies Review VII, no. II (June 30, 2022): 126–32. http://dx.doi.org/10.31703/glsr.2022(vii-ii).16.
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Pakistan is an Islamic state which came into being in the name of Islam. The state religion is Islam according to the Constitution of the Islamic Republic of Pakistan. According to the constitution, no law can be enacted in Pakistan against the teachings laid down by Quran and Sunnah. The reason why any legal research is incomplete without discussing the Islamic Perspective is incorporated in Article 228 of the Constitution, according to which all the laws must be in conformity with the injunctions of Islam. 14 centuries ago, Islam gave a complete code of conduct for the entire humanity. This means, that when no such formal developed legal systems were present, Islam came forward for the protection of the rights of people. Quran and Sunnah constitute the primary sources of Islamic law. The reason behind this is quite genuine, the divine message from Allah Almighty is present in the shape of the Holy Quran, and that message is translated by the Holy Prophet (PBUH) which is called Sunnah. Islamic law derives its authority from these two primary sources. This research which aims to discuss the Enforced disappearances rotates around basic Human Rights such as the right to a fair trial, the right to due process of law, the right to protection from arbitrary arrests etc. As already discussed, any research is incomplete without being validated by Islamic law.
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MARTÍNEZ DE BRINGAS, Asier. "Los derechos sociales ante la vulnerabilidad. Retos y problemáticas en un marco de flexibilidad y desregulación." RVAP 111, no. 111 (August 30, 2018): 143–67. http://dx.doi.org/10.47623/ivap-rvap.111.2018.04.
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LABURPENA: Krisi ostea delakoak inoiz baino eragin handiagoa dauka eskubide sozialetarako aukeren eta premien baldintzetan. Testuinguru horretan, soldatako enpleguak funtsezko rola bete du eskubideak lortu eta horien babespean egoteko giltza gisa. Gainera, langile formalaren estatusa ez duten pertsonen bazterketa dakar eskubideen alorrean. Izan ere, eskubideak egituratuz joan den aztarna historikoak bereizi egin ditu, nolabait, «subjektu langilea» eta «eskubideen subjektua». Kontua da, baina, eskubideak eskuratzeko orduan eraginik handiena izaten ari den faktoreetako bat —enplegua, alegia—ezin dela inolaz ere izan eskubideon oinarri eta azalbide bakarra. Ikuspuntu horretatik, eskubide sozialen zentraltasun estrategikoa funtsezkoa izango da eskubideen interdependentzia apurtua berrezartzeko. Ikuspuntu horretatik, beharrezkoa da «existentziarako eskubide»aren kategoria berreskuratzea; hain zuzen ere, galdutako —edo aktibatu gabeko— gainerako eskubide sozialen ahalmena berreskuratzeko. RESUMEN: La llamada postcrisis afecta más que nunca a las condiciones de posibilidad y emergencia de los derechos sociales. En este contexto, el empleo asalariado ha jugado un papel fundamental como bisagra para adquirir derechos y estar protegido por estos. Implica, también, la exclusión de derechos para todas aquellas personas que no tienen el estatus de trabajador formal. La huella histórica con la que se han ido construyendo los derechos ha permitido una suerte de identificación entre el «sujeto trabajador» y el «sujeto de derechos». Los derechos, sin embargo, no se pueden sustentar ni explicar sólo desde uno de los factores que más está influyendo en el acceso a los mismos: el empleo. En este enfoque, la centralidad estratégica de los derechos sociales va a resultar fundamental para restaurar la interdependencia fracturada de los derechos. Desde esta mirada, resulta fundamental recuperar una categoría como el «derecho a la existencia» para reestablecer la potencialidad perdida, o no activada, del resto de derechos sociales. ABSTRACT: The so-called post-crisis affects more than ever the conditions of possibility and emergence of social rights. In this context, paid employment has played a fundamental role as a hinge to acquire rights and be covered by them. It also implies the exclusion of rights for all those who lack of the status of formal worker. The historical trail upon which rights have been built has allowed a sort of identification between the «working subject» and the «subject of rights». Rights, however, cannot be supported or explained only from one of the factors that is most influencing access to them: employment. In this approach, the strategic centrality of social rights has to be essential to restore the fractured interdependence of rights. From this perspective, it is essential to recover a category as the «right to existence» to reestablish the lost potential, or not activated, of the rest of social rights.
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Shala, Arben. "The right to translation and interpreting into and from Albanian as a reflection of fundamental civil rights in Kosovo between 1912 and 1999." STRIDON: Studies in Translation and Interpreting 1, no. 1 (July 7, 2021): 33–55. http://dx.doi.org/10.4312/stridon.1.1.33-55.
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Through the analysis of official legal documentation, this paper presents a historical overview of the development of laws and practices regarding language policies in Socialist Yugoslavia, and the use of the Albanian language in education and in the security sector in Kosovo with special emphasis on translation and interpreting. The results of the analysis show that in the 1970s socialist Yugoslav laws governing the equality of languages in a multilingual state, as codified in the constitution and other administrative and legal documents, were quite progressive on paper but did not entirely translate into political and linguistic equality in practice, but that they, nevertheless, resulted in the increased trust in the formal Kosovo governing institutions; and that the abolishment of translation and linguistic rights accompanied by the abandonment of other fundamental civil rights at the end of the 20th century eventually strengthened the ethnic tensions and divisions in the region. The article concludes that translation and interpreting represent key activities supporting the implementation of linguistic rights and trust in the legal system, and that linguistic rights are effective only if they are supported with other fundamental civil rights, such as the right to education and political participation.
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Mugga, Jovan Ivan, Joyeeta Gupta, and René Lefeber. "Shaping Africa’s Climate Action through Climate Litigation: An Impact Assessment." Recht in Afrika 26, no. 1 (2023): 26–54. http://dx.doi.org/10.5771/2363-6270-2023-1-26.
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The academic literature scarcely covers court cases from the Global South on climate change. Hence, this paper examines the impact of existing climate litigation on shaping Africa’s climate action and the role of courts in climate change jurisprudence on the continent. The paper determines that: NGOs are key actors in challenging state granted environmental authorisations of projects whose activities violate human rights, affect climate change, and contravene formal procedures. Courts are deciding that fossil fuel activities like gas flaring violate fundamental human rights and exacerbate climate change. They call for amending laws allowing for such activities to bring them in conformity with laws on the protection of fundamental human rights. In a balancing act of the socio-economic rights and environmental human rights violations courts acknowledge that fossil fuels form part of the energy mix of sources on account of existing government laws and policies aimed at addressing priorities like energy security and poverty alleviation, a context that should inform climate change action. The implication is that short of laws banning fossil fuel activities, these activities will continue under enabling laws thus limiting the extent of court’s intervention in challenging climate change.
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Mansouri, Seyed Mehdi, and Mohammad Reza Rahmat. "The Relationship Between the Right to Security and the Right to Freedom in Islam and the Study of Formal Rules for Relinquishing these Rights in Iran." Cuestiones Políticas 39, no. 71 (December 25, 2021): 767–88. http://dx.doi.org/10.46398/cuestpol.3971.47.
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This article raises fundamental conceptual questions about the relationship between the right to security and freedom, from the point of view of Islam. Also, in criminal law in Iran, the relationship between freedom and security is examined in all formal laws adopted after the Iranian Revolution. This study was conducted with a descriptive-analytical method using sources and documentary texts with the aim of explaining the relationship between the right to security and freedom in Islam and, at the same time, analyzing the formal rules of renunciation of these rights in formal laws and regulations. It is concluded that in Islam three types of minima, intermediate and maximum relations between security and freedom are conceivable. These three proportions, in addition to fulfilling the existence of security and freedom; introduce different types of relations between the two rights referred to according to the conditions that can be implemented. Likewise, when examining the formal norms, it can be recognized that the Code of Criminal Procedure, approved on 23.02.2014, has eliminated all the defects and ambiguities of the previous law in the field of the right of persons to liberty and personal security.
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Fatima, Iram, and Muhammad Waqar Naeem. "Theories of Empowerment, Relevance and Challenges it/they may have for Human Rights Education (HRE)." Scandic Journal Of Advanced Research And Reviews 4, no. 1 (January 31, 2023): 095–104. http://dx.doi.org/10.55966/sjarr.2023.4.1.0061.
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Some organizations and individuals have worked to advance the fundamental rights of humans by the Universal Declaration of Human Rights (UDHR) preamble, which states that every individual and every organ of the society shall strive to teach and educate to promote respect for these rights and freedoms. It has been UNESCO's mission, to advance human rights concepts and values in and through educational endeavors across the world were founded in 1945” for better readability. Education is the most effective tool for promoting harmony among people of all social group. To fulfill this difficult goal, the organization has worked closely with its allies (Tibbitts, 2002).In recent years, the sector of human rights education (i-e. HRE) has become prominent and important worldwide. Education for intercultural understanding has been gaining momentum since the early 1990s; it is often intertwined with other areas of education such as citizenship education, anti-racism, and antisemitism educational programs and intercultural understanding educational programs. It is true that HRE has its roots in the non-formal education sector and is used to train professionals as journalists, teachers, and law enforcement officers as those in the official field of education (Higgins, 1996).UDHR's objectives are put into practice through HRE, a purposeful effort to create a worldwide human rights culture. The values, awareness, accountability, and frameworks for human rights education practice in formal and non-formal education sectors (Tibbitts 2002). There was an awareness of educational programming, learning theory, and social change included in the HRE around the global world (Tibbitts, 2002). The learning objectives, student target groups, and other practical educational programming features such as content and methodology were all considered while developing the original models from a practitioner's perspective. Practice and social change techniques were intertwined with HRE practice models that were developing (Bajaj & Monisha, 2011).
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Xavier, Fernando Cesar Costa. "Animal rights and environmemntal rights in Brazilian Supreme Court." Law Enforcement Review 2, no. 1 (April 12, 2018): 133–40. http://dx.doi.org/10.24147/2542-1514.2018.2(1).133-140.
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The subject. The article analyzes the arguments of the Federal Supreme Court of Brazil, used in the consideration of disputes concerning animal rights, in comparison with the developments of theorists in this field.The purpose of the article is to justify the necessity of respect for the rights of animals and the “animal dignity” by the courts.The methodology includes formal-legal analysis of courts’ decisions, comparative-legal analysis and synthesis as well as formal-logical analysis of scientific researches in the field of animal rights.The main results and scope of application. It is wrong to claim that the Brazilian Supreme Court decision in “Vaquejada” case (or even in “Farra do Boi” or cockfights cases) would be an increase in the process of a supposed recognition of animal rights in the Brazilian constitutional jurisdiction. In such cases, most of the Judges who participated in the trial pondered and reinforced the prevalence of environmental law, including it wildlife protection (and non-submission of the animals to cruelty), pursuant to Art. 225, § 1, VII, of the Brazilian Constitution. In this way, it would have been disregarded the categorical difference between environmental law and animal rights. The Constitution itself encourages confusion between those categories when dealing with the prohibition of animal cruelty in a chapter on the environment (chap. VI). This article argues that the focus on the statement of environmental law, the Supreme Court allows them to be strengthened arguments considered as obstacles to the defenders of animal rights, particularly the anthropocentric argument that the balanced environment is important to make possible to human beings more quality of life. Analyzing the decisions, especially in of Vaquejada and Farra do Boi cases, it appears that points many important analyzed in the theoretical debate about animal rights, such as the notions of “animal dignity” and “flourishing life” are totally neglected. The article uses widely the arguments presented by Martha Nussbaum in her text Beyond “Compassion and humanity”: Justice for Nonhuman Animals, particularly to show that the approach of “capabilities” developed by it can provide a better theoretical orientation of the approaches Kantian contractualism and utilitarianism to the animal rights, mainly because it is able to recognize the breadth of the concept of “animal dignity”. It is considered that the central point to be faced in order to recognize the rights of animals is the one raised by the High Court of Kerala in the case of Nair v. India Union (June 2000), which Nussbaum highlights as the epigraph of the her text: “Therefore, it is not only our fundamental duty to show compassion to our animal friends, but also to recognize and protect their rights [...] If human beings have a right to fundamental rights, why not animals?”.Conclusions. Understanding the prohibition of animal abuse as a measure of environmental protection for the benefit of present and future generations is incorrect and does not take into account the basic principles that form the core of animal rights.Brazilian law will go a long way towards protecting animal rights when (and if) it expressly recognizes that animals (at least some of them) are creatures created for a decent existence”; when, for example, it permits the trial of habeas corpus filed in favour of a bull locked up in a farm or slaughterhouse.
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Rodriguez, Piedad Andrea, Daniela Alejandra Gómez, and Daniela Caicedo. "Los Principios Ruggie y la debida diligencia en el derecho fundamental de Consulta Previa." REVISTA CONTROVERSIA, no. 212 (December 14, 2019): 49–66. http://dx.doi.org/10.54118/controver.vi212.1168.
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En este artículo se aborda la relación entre empresa y Estado, que se encuentra ligada por la aplicación de los Principios Rectores de las Naciones Unidas sobre las empresas y los derechos humanos «John Ruggie». Aunque estos principios no son fuente formal del derecho internacional, ya que son soft law, en su esencia, recopilan las bases para mitigar, prevenir y reparar las afectaciones a derechos humanos que causen las empresas en el desarrollo de actividades económicas a comunidades que se encuentren en un territorio específico. Debido a esto, cada vez más se ve su aplicación en políticas públicas por parte de los Estados y en planes de ejecución empresarial mediante la aplicación de la debida diligencia. Este concepto cobra mayor relevancia por ser una herramienta más de defensa de la Consulta Previa, y a su vez ser el puente de conexión entre la aplicación de los Principios Rectores y los efectos que conlleva generar una afectación a los derechos humanos.
Abstract: This article approach the relationship between business and the State is linked by the application of the United Nations Guiding Principles on Human Rights and Business «John Ruggie». Although these principles are not a formal source of international law since they are soft law, in essence, they gather the bases to mitigate, prevent and repair the human rights violations caused by companies in the development of economic activities to communities that are in a specific territory. Also, it is increasingly seen its application in public policies by the States and in business execution plans through the application of due diligence. This concept is more relevant because it is one more tool to defend the Prior Consultation; and at the same time, be the connecting bridge between the application of the Guiding Principles and the effects entailed in generating an impact on human rights.
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Hermanto, Bagus. "Dynamics on Constitutional Court Decision towards Indonesia Citizenship Arrangement." Jurnal Konstitusi 20, no. 2 (June 1, 2023): 216–37. http://dx.doi.org/10.31078/jk2023.
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The 1945 Constitution amendment led into Indonesia state order transition that related also towards state fundamental aspects, including citizenship issue. Discourse has been raises on material and formal context on citizenship arrangement, and develops consideration according to Constitutional Court consent into several Constitutional Court Decisions. This article intention related on dynamics and problematic over citizenship arrangement after Indonesi reform, and Constitutional Court Decision consideration on citizenship issues to evaluate needs to reformulate citizenship arrangement. This article was arranged based on legal research with thesis on arrangement dynamics and Constitutional Court Decision relevance on citizenship supported with statutory laws, conceptual, legal facts, and legal cases approaches. The results reflected citizenship arrangement dynamics related material, formal, legal needs, era and human rights development comprehensively. The Constitutional Court Decision considers Indonesia citizenship into nationalities, maximum protection, full constitutional rights, and comitment to defending single citizenship stelsel into current statutory laws.
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Sereda, Vladyslava. "CURRENT SITUATION AND PROSPECTS OF ENFORCEMENT BY THE EUROPEAN COURT OF HUMAN RIGHTS (ECHR) FOR THE RIGHTS OF FOREIGN CITIZENS." Scientific works of National Aviation University. Series: Law Journal "Air and Space Law" 3, no. 60 (September 30, 2021): 122–26. http://dx.doi.org/10.18372/2307-9061.60.15963.
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Purpose: to conduct a comprehensive analysis of the current state and practice of consideration of cases concerning the rights of foreign citizens and stateless persons by the European Court of Human Rights (ECHR). Research methods: synthesis, analysis, formal-legal, comparative-legal. Results: the main types of violations of the Convention for the Protection of Human Rights and Fundamental Freedoms and its protocols in terms of granting rights to foreigners and stateless persons identical with nationals was established, the main grounds for extradition and criteria for violation of the right to liberty and security was identified. Discussion: the key cases brought against foreigners and stateless persons in the European Court of Human Rights are covered, international legal acts defining the rights of foreigners at the local level are considered, ECHR judgments on foreigners are analyzed in detail and eligibility criteria are determined for each of the main cases.
Keywords: ECHR; foreigner; stateless person; extradition; detention; right to vote.
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Hamuľák, Ondrej. "Penetration of the Charter of Fundamental Rights of the European Union into the Constitutional Order of the Czech Republic – Basic Scenarios." European Studies 7, no. 1 (December 1, 2020): 108–24. http://dx.doi.org/10.2478/eustu-2022-0049.
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Summary This paper deals with the question, whether, how and to what extent the Charter of Fundamental Rights of the EU could enter the scene of constitutional review before the Czech Constitutional Court. In connection to Czech Republic, this question must react on the special constitutional category – Czech constitutional order, which includes also international agreements on human rights which are binding for the Czech Republic. The paper analyses the question, whether EU Charter can be understood as such international commitment or not and what are the options of its application by the Czech Constitutional Court and also how we can define its relation to the constitutional order. Paper distinguishes 3 scenarios: 1) inclusion of the EU Charter into the constitutional order of the Czech Republic; 2) refusal of formal inclusion of the EU Charter into the constitutional order of the Czech Republic; and 3) understanding of the EU Charter as association of constitutional order, capable to be used within the constitutional order even without the formal inclusion into the set of Czech constitutional rules.
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Kharmaev, Yury. "ON THE PRACTICAL SIGNIFICANCE OF RESEARCH, MADE BY SCIENTIFIC COMMUNITY OF BORDERING STATES." Advances in Law Studies 8, no. 1 (June 29, 2020): 16–20. http://dx.doi.org/10.29039/2409-5087-2020-8-1-16-20.
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The article is devoted to the researches analysis held by the scientific community of neighboring states, which are of a practical assistance to foreign citizens while visiting neighboring territories. As the subject of the study, conceptual issues of protecting the fundamental rights and freedoms of foreign citizens in the host country were selected (for example, Russia and Mongolia). Dialectic approach was used when disclosing the research’s general theme, the following methods were used: formal-logical, comparative-legal, sociological. It is well determined that joint science researches made by the science community representatives of bordering states correspond to the requirements of the time and find receptive audience and support by citizens of the neighboring states in the context of rights and fundamental freedoms protection. The aforementioned concept for the first time considers the intersectoral principle of protecting the rights and freedoms of foreign citizens in the host country. The prepared theoretical developments and recommendations in the form of memos, booklets, brochures in different languages reflect the specifics of different industries, such as civil, administrative, constitutional, criminal law, etc.
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Bysaga, Yuriy. "CONSTITUTIONALLY LEGAL MECHANISM FOR ENSURING RIGHTS AND FREEDOMS OF A PERSON AND A CITIZEN: CONCEPTS AND DIRECTIONS TO ACT." Constitutional and legal academic studies, no. 2 (July 16, 2021): 6–12. http://dx.doi.org/10.24144/2663-5399.2020.2.01.
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One of the indicators of the fulfillment of international obligations by the state in the field of human rights is the perfect definition of the mechanism for ensuring the rights and freedoms of a person and a citizen. The purpose of this article is to clarify the concepts and directions of the constitutional and legal mechanism for ensuring the rights and freedoms of a person and a citizen.
The methodological basis of the conducted research is the general methods of scientific cognitivism as well as concerning those used in legal science: methods of analysis and synthesis, formal logic, comparative law etc.
The rights and freedoms of a person are complex. Structural elements of the human rights protection mechanism are the mechanism of legal influence in the field of human rights, the mechanism of legal regulation in the field of human rights, the legal framework of human rights, the system of human rights guarantees, and the system of human rights protection. Such legal phenomena as the mechanism of guaranteeing the fundamental rights and freedoms of citizens and the constitutional and legal mechanism of ensuring the fundamental rights and freedoms of citizens are not identical. Only the mechanism of guaranteeing the fundamental rights and freedoms of citizens contains both social and legal conditions and means that ensure the realization, protection and security of citizens' rights and freedoms.
The definition of the concept of constitutional and legal mechanism for ensuring the rights and freedoms of a person and a citizen has been clarified: this is the system of organizational and legal and legal means of influence, through which opportunities for the implementation of rights and freedoms of a person and a citizen are created, and in case of violation or threat of violation, their protection is exercised by the bodies which are not vested with jurisdiction and the protection of bodies vested with jurisdiction. The main activities of this mechanism are embodied into the forms of ensuring the constitutional rights and freedoms of a person and a citizen: ensuring the implementation, protection and security of these rights and freedoms
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Parkhomenko, Natalia. "Judicial doctrine in the legal system of the world." Yearly journal of scientific articles “Pravova derzhava”, no. 32 (2021): 48–57. http://dx.doi.org/10.33663/0869-2491-2021-32-48-57.
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Special characteristics of the perception of judicial doctrine in the countries of common and continental law, in the European community in terms of the harmonisation and strengthening the influence of the European Court of Human Rights on the juridical regulation, are defined. Special attention is paid to the identification of the essence and content oh judicial doctrine of the ECHR and its importance in the regulation of social relations. Generally accepted approach in the countries of continental law is the one under which the judicial practice and doctrine, as a result of compilation of jurisprudence, is not the source of law in formal-legal perception, but it is an important factor of the law-making. In the countries of common law, the legal doctrine has been developing by scaling up the experience of court’s decisions and the perception of the decisions of the judicial authorities as a source of law. The case law of the European Court of Human Rights as a part of European legal system plays the harmonisation role. The judicial doctrine of European Court of Human Rights is one of the sources of law for the counties of the European Area and countries, that adhered to the European Convention for the Protection of Human Rights and Fundamental Freedoms, strengthened its grip since the end of the twentieth century and in the twenty-first century, especially, it increased the influence on the regulation of the international relations and the domestic relations as well. Such doctrine became a part of their national legislature. The above mentioned is confirmed by legal force and by place in national legal systems of judicial doctrine of European Court of Human Rights, containing general principles or framework for the protection of human rights and freedoms. That’s why its perception is performed as a general rule , source of law, but not the judgment in a particular case, which is not relevant to the hearing of other cases. For this, important is constitutional endorsement of ECHR’s decisions in the hierarchy of legal acts, or sources of law in formal-legal perception. For this moment, there had been a convergence of conceptual approaches to understanding the legal doctrine in general and judicial doctrine in particular. There is a fundamental importance of the judicial doctrine, which is a precondition and a source for the law-making, law enforcement, and also it could act as a direct source of law in formal-legal perception.
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Lynch, Nessa. "Restorative Justice through a Children's Rights Lens." International Journal of Children's Rights 18, no. 2 (2010): 161–83. http://dx.doi.org/10.1163/157181810x12592206285646.
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AbstractRestorative justice is an alternative to the formal criminal justice system which focuses on repairing the harm caused to the victim of the offence, effecting reconciliation between victim and offender, and the re-integration of the offender. Its use is widespread in national youth justice systems. This article will analyse the use of restorative justice in connection with offending by children. It will be argued that despite evidence of endorsement by the Committee on the Rights of the Child, the fundamental concepts of restorative justice are at odds with a children's rights model of youth justice as required by international standards. Not only do similar concerns about due process rights exist for children as for the adult system, it is difficult to reconcile the best interests of the child standard with the victim focused approach of restorative justice, and there are doubts as to whether children have sufficient maturity for remorse and reintegration.
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Schofield, Norman, Gary Miller, and Andrew Martin. "Critical Elections and Political Realignments in the USA: 1860–2000." Political Studies 51, no. 2 (March 27, 2003): 217–40. http://dx.doi.org/10.1111/1467-923x.00181-i1.
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The sequence of US presidential elections from 1964 to 1972 is generally regarded as heralding a fundamental political realignment, during which time civil rights became as important a cleavage as economic rights. In certain respects, this realignment mirrored the transformation of politics that occurred in the period before the Civil War. Formal models of voting (based on assumptions of rational voters, and plurality-maximizing candidates) have typically been unable to provide an account of such realignments. In this paper, we propose that US politics necessarily involves two dimensions of policy. Whatever positions US presidential candidates adopt, there will always be two groups of disaffected voters. Such voters may be mobilized by third party candidates, and may eventually be absorbed into one or other of the two dominant party coalitions. The policy compromise, or change, required of the successful presidential candidate then triggers the political realignment. A formal activist-voter model is presented, as a first step in understanding such a dynamic equilibrium between parties and voters.
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Vortherms, Samantha A. "China's Missing Children: Political Barriers to Citizenship through the Household Registration System." China Quarterly 238 (December 6, 2018): 309–30. http://dx.doi.org/10.1017/s0305741018001716.
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AbstractApproximately 13 million Chinese lack hukou, the formal household registration. This prevents them from claiming full citizenship rights, including social welfare, formal identity documents and employment in the state sector. The government blames birth planning policies for the unregistered population, but this explanation ignores the role of internal migration. Because citizenship rights are locally determined and the hukou system is locally managed, migrants face significant barriers to registering their children. This article systematically analyses the political determinants of the unregistered population nationwide. Based on a logit analysis of a sample of 2.5 million children from the 2000 census, I find that children born in violation of the one-child policy do have lower rates of registration and that children born to migrant mothers are four times more likely to be unregistered than registered. Continuing government focus on the effect of birth planning ignores the more fundamental institutional barriers inherent in the hukou system.
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Karamzadeh, Amin, and Zahra Feiz. "Principles Governing a Fair Trial under Islamic Jurisprudence and International Law." International Journal of Multicultural and Multireligious Understanding 8, no. 2 (February 19, 2021): 452. http://dx.doi.org/10.18415/ijmmu.v8i2.2359.
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A fair trial along with the preservation of human dignity is one of the most important features of Islamic judicial measurement and is a guarantee for individuals to enjoy the fundamental principles of human rights such as freedom and equality. The administration of judicial justice is not only possible due to the existence of substantive laws, but also its executive and formal methods have a prominent and important role in this field, which is also understood by the international judicial system today. However, the weakness of human thought in formulating comprehensive and efficient laws prevents the realization of justice and the achievement of a fair trial. The present article - with a descriptive-analytical method - deals with the formal and principled laws in a fair trial from the perspective of the Islamic judicial system and concludes that the Islamic judicial system includes principles that guarantee the rights of the accused to the highest degree and observe and include this Formal principles and rules in law are a step towards establishing justice in judicial proceedings; However, these laws have been approved and emphasized much earlier than other systems along with the preservation of human dignity in the Islamic judiciary.
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Ajit Kumar. "Legal and Constitutional Concept of Human Rights." Knowledgeable Research: A Multidisciplinary Journal 1, no. 10 (May 31, 2023): 52–67. http://dx.doi.org/10.57067/kr.v1i10.84.
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The concept of human rights is very broad. It cannot be bound by any limit, it is inherent in every constitution of the world. Human rights originated in England. The history of human rights began in the field of internal law at the time of the Magna Carta. The Petition of Rights was passed in 1628 on the basis of the Magna Carta. Later, in 1688, the Declaration of Rights was passed, which was understood as the modern Declaration of Human Rights, it was greatly influenced by the French Revolution and the American Constitution. Human rights practice is long enough. Human rights were created in the 18th century by the American and French revolutions. Most modern constitutions incorporate formal declarations of rights by adopting the influence of France and America. In 1789, the National Assembly of France adopted the American Declaration of Rights as one of the initial constitutional amendments and incorporated it into the constitution.In 1789, the National Assembly of France adopted the American Declaration of Rights as one of the initial constitutional amendments and incorporated it into the constitution. or gone Part III deals with the rights recognized as fundamental rights under the Constitution of India and Part IV discusses the extent to which human rights are protected by national institutions.
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Babin, Igor. "Features of the Application of the Decisions of the European Court of Human Rights by Ukrainian Courts in Tax Cases." DANUBE 11, no. 1 (March 1, 2020): 75–89. http://dx.doi.org/10.2478/danb-2020-0005.
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Abstract The purpose of this article is to explore the subject of applying to the European Court of Human Rights in tax cases, the place of decisions of the European Court of Human Rights in the system of sources of tax law, the problems arising from the application of ECtHR decisions by Ukrainian courts in tax cases. The research was carried out using formal-dogmatic, system-structural, comparative-legal, historical and other methods of scientific cognition. The author concludes that it is important to use the decisions of the European Court of Human Rights to resolve public law disputes, the subject of which is public finances. After all, the Ukrainian tax system and tax legislation, the tax status of taxpayers and tax authorities should be based on the fundamental principles enshrined in the Convention and which have repeatedly been systematically interpreted in the decisions of the European Court of Human Rights.
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Presnyakov, Mikhail V. "Subjective public rights and the problem of the certainty of the legal status of the individual." Gosudarstvo i pravo, no. 7 (2022): 52. http://dx.doi.org/10.31857/s102694520021207-8.
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The article is devoted to the analysis of the development of perceptions of human rights and freedoms from the understanding of them as “reflexes” of objective law to the recognition of self-sufficient, independent of the establishment in positive law of subjective public rights. At the same time, the author raises the problem of the certainty of the content of subjective public rights: if fundamental rights and freedoms determine the meaning and content of positive law, what determines the content of the rights and freedoms themselves? This problem is dealt with in the article in connection with the justice of fundamental rights and freedoms, the possibility of their direct effect, the generation of rights of new generations (the fourth generation of rights). In the framework of the research, great attention is paid to the works of classics of the theory of human rights and freedoms both in the world legal literature (R. Jering, G. Ellinek, J. Carbonier, M. Kumm, etc.), and Russian legal scholars (B. Kistyakovsky, Yu. Gambarov, Y. Magaziner, etc.). In order to achieve the purpose of the study, the author uses both the popular scientific dialectical method, which allows to understand the ambivalence of understanding of the legal categories under consideration, as well as methods of formal logic, comparative method, system-structural method, etc. As a result of the study, the author concludes that the specific nature of fundamental rights and freedoms lies in the system of addressing them: the State is the main addressee and the obliged person, and special justice is the possibility of direct protection, even in the absence of a sufficiently defined mechanism in legislation by national constitutional courts and inter-State bodies for the protection of human rights. The article provides a brief analysis of the so-called fourth-generation rights, justifies the conclusion that there is a distinction between individual claims, which are the result of the general principle of legal freedom – “permitted, all that is not prohibited” and valid subjective rights. According to the author, a wide range of “somatic rights” put forward in the special literature is essentially such individual claims and closer to the notion of “legal reflex” than a valid subjective right.
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Kovač, Polonca. "Openness and Transparency in (Slovene) Administrative Procedures as Fundamental European Principles." NISPAcee Journal of Public Administration and Policy 9, no. 2 (December 1, 2016): 49–67. http://dx.doi.org/10.1515/nispa-2016-0014.
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Abstract Openness and transparency are general administrative principles, closely related to lawfulness, accountability, responsiveness, participation and other elements of good administration. Despite their long existence in theory and legal documents, both at the European and national levels, the content and the relation of and among the respective principles is blurred. This applies even in single-case administrative procedures through the classic rights of defense, such as the right to access to information or the right to be heard. The paper explores these dimensions based on comparative analyses of the EU Charter, the OECD principles on good administration and governance and the Slovene law on administrative procedures, proving compliance between Slovene and European regulation. Furthermore, a consistent definition is proposed. Transparency is thus understood as parallel to participation. Both are seen as subcategories of openness which, as the sum of the rights of defense, is based on lawfulness and leads to accountability and ethics. However, as revealed by an empirical survey in 2015, the Slovene public administration sees these issues in a rather formal way. Finally, suggestions are made for future legislation and its implementation in terms of open and good administration.
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Amadi, Sam. "Doing it right: A rule of law critique of privatization methodology in Nigeria." Journal of Sustainable Development Law and Policy (The) 10, no. 1 (August 1, 2019): 1–31. http://dx.doi.org/10.4314/jsdlp.v10i1.4.
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This article undertakes a rule of law critique of privatization as economic reform policy in Nigeria. The rule of law approach interrogates not just the policy rationales of the programme but also its methodology. The article distinguishes between a formal and substantive justice conception of rule of law and argues that the substantive justice conception of rule of law and its policy imperatives, sourced from the Fundamental Objectives and Directive Principles of State Policy in Chapter 2 of the 1999 Constitution, provides a veritable framework to realize the strategic goals of privatization in Nigeria.Keywords: Privatization, rule of law, justice, efficiency, economic growth, equality, fundamental human rights, social justice.
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Darabi, Hassan, and Danon Jalali. "Illuminating the formal–informal dichotomy in land development on the basis of transaction cost theory." Planning Theory 18, no. 1 (June 5, 2018): 100–121. http://dx.doi.org/10.1177/1473095218779111.
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Transaction cost theory is largely used to investigate the formal domain of land and housing. In the informal domain, however, this perspective has been employed largely as a supplement in addressing the other fundamental notion in new institutional economics—property rights—despite the possibility that informality in land development can emerge regardless of the informality or formality of such rights. To cover this gap, this study developed a theoretical framework based on transaction cost theory to explain the formal–informal dichotomy in land development. The proposed framework maintains that land development depends on engaging in transactions that involve total or partial ownership of a combination of capital and land through lease and/or sale contracts, which enable landowners to earn from the new rental prices produced by the increase in land prices. Landowners are afforded two avenues from which to reduce transaction costs, namely, formal and informal institutional frameworks, each defining and enforcing restrictive rules on agents’ actions. These avenues, however, are simultaneously a source of new transaction costs that can affect the expected financial return of land development. Landowners therefore tend to choose the institutional framework that entails lower transaction costs but enables higher gains. Thus, the higher transaction costs associated with a formal institutional framework are the primary deterrents to the selection of this structure. In turn, informal land development continues to expand, regardless of the existence of formal prohibitive measures. We investigated the formal–informal dichotomy in the rural land development process in Tehran Province, Iran. The results indicated that transaction costs cause inefficiency in formal institutions, thereby driving the perpetuation of informal development.
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López Guerra, Luis. "El Tribunal Europeo de Derechos Humanos, el Tribunal de Justicia de la UE y «le mouvement nécessaire des choses»." Teoría y Realidad Constitucional, no. 39 (January 1, 2017): 163. http://dx.doi.org/10.5944/trc.39.2017.19151.
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El progresivo desarrollo de dos sistemas de protección internacional de derechos humanos en Europa, a partir del Convenio Europeo de Derechos Humanos de y de la Carta de Derechos Fundamentales de la Unión Europea, hace necesaria una coordinación entre ellos, y particularmente entre los órganos jurisdiccionales en la cima de cada sistema, es decir, los Tribunales de Estrasburgo y Luxemburgo. En el presente artículo se mantiene que, pese a la ausencia de mecanismos formales de coordinación, debido a la no adhesión, hasta el momento, de la Unión Europea al Convenio, esa coordinación se está produciendo mediante una concordancia práctica entre la jurisprudencia de ambos tribunales, que, en un proceso de diálogo formal e informal, van delimitando sus respectivos ámbitos de jurisdicción.The progressive development of two systems of international protection of Human Rights in Europe, one derived from the European Convention on Human Rights and the other from the Charter of Fundamental Rights of the European Union, requires coordination, particularly between the two main jurisdictional bodies of those systems, the Strasbourg and Luxembourg Courts. This article asserts that in spite of the lack of formal mechanisms of coordination due to the EU’s non-accession (for the time being) to the Convention, coordination is nevertheless achieved through a practical concordance between the case law of both courts, which in a process of both formal and informal dialogue is defining the scope of the two Courts’ respective jurisdictions.
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Ajanović, Enver. "Pravo pristupa podacima u službenoj evidenciji / The Right to Access Official Records Data." Pregled: časopis za društvena pitanja / Periodical for social issues 62, no. 1 (July 6, 2021): 75–84. http://dx.doi.org/10.48052/19865244.2021.1.75.
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The BiH Parliamentary Assembly adopted the Law on Freedom of Access to Information in BiH in 2000 and amended it in 2006, 2009, 2011 and 2013. In the Law’s preamble, only Article IV paragraph 4 under item a) of the Constitution of BiH is determined as a formal legal basis. The preamble does not contain a substantive legal basis, as there is no clear explicit legal basis for this law in the BiH Constitution. An indirect legal basis is contained in the European Convention for the Protection of Human Rights and Fundamental Freedoms in the provision on freedom of expression, as this freedom includes the freedom to receive and impart information. Only the EU Charter of Fundamental Rights contains the true legal basis for this law. In accordance with the administrative work of performing other administrative and professional tasks and the purpose of this general legal act, it is necessary to change its name to the Law on the Right of Access to Data in Official Records.
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Andrusiv, L. "The concept of «possession» in the practice of the European court of human rights." Scientific and informational bulletin of Ivano-Frankivsk University of Law named after King Danylo Halytskyi, no. 13(25) (June 8, 2022): 141–50. http://dx.doi.org/10.33098/2078-6670.2022.13.25.141-150.
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Purpose. The purpose of the article is to reveal the concept of «property» and determine its characteristics in the case law of the European Court of Human Rights Methodology. The methodology includes a comprehensive analysis and generalization of the case law of the European Court of Human Rights, scientific positions and the formulation of the relevant features. The following methods of scientific cognition have been used during the research: dialectical, hermeneutic, method of analysis and synthesis, prognostic, systemic and formal-legal. Results. In the course of the research it has been stated that the interpretation of the concept of property in the Civil Code of Ukraine and the practice of the European Court of Human Rights are different. The cases against Ukraine in which a violation of Article 1 of Protocol No. 1 to the Convention was found have been considered and the facts constituting the violation have been singled out. It has been emphasized that, according to the case law of the European Court of Human Rights, arrears constitute property for the purposes of Article 1 of Protocol No. 1. The autonomy of the concepts of «property», «possession» is highlighted and a much broader approach to the concept of «possession» is used compared to the national legislation of Ukraine, as the European Court is not limited to property rights and is not bound by formal classifications. Practical significance. The results of the study can be used to improve the legal regulation and legal consolidation of the concept of «possession», as well as in the trial. Key words: European Court of Human Rights, Convention for the Protection of Human Rights and Fundamental Freedoms, property, possession, protection of property rights, debt by the court decision
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Dobrev, M. V. "The concept of «property» (according to the practice of the European court of human rights)." Uzhhorod National University Herald. Series: Law, no. 64 (August 14, 2021): 368–71. http://dx.doi.org/10.24144/2307-3322.2021.64.67.
Full textAbstract:
The article is devoted to the autonomous meaning of the term «property» used by the European Court of Human Rights. Emphasis is placed on the fact that in national legal systems, approaches to defining the concept of proper-ty, property rights have been and remain different. The violation of property as ownership exclusively of material things, excluding other rights and interests (substantive legal interests), the application of a formal classification of objects of law leads to violations of the right of everyone to own, use and dispose of their property by public author-ities and local governments. property. As the judgment of the European Court of Human Rights is a source of law in the member states of the Council of Europe, national law cannot contradict the Convention and the case law of the European Court of Human Rights.It is noted that the European Court of Human Rights, applying the autonomous meaning of the term «proper-ty», which does not depend on the formal classification of property rights in the national legislation of the mem-ber states of the Council of Europe, applies the following approaches to the concept of «property», the concept and content of property rights. that would be compatible with national legal systems. As a result of the analysis of the case law of the European Court of Human Rights, it was established that «property» is: 1) ownership of existing material things; 2) assets, including claims that the entity can claim to have at least a «legitimate ex-pectation» that they will be realized; 3) other rights and interests that constitute assets and can be considered as «property rights».
Property that falls within the scope of Art. 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms constitute, inter alia, economic resources to which natural persons have no registered property rights, but which have originally belonged to their ancestors and parents for economic activities, as well as income that individuals receive from the use of these resources.
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Mendzhul, M. V. "Progress towards equality in the practice of the ECTHR and the partnership agreement in de facto alliances." Uzhhorod National University Herald. Series: Law 66 (November 29, 2021): 171–75. http://dx.doi.org/10.24144/2307-3322.2021.66.45.
Full textAbstract:
The article examines the progress towards equality in the practice of the ECtHR and its significant impact on the partnership agreement in de facto alliances. It has been established that over the last thirty-five years, the approaches of the European Court of Human Rights to the issue of the right of same-sex partners to family life and its formal recognition have undergone significant changes. It was found that the issue of discrimination was the subject of a number of cases concerning various rights of homosexual unions.
It is substantiated that in the aspect of the right to formal recognition of same-sex partnerships by the state, the decision of the European Court of Human Rights in the case “Oliari and others v. Italy ». It was found that despite many years of case law of the European Court of Human Rights and the provisions of Council Regulation № 2016/1104, not all EU countries have provided legal certainty for same-sex couples, even in the form of civil partnerships (namely, Slovakia, Poland, Romania, Bulgaria, Latvia and Lithuania).
The French experience of regulating the procedure for concluding, essential conditions of a partnership agreement, as well as the procedure for its termination is studied.
It is substantiated that taking into account the European integration processes in Ukraine, reforming its private law according to European standards, our state, given the principle of equality and positive obligations under Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms should guarantee partners in de facto unions sex legal certainty. In our opinion, it is optimal to amend the Central Committee of Ukraine and grant the right to conclude civil partnership agreements to persons regardless of the article. At the same time, the IC of Ukraine must maintain a heteronomous approach, ie guarantee the right to marry persons of the opposite sex, which fully complies with Art. 12 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Given that a partnership agreement can be an effective legal regulator of relations between individuals in de facto unions, it is worth borrowing the positive experience of France in improving Ukrainian legislation.
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Karvatska, Svitlana, Mariia Blikhar, and Nataliia Huralenko. "Evolutionary trends in the interpretation of the European Court of Human Rights under the European Convention on Human Rights." Cuestiones Políticas 39, no. 68 (March 7, 2021): 88–102. http://dx.doi.org/10.46398/cuestpol.3968.04.
Full textAbstract:
The purpose of this Article is to analyse evolutionary trends in the interpretation of the European Convention on Human Rights (ECHR) by the European Court of Human Rights (ECtHR). To achieve this goal, a wide range of general philosophical methods were used. The Article submits that the ECHR has shown a growing commitment to the evolutionary method of interpretation, using the doctrine of a "living instrument", the ECHR, which is particularly important for Member States with specific problems, although this method limits the scope in the discretion of the State. It is concluded that the interpretative methodology used by the ECHR involves the use of its methods, including increasingly developing methods of consensus, efficiency, judicial activism, comparison, innovative interpretation, autonomous method, and "balance" method. This demonstrates, inter alia, the unlimited potential to improve the ECHR's interpretation of conventional standards. In the context of modern transformations in the direction of proactive international justice, judicial activism objectively departs from a formal application of legal norms and reflects the ECHR's desire to protect the fundamental human rights of individuals and communicatethem.
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Celeste, Edoardo, Sorcha Montgomery, and Arthit Suriyawongkul. "Digital technology and privacy attitudes in times of COVID-19: formal legality versus legal reality in Ireland." Northern Ireland Legal Quarterly 73, no. 2 (July 28, 2022): 283–309. http://dx.doi.org/10.53386/nilq.v73i2.959.
Full textAbstract:
The adoption of digital technologies to counteract the spread of COVID-19 has resulted in a major exposure of our rights to privacy and data protection. An empirical study conducted in Ireland by the Science Foundation Ireland-funded project PRIVATT demonstrates that privacy attitudes have shifted, resulting in a greater willingness to share personal data in order to combat the pandemic, while, at the same time, upholding a persistent mistrust in the public and private institutions overseeing this global health crisis. This article interprets these findings from a socio-legal perspective, arguing that people tend to overlook the inalienable nature of the essence of their rights to privacy and data protection, the compression of which is not admissible under EU law. Moreover, the widespread mistrust of public and private actors evidences a divergence between the formal legality of the technological solutions adopted and the legal reality that brings about the Irish public’s perception of government measures as potentially infringing their fundamental rights. These considerations will prompt recommendations in pursuit of enhancing transparency, involvement in decision-making processes and data protection literacy amongst the population.
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Margaritis, Konstantinos. "Strengthening the founding values of the EU: The potential role of the Fundamental Rights Agency." European View 18, no. 1 (March 28, 2019): 97–104. http://dx.doi.org/10.1177/1781685819840276.
Full textAbstract:
The rule of law is one of the founding values of the EU, as indicated in Article 2 TEU. This provision recognises that the rule of law is a core value, inherent to liberal democracy, and one which characterised the Union and its member states long before the formal establishment of the EU by the Maastricht Treaty. However, several member states, most notably Poland and Hungary, seem to have placed this value in jeopardy, leading EU institutions to disagree on how to combat this problem and its political consequences. The aim of this article is to propose a solution that involves a rather neglected, yet certainly competent actor, the Fundamental Rights Agency. The outcome would be twofold: on the one hand, the rule of law would be vitally strengthened; on the other, the role of the Agency would be fortified in line with its scope.
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Goodwin-Gill, Guy S., R. K. Jenny, and Richard Perruchoud. "Basic Humanitarian Principles Applicable to Non-Nationals." International Migration Review 19, no. 3 (September 1985): 556–69. http://dx.doi.org/10.1177/019791838501900310.
Full textAbstract:
This article seeks to: 1) examine the general status in international law of certain fundamental human rights, to determine the minimum “no derogation” standards; and 2) survey briefly a number of formal agreements between states governing migration matters, while examining some of the standard-setting work undertaken by the International Labor Organization and other institutions. Finally, certain conclusions will be drawn regarding the content and administration of the relevant law, in the light of the requirement to ensure the effective and efficient implementation of international legal obligations.