Dissertations / Theses on the topic 'Wordl Human rights court'

La recherche sur la légitimité et l’effectivité du CDH vient du constat de la méconnaissance générale de la portée de sa mission, laquelle produit des effets néfastes sur celui-ci. Cette étude montre que malgré les limites imposées à cet organe par le PIDCP, son œuvre déployée a une portée considérable dans la protection internationale des droits de l’homme. Pour parvenir à cette fin, le CDH à adopter des techniques d’interprétation qui lui ont valu l’attention des organes tiers renforçant, par là même, sa légitimité. Poursuivant cette même finalité, afin de pallier l’absence de force obligatoire de ses décisions, il s’emploie à conférer à son activité une nature comparable à celle d’une juridiction formellement instituée afin d’attirer l’attention des États sur le degré d’autorité dont elles sont revêtues. Toutefois, nous proposons qu’à défaut que les États franchissent un nouveau cap en mettant en place une juridiction unique en la matière, il urge que le système soit rationalisé au nom de l’intérêt individuel. L’effectivité des droits de l’homme étant tributaire de leur volonté, la solution contre les écueils actuels nécessite un projet politique d’envergure de leur part
The research on the legitimacy and effectiveness of the HRC stems from the observation that there is a deep lack of knowledge regarding the scope of its mission, which has a negative impact on it. This study shows that despite the limits imposed on this body by the ICCPR, its work has a very significant impact on the international human rights protection. To achieve this end, the HRC adopted interpretation methods that have earned it the attention of others bodies, strengthening by the way its legitimacy. Pursuing the same goal, in order to overcome the non-binding nature of its decisions, it endeavors to give its activity the impression of that of a formally court-like function with the purpose to facilitate States’ compliance by the degree of authority with which they are endowed. However, we propose that if States do not take a new step by setting up a single international court in human rights field, it is an urgent that the UN treaties bodies system, as it known today, be rationalized for the individual’s interests. As the effectiveness of human rights dependent on States willingness, the solution against the current pitfalls requires a large-scale political project supported by them

La sanction internationale de la violation des droits de l'homme peine à atteindre les objectifs qui lui sont assignés. Les sanctions non juridictionnelles mises en place au sein du système de la Charte des Nations unies sont le régime de droit commun, mais leur efficacité reste limitée pour la victime. Les Comités créés pour veiller à l'application des conventions relatives aux droits de l'homme prennent de simples recommandations à l'issue de l'examen des communications individuelles et sont incompétents pour connaître des violations graves. À défaut de mécanisme de sanction des violations graves, le Conseil de sécurité a étendu l'application des mesures collectives aux droits de l'homme. Le recours ainsi fait au Chapitre VII est confronté aux difficultés opérationnelles qui en limitent la portée. Face à ces difficultés, le Conseil de sécurité a diversifié ses sanctions. Toutefois, qu'elles soient des sanctions ciblées ou des mesures juridictionnelles comme la création de juridictions pénales ou la saisine de la Cour pénale internationale, les mesures collectives sont axées sur l'individu et non l'État. Bien que ce dernier soit le titulaire des obligations internationales en la matière, il est à l'abri de toute sanction contraignante, qu'elle soit collective ou pénale. L'absence de sanction efficace à l'encontre de l'État et la garantie insuffisante des droits de la victime impose une réforme du contentieux international des droits de l'homme. Au-delà du renforcement des mécanismes des organes de traités, la création d'une juridiction universelle chargée de sanctionner la violation des droits de l'homme au sein du système des Nations unies doit être envisagée
The goal of effectively addressing human rights violations by imposing international sanctions has been hardly achieved. Under the UN Charter, even though non-judicial sanctions are applied as the common system, they are not effective enough in addressing the victim's needs. Committees established to monitor the application of human rights Conventions, while considering individual communications, can only make recommendations, as they are not even competent to handle serious human rights violations. In the absence of an effective mechanism to deal with serious human rights violations, the Security Council has extended the application of collective measures under Chapter VII of the Charter to human rights, resulting into operational difficulties limiting its scope. Therefore, the Security Council has diversified its sanctions in order to address these challenges. However, the collective measures, either targeted sanctions or judicial measures e.g. the establishment of criminal courts or referral to the International Criminal Court, only focus on the individual rather than the State. Although the State is the duty bearer under the international human rights obligations, it is not subject to binding sanctions, whether collective or criminal. The lack of effective sanctions against State and the insufficient guarantee for protection of the victim's rights call for a reform of the international human rights litigation. In addition to strengthening the treaty body system, it is worth considering the establishment of a World Court within the UN system to impose enforceable sanctions on States in case of human rights violation

This thesis focuses on the establishment and operation of the latest regional Human Rights Court: The African Court on Human and Peoples' Rights. For the development of human rights protection mechanisms within regional organizations the governments of the member states are of special relevance. They pull the strings to either foster and develop a system or to disrupt it. Therefore, following a brief historical introduction, the first chapter gives an overview of the regional African organization, the former Organization of African Unity (OAU) and today's African Union (AU) which was instrumental in the establishment of the African Human Rights System and has now enhanced it by adding a judicial authority. However, it will become clear that is has taken a long time for the OAU to put human rights violations within the borders of its own member states on its agenda: Not until there was increasing international pressure due to never-ending excrescences of violence in the dictatorial regimes in Africa did the OAU carefully attend to this matter in the late 1970s. Its efforts culminated in the adoption of the African Charter on Human and Peoples' Rights (the eponymous Banjul Charter) which entered into force in 1981. The body for the protection created by the Charter was the African Commission on Human and Peoples' Rights which took up its function in 1987. Since the newly established African Court is not supposed to replace the Commission but rather to strengthen it, the Court operates in concert with the Commission. Therefore the old protection system will still be applicable which deems a portrayal of the system in the following chapter necessary. Here, it will be outlined, that the competences of the Commission remain very limited and that its judicial impact on the State parties involved in its protection procedures has been nearly nil up to this very day. Against this background the next chapter focuses on the Protocol to the Banjul-Charter establishing the African Court on Human and Peoples' Rights. First, the historical-political background and the protocol's juridical formulation process are examined. Here it will be shown that the end of global bipolarity has had a remarkable impact on the political protagonists in Africa with the effect that the increasing demands for a human rights Court within the OAU no longer remained completely unheard. It will also be outlined that the path towards the adoption of the protocol has been long and difficult. After a short survey of the organisational structure of the Court it will become clear that the protocol follows to a large extend its Inter-American counterpart concerning the institutional embodiment. However, a remarkable and, in international comparison, a unique achievement has also been achieved by the institutional regulations by making gender equality has one of the key issues to encompass when it comes to the nomination and election of judges. The following chapters outline the jurisdiction of the Court and the judicial process before the Court. In this connection the admissibility criteria will be highlighted in which two remarkable regulations stand out: First, it will become clear that in contrast to other regional human rights courts individuals and NGOs alike are entitled to file a complaint with the African Court (even though initially with the help of the Commission, since the protocol makes the complaint authority of individuals and NGOs dependent of a special declaration of acceptance of the State Parties concerned). Moreover, also unique compared to international two-tier human rights procedures, the protocol does not include a provision according to which a complainant would be obliged to go through a prior Commission procedure before filing a complaint with the Court. Individual complainants rather have direct access to the Court once a declaration of acceptance has been submitted by a State Party to the protocol. Following short remarks on the competence of the Court to issue provisional measures which, among other things, reveal that these measures have, in contrast to those of the ECtHR, binding effect the procedural termination of a complaint comes into focus. Here, the possible contents of the rulings and the control mechanisms for their implementation are being contemplated in a detailed fashion. This last aspect most probably will have great influence on the fate of the Court since the Commission for its part had to a large extent no success due to the fact that it had no conventional implementation procedures to rely on. Therefore, in the vast majority of cases the findings of the Commission trailed off without any State Party concerned paying any attention to it. The drafters of the protocol establishing the Court obviously have learned this lesson since the protocol provides for a quite remarkable implementation mechanism that may be able to impose political and legal pressure alike on State Parties if the Court deems that they have not properly complied with a Court's ruling. Even sanctions within the African Union against a recusant State come into question from a legal point of view - a quantum leap regarding the legal situation under the Banjul Charter. The last chapter rehearses the main findings of the thesis and concludes with a positive outlook on the future development of the African human rights system.

This is a study of the European Court of Human Rights' doctrinal response to complaints for protection under the European Convention on Human Rights submitted by or on behalf of companies. Companies indisputably enjoy ECHR protection in principle yet the protection of persons closely tied with for-profit and corporate business enterprise is sometimes doctrinally problematic. The thesis has two main objectives. First, it analyses the Court's reasoning in three groups of cases in which corporate human rights litigation has presented particular problems of treaty interpretation: 1) The extent to which shareholders are 'victims' (Article 34) when they complain of measures that formally have befallen their companies. 2) Whether companies are protected by provisions that were conceived in relation to the needs of natural persons outside the business context (select areas under Articles 8(1), 10(1) and 41 are considered). 3) Which standard of review to be applied by the Court when companies allege that public regulation of their activity violates Articles 8 and 10. The case law is streamlined in a minimalist fashion, which obscures the Court's rationale. The thesis construes the structural framework within which the Court operates, and seeks to explain how the relevant case law is largely coherent when considered on these grounds. Second, the Court's response is used for highlighting crucial aspects of the Convention system that are aptly revealed but which extend beyond the company context. Three aspects, which are suitable for further analyses, are essentially brought to the fore: 1) The Convention as a European liberal project, a characteristic that makes it stand out from the bulk of international human rights law. 2) The complex nature of the Convention's object and purpose, and, consequently, the Court's teleology. 3) The collective and economic aspects of the Convention's civil and political rights.

Defence date: 12 April 2007
Examining Board Members: Prof. Neil Walker (European University Institute); Prof. Wojciech Sadurski (European University Institute); Prof. Rick A. Lawson (University of Leiden); Prof. Alec Stone Sweet (Yale University)
PDF of thesis uploaded from the Library digital archive of EUI PhD theses

It is a well-known fact that international law has not been at its strongest when it comes to its implementation and enforcement, since there is not coercive power in the international system comparable to that which enforces domestic law. However, the judgments of international courts and tribunals must attain full respect by the Member States, thereby sending a credible message that there are consequences for non-compliance. This thesis focuses on how to persuade and pressure a delinquent State into compliance with the judgments in the European, Inter-American and African Courts of Human Rights and identifies the elements constituting an effective mechanism for the enforcement of judgments based on a comprehensive and comparative study of the related legal provisions and practice. It demonstrates that these three human rights courts adopt the same method: supervision without prospect of sanctions, mainly because different dynamics operate in the area of international human rights law. A comparison between the international human rights courts and some other international judicial organs, including the International Court of Justice, the International Tribunal for the Law of Sea, the WTO dispute settlement mechanism and the European Court of Justice with regard to the enforcement of judgments shows that the latter ones rely on coercive measures to ensure compliance and the achievements of the human rights court is inspiring for them on how to enhance their effectiveness. The last part of this study addresses the prospect of establishing an international human rights system in the Asian region based the analysis of the current obstacle from its creation, which now seems more likely on the sub-regional level and provides proposals on the future mechanism for the enforcement of judgments.

The evolving relationship between international human rights law and criminal law is marked by a passage from a role of moderation to one of legitimization. While international human rights law was previously critical of criminal law as an instrument of state repression, the last few decades witnessed a shift towards a victim-centred conception of criminal law as a means to protect and enforce certain human rights. This contrasts with a liberal conception of human rights as a check on the power of the state through the use of its criminal law authority. This development manifests itself through what may be dubbed the "criminalization” of Inter-American human rights law. This contribution explores this phenomenon of “criminalization” and its various illustrations, particularly through the Inter-American Court of Human Rights’ discourse with respect to amnesty laws and prescription.
El desarrollo de las relaciones entre el Derecho Internacional de los Derechos Humanos y el Derecho Penal está signado por una función de moderación hacia una de legitimación/ justificación de la aplicación del Derecho Penal. Mientras los Derechos Humanos inicialmente fueron críticos del Derecho Penal, como instrumento de represión estatal; las últimas décadas atestiguan un giro hacia una conceptualización del Derecho Penal centrado en la víctima, como medio para proteger y resguardar determinados derechos humanos. Este giro desafía la perspectiva liberal que concibe los derechos humanos como un mecanismo de control ante el poder estatal y que se ejerce mediante el Derecho Penal. Este desarrollo se manifiesta a través de lo que podría ser denominado la “penalización" de la jurisprudencia de la Corte Interamericana de Derechos Humanos. Este trabajo contribuye a la exploración del fenómeno de la “penalización” y sus diversas variantes. Particularmente, en el discurso de la Corte Interamericana de los Derechos Humanos, con especial énfasis en su postura ante las leyes de amnistía y la institución de la prescripción de la acción penal.

The thesis examines one of the latest novelties in the work of the ECtHR - Pilot Judgement Procedure. The thesis covers all the aspects of the PJP such as an introduction of the procedure and its reasons, its main objectives, theoretical basis, practical application, and effectiveness.

This thesis presents a critical analysis of the property rights in terms of Article 1 of Protocol No. 1 (P1-1) of the European Convention on Human Rights (ECHR) to the property conflict in Cyprus. The theme that runs through the paper is whether property disputes in Cyprus have had an impact on the established case law of the European Court of Human Rights (ECtHR). Also addressed is the extent to which Cypriot property claims caused the Court to depart from its traditional approach concerning property rights under the ECHR and whether these cases before the Court have introduced a new aspect to the understanding and interpretation of the protection of property rights in the Convention system, specifically the application of the P1-1 to the Convention. The Court's approach, in its various precedents, in examining property rights within the remit of P1-1 will be compared with the property claims from Cyprus in order to determine the unique and significant character of the Cypriot property cases and to analyse their relationship with the right to property under P1-1 to the ECHR.

Doctor Legum - LLD
The African Court on Human and Peoples’ Right (the Court) is the most recent of the three regional Human Rights Bodies. Envisioned by the African Charter on Human and Peoples’ Right, its structures was not planned until the Organisation of African Unity (OAU) promulgated a protocol for its creation in 1998. The Court complements the protective mandate of the African Commission on Human and Peoples’ Rights (‘The Commission’) and the Court has the competence to take final and binding decisions on human rights violations. Unlike its European and inter-American versions where their courts are integral parts of the cardinal instrument of the system ab initio, the establishment of the African Court was merely an afterthought. At the initial, protection of rights rested solely with the Commission upon African justice system which emphasises reconciliation as it is non-confrontational method of settlements of. The Commission is a quasi-judicial body modelled after the United Nations Human Right Committee without binding powers and with only limited functions covering examination of State reports, communications alleging violations and interpreting the Charter at the request of a State, the OAU or any organisation recognised by the OAU. The thesis answers the question whether the adoption of the African Court means that the African model of enforcing human rights has failed or whether having the Court constitute a concession to the triumph of the western model of law enforcement. The imperative of the 30th Ordinary Session of the OAU in 1994 where the creation of an African Court of Human and Peoples’ Rights was viewed as the best way of protecting human rights across the region would be treated. The relevance of such an examination is highlighted by the fact that the African Charter did not make any provision for the establishment of a Court to enforce the rights guaranteed thereunder. If we are to assume that justice by reconciliation has failed and should be replaced by or complimented with justice by adjudication as the primary means of conflict resolution, what guarantees are there that the latter form of justice will not also fail? This thesis therefore will critically evaluate the African Court on Human and Peoples’ Rights and assessed its potential impact on the African human rights system. It will also probe the power of the Court and see whether a clear and mutually reinforcing division of labour between it and the African Commission can be developed to promote and protect human rights on the continent. This research brings to focus an area that requires attention if the African human rights regime is to be effective. It put to test the criticism against the African Charter and the Protocol to the African Charter on the Establishment of an African Court on Human and Peoples’ Rights and also identified the present existing flaws in the African regional system. Furthermore, it ascertained whether or not, given the availability of other options, a regional Court is, in fact, the ideal mechanism for the protection of human rights in Africa.

The acknowledgment that the European Court of Human Rights (ECtHR) and the Committee of Ministers are flooded with repetitive cases has brought increasing attention to the issue of full and timely execution of the Court’s judgments. Efforts have been made to render the system of supervision of the execution more transparent, independent, and participatory. The involvement of actors other than the intergovernmental Committee of Ministers appears particularly significant. This dissertation focuses on specific entities that, while somewhat neglected in the literature, would seem to be ideally situated to promote the execution of ECtHR judgments – i.e., National Human Rights Institutions (NHRIs), which are commonly portrayed as “bridges†between the State and civil society, and between the national and international levels. The dissertation provides a comprehensive examination of the current level of engagement by NHRIs with the Committee of Ministers for furthering the execution of ECtHR judgments. Participating NHRIs have generally provided detailed information on the state of legislation, administrative practice, and case-law in their respective countries, and they have proposed measures to prevent future human rights violations. Nonetheless, the findings show that a relatively low number of NHRIs have submitted communications to the Committee of Ministers to date and that the impact of these communications on the actions undertaken by States and the decisions adopted by the Committee of Ministers is often difficult to assess. The activities carried out by NHRIs at the domestic level to encourage the execution of ECtHR judgments are also systematically identified with a view to illustrating the multifarious ways in which NHRIs can contribute to the execution process. On the basis of these findings, the dissertation highlights and accounts for the unfulfilled potential of NHRIs in promoting the execution of ECtHR judgments; it further puts forward proposals to strengthen the involvement of NHRIs in the process.

The acknowledgment that the European Court of Human Rights (ECtHR) and the Committee of Ministers are flooded with repetitive cases has brought increasing attention to the issue of full and timely execution of the Court’s judgments. Efforts have been made to render the system of supervision of the execution more transparent, independent, and participatory. The involvement of actors other than the intergovernmental Committee of Ministers appears particularly significant. This dissertation focuses on specific entities that, while somewhat neglected in the literature, would seem to be ideally situated to promote the execution of ECtHR judgments – i.e., National Human Rights Institutions (NHRIs), which are commonly portrayed as “bridges” between the State and civil society, and between the national and international levels. The dissertation provides a comprehensive examination of the current level of engagement by NHRIs with the Committee of Ministers for furthering the execution of ECtHR judgments. Participating NHRIs have generally provided detailed information on the state of legislation, administrative practice, and case-law in their respective countries, and they have proposed measures to prevent future human rights violations. Nonetheless, the findings show that a relatively low number of NHRIs have submitted communications to the Committee of Ministers to date and that the impact of these communications on the actions undertaken by States and the decisions adopted by the Committee of Ministers is often difficult to assess. The activities carried out by NHRIs at the domestic level to encourage the execution of ECtHR judgments are also systematically identified with a view to illustrating the multifarious ways in which NHRIs can contribute to the execution process. On the basis of these findings, the dissertation highlights and accounts for the unfulfilled potential of NHRIs in promoting the execution of ECtHR judgments; it further puts forward proposals to strengthen the involvement of NHRIs in the process.

The contemporaneity has been famously defined as “the age of rights” (Bobbio 1995), and the logic of rights has become “the principal language that we use in public settings to discuss weighty questions of both right and wrong” (Glendon 1991, 63). If human rights give voice to minorities and marginalized groups in society, and they can do so with powerful legal and symbolical resources, the tendency to frame almost every social conflict in terms of a clash of rights also favours absolute formulations and the activation of judiciary.Under such premises, this dissertation provides a qualitative socio-legal analysis of the jurisprudence on sexual orientation of the European Court of Human Rights. More in detail, I focus on the arguments produced by the judges, and I analyze the legal controversies, the normative framing, the social perspectives, and the moral standpoints that orient the interpretation of the European Convention on Human Rights. The aim is twofold; on one hand, I investigate how the aforementioned arguments influence the evaluation, the acceptance, or the refusal of claims grounded on sexual orientation. On the other, the purpose is to critically engage in the asserted neutral character of judicial reasoning, in order to reveal the clash of perspectives underpinned to the interpretation of human rights.

The reciprocal influence between the Inter-American Court andthe European Court of Human Rights has been analysed by several studies that have focused on the impact of the European case- law in its Inter- American counterpart. In this context, this paper aims to pay attention to the reverse phenomenon. Therefore, it studies the decisions in which the European Court of Human Rights has explicitly referred to the Inter-American Court’s case law. By doing so, it attempts to elucidate the subject areas in which the European Court is most influenced by its Inter-American counterpart and the extent of this influence.
La  influencia  recíproca  de  las  jurisprudencias  de  la  Corte Interamericana y el Tribunal Europeo de Derechos Humanos ha sido objeto de muchos estudios, que han tendido a poner especial atención en el impacto de la jurisprudencia europea en su homóloga americana. En este contexto, el trabajo que se presenta propone analizar el fenómeno inverso, estudiando las decisiones del Tribunal Europeo de Derechos Humanos que han citado de forma expresa a la Corte Interamericana, con miras a determinar las materias sobre las que la influencia interamericana en la jurisprudencia europea es más evidente, así como el alcance de esa eventual influencia.

The thesis seeks to answer the question whether the European Union (EU) constitutional treaty offers improved protection for human rights in the EU jurisdiction. Within this context, it first seeks to find out what the incorporation of the Charter of Fundamental Rights in the constitutional treaty promises for the human rights&rsquo
field. Furthermore, it examines how the possible accession of the EU to the European Convention on Human Rights will affect this field. Then, it focuses on what the constitutional treaty offers for third countries concerning human rights. Finally, in the light of the recent developments on the treaty, the discussion enlightens the role of the constitutional treaty on protecting and developing human rights in the EU.

Cette thèse s'inscrit dans un mouvement de reconnaissance de l'importance accrue de l'institution judiciaire, et de questionnement actuel sur la légitimité démocratique du juge. Dans ce cadre, elle enquête sur le rôle, dans la fonction et la pratique judiciaire, de l'opinion publique, largement considérée comme un élément de légitimité démocratique. Pour obtenir un éclairage plus complet sur cette question, une approche comparative est adoptée et appliquée à l'œuvre protectrice d'une cour nationale constitutionnelle et d'une cour internationale dans le domaine des droits et des libertés : la Cour suprême des États-Unis et la Cour européenne des droits de l'Homme. Le raisonnement suivi est le suivant. Au niveau théorique, il s'agit de clarifier le concept protéiforme d'«opinion publique» et d'établir les différentes sources de la légitimité judiciaire, afin de déterminer si l'opinion publique peut en faire partie. Au niveau procédural, l'étude se penche sur la pratique judiciaire des deux cours, les différentes règles et pratiques qui permettent d'impliquer directement ou indirectement le public dans le processus judiciaire, que ce soit les parties, les tierces-parties, ou les médias. On se penche enfin sur la substance des décisions de justice, qui révèlent la manière dont les juges conçoivent le rôle de l'opinion publique dans la démocratie et dans l'évolution judiciaire des droits et libertés. L'étude de la substance des décisions se concentre d'une part sur la relation entre opinion publique et démocratie dans la protection de la liberté d'expression, et d'autre part sur le rôle de l'opinion publique dans l'évolution des droits des personnes homosexuelles
This dissertation is part of a larger movement, both national and international, acknowledging the growing importance and inquiring about the democratic legitimacy of judicial institutions. In looking at the judicial office and its practice, it investigates the role of public opinion, largely considered an element of democratic legitimacy. To obtain a more complete perspective on judicial institutions and public opinion, a comparative approach is adopted and the United States Supreme Court, and the European Court of Human Rights are examined. This study adopts the following reasoning. At a theoretical level, it attempts to clarify The multifaceted concept of “public opinion” and to establish the different sources of judicial legitimacy, in order to determine whether public opinion can be considered such a source. At a process level, the study inquiries about the judicial practice of both courts, and the different rules and practices that allow for a direct or indirect involvement of the public, whether parties, third-parties, or the media. It then studies the substance of judicial decisions, which reveal judges' conception of the role of public opinion in democracy and in the judicial evolution of rights and liberties. The content-study of judicial decisions focuses on first on the relationship between public opinion and democracy in the protection of freedom of expression and second on the rote of public opinion in the evolution of the rights of homosexual persons

This thesis is about establishing a balance between universal human rights and particular cultures or local conditions. It examines the universality debate with reference to the "margin of appreciation" in the jurisprudence of the European Court of Human Rights, in particular from the end of the Cold Wax when new Contracting Parties from central and eastern Europe came under the Court's jurisdiction.The thesis considers that analysis of these issues must not be parochial. In Part One the universality debate in international human rights law is therefore examined in detail. It is argued that universal human rights do not require absolute uniformity in their protection - even universal human rights are necessarily and defensibly qualified. In order to link the margin of appreciation to this universality debate its evolution, operation and the factors which underpin it are also clarified in Part Two. It is demonstrated that the margin of appreciation has evolved from a concession to states into a methodology for demanding ever greater justifications for their limitations upon human rights. In doing so the margin permitted accords with the defensible level of local qualification to human rights already identified.Part Three tests these conclusions against original analysis of recent case law, showing that the Court has been responsive to the differing needs of the new Contracting Parties. The Court had evolved a coherent and defensible approach to cases that have raised complex localised issues, and has maintained this even since its jurisdiction expanded. Whilst allowing modulation of European human rights protection according to local characteristics, use of the margin of appreciation does not amount to cultural relativism even in the expanded Council of Europe.

CONSELHO NACIONAL DE DESENVOLVIMENTO CIENTÍFICO E TECNOLÓGICO
Serão as instituições internacionais instrumentos a serviço dos Estados que as criaram ou, na verdade, atores dotados de fontes de poder e autoridade próprias? Durante muito tempo os debates travados entre as perspectivas teóricas dominantes em Relações Internacionais deixaram de lado a questão da capacidade de agência das instituições, simplesmente assumindo a impossibilidade de autonomia destes arranjos. Orientadas por premissas funcionalistas e utilitaristas, as instituições eram vistas como meras arenas para a resolução de controvérsias ou instrumentos de ação coletiva. A realidade, contudo, nem sempre confirma o que prediz a teoria. Na prática, um número representativo dentre estes arranjos parece atuar com considerável autonomia, afastando-se do modelo instrumental que normalmente lhe é destinado. Regimes e, em especial, cortes internacionais de direitos humanos são exemplos interessantes para se discutir a autonomia institucional. Fundada no novo institucionalismo e tomando como objeto da discussão a Corte Interamericana de Direitos Humanos, esta dissertação se propõe a analisar como certas instituições, uma vez criadas, conseguem gradativamente se desvincular dos interesses e, principalmente, do controle estatal, adquirindo considerável autonomia no desempenho de suas competências.
Are international organizations subservient to member state interests or are they endowed with sources of power and authority? For a long time, debates between mainstream theories in International Relations did not consider their capacity as actors and neglected the autonomy of such arrangements. Based on functionalist and utilitarist premises, institutions were perceived as mere arenas for dispute resolution or instruments of collective action among states. Reality, however, does not always coincide with theoretical assumptions. In fact, an increasing number of international organizations seem to shape their own mandate, moving away from the instrumental pattern which is normally assigned to them. International human rights regimes and, more precisely, international human rights courts provide an interesting entry point into the discussion on institutional autonomy. Based on a new institutionalist approach and choosing as object of investigation the Inter-American Court of Human Rights, this dissertation tries to expose how certain institutions, once created, gradually emancipate themselves from state interests - and mainly from state control - and attain a considerable degree of autonomy in exercising their mandate.

This review is an attempt to analyze the published materials on precedent law of the European Court on Human Rights. The article analyzes the case law activity by the European Court on Human Rights, its influences on national legal systems. The precedent law of the European Court on Human Rights is one of the complicated issues, because there is not general theoretical view on it. The precedent law of the Court is developing and gains new features. The Court uses its previous consequences in previous decisions on a subsequent case as a precedent norm. The Court creates a case law system that influences legal reforms in national legal order.

The main focus of this thesis is on the work of the European Court on Human Rights (the Court, ECtHR), namely on judgments by which the Court reads into the European Convention on Human Rights (the Convention, ECHR) rights with significant socio-economic elements already guaranteed under the European Social Charter (the Charter, ECS) and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (ECPT). Reading in such rights into the Convention raises numerous problems, from practical ones concerning the implementation of judgments and the increase of the Court’s workload, to the problem of the Court’s inconsistency and finally to this being a threat to the Court’s legitimacy. It will be argued that, despite the Court’s wide powers when interpreting the Convention rights, there are rights already guaranteed under different Council of Europe (CoE) instruments and the Court should not extend the scope of the Convention into these areas, nor does it have the legitimacy to do so.The thesis first sets out theoretical framework, research questions and methodology. The second chapter presents the current position of civil and political and economic and social rights within the regional and global human rights instruments. This will be followed by the theoretical approaches to differences among these two categories of rights, if any. The third chapter will be an introductory chapter to the European human rights system. In chapters IV, V, VI, and VII the case-law of the Court concerning judgments with significant socio-economic elements will be discussed. These chapters focus on four areas where this has happened: detention conditions and healthcare in prisons, the environment, healthcare in general, and housing. These rights are not guaranteed under the Convention, but are under the ECPT and the ESC. After presenting the Court’s jurisprudence, the problems surrounding such Court’s practice will be analysed. Furthermore, it will be questioned whether the Convention is suitable for protection of these rights, since there are other European instruments under which these rights are guaranteed. For that reason, the practice of the CPT and the ECSR will be analysed to show that the protection of the above stated rights is better left for these mechanisms to deal with. Another problem is that the Court when delivering judgments with significant socio-economic elements is often not setting clear standards and is being inconsistent, creating even more uncertainty among states regarding their obligations under the Convention. The inconsistency of the Courts reasoning in the case-law discussed in chapters IV-VII is discussed in chapter VIII. Chapter IX discusses the Court’s legitimacy in the context of the above mentioned issues. The final chapter concludes by summarising the findings in relation to the research questions.

This thesis is a critique of the European Court of Human Rights’ case law on the right to a fair trial in criminal cases. It is the result of a focussed and extensive survey of Article 6 case law, and, unlike other work on Article6, does not analyse each component right of Article 6 one-by-one. Instead, the thesis considers ‘cross-cutting’ themes common to all, or many, of the Article 6 component rights: how the Court interprets Article 6, how the Court sees its role in Article 6 cases, how the Court approaches Article 6’s internal structure, the Court’s implied rights jurisprudence, and how the Court assesses alleged Article 6 violations. In considering how the Court assesses alleged violations of Article 6, the thesis charts the Court’s attempts to solve ‘the puzzle of Article 6’: how should violations of Article 6 be assessed in the absence of an express metaprinciple? In this regard the thesis examines notions such as the proceedings as a whole test, counterbalancing and defect-curing, the ‘never fair’ jurisprudence, and the extent to which the public interest may justify restrictions on Article 6. The thesis uses a rule of law framework to test the Article 6 case law for its ability to provide guidance to citizens, lawyers and officials. It argues that the case law is marked by considerable uncertainty, inconsistency, and incoherence, with the result that the ability of that case law to provide guidance is significantly undermined. Indeed, the thesis establishes that there is inconsistency and uncertainty within the various tools and approaches used by the Court, and that there is significant incoherence between those approaches. To the extent the thesis makes a normative argument, it constitutes a robust and targeted call for the Court to adopt in this area of law a renewed, rejuvenated approach that is more consistent, more coherent, and better explained.

Can the procedure at the International Criminal Court be regarded as fair? And why is the level of fairness important for the ICC’s legitimacy? This thesis argues that the right to a fair trial is an indispensable prerequisite for international tribunals and that the ICC’s level of procedural fairness can be improved despite the Prosecutor’s obligation to search for inculpatory and exculpatory evidence equally. Questions of procedural fairness typically involve the principle of equality of arms and the right to adversarial proceedings. My argument is different. In a comprehensive analysis, I create a yardstick drawn from regional human rights decisions and the Human Rights Committee and measure the ICC’s procedure against this yardstick. The upshot is that the ICC’s procedure does not violate any procedural human rights law. Rather than being a cause for complacency, however, this apparently favourable result reveals an important limitation of existing legal standards of fairness: they do not take sufficient account of the importance of the investigative process as an integral part of a fair trial procedure. My argument draws on the work of Niklas Luhmann and Ronald Dworkin to argue that a weak level of fairness may lead to a loss of the ICC’s legitimacy, and that an adequate account of fairness must find a middle ground between an exclusive concern with procedural rights on the one hand or accuracy of outcomes on the other. An alternative is needed to a Prosecutor, who is required, on the one hand, to carry out investigations impartially and, on the other hand, to become a trial party at some point of the procedure. Having considered the option of a Co-Investigative Judge, this thesis concludes that fair trial procedures at the ICC can be improved through the setting-up of an Investigation Oversight Office and explains why such an office would achieve an enhancement in terms of fairness, procedural impartiality and expeditious trials.

This article addresses diverse perspectives concerning relationship between reviewing (laws) for compliance and the process of putting international law of human rights on a constitutional footing. Therefore, a parallel is established between reviewing (laws) for compliance and constitutional review (laws) in order to outline features and application impact of this research. The design of a multi-level protection system for fundamental rights in Latin America is also discussed in this article.
El presente artículo aborda aspectos relativos a la relación entre el control de convencionalidad y el proceso de constitucionalización del derecho internacional de los derechos humanos. Así, se establece un paralelo entre el control de convencionalidad y el control de constitucionalidad, a fin de determinar las características y el impacto de la aplicación del examen mencionado. El documento da cuenta de la configuración de un sistema de protección multinivel de los derechos fundamentales en Latinoamérica.

"In response to President Kabah's request of June 2000, the United Nations Security Council called on the Secretary-General to negotiate an agreement with the government of Sierra Leone for the creation of a special court for Sierra Leone (hereafter SCSL), to investigate the atrocities committed within the country, by Resolution 1315 of 14 August 2000. Under the agreement concluded in February 2001, the SCSL has jurisdiction over crimes against humanity, war crimes and other serious violations of international humanitarian law committed since November 1996. The author assesses in detail the efficacy of the SCSL in dispensing justice up to date. The author concludes that, although the SCSL has accomplished much, it has shortcomings and faces changes that hamper the attainment of its objectives. ... This study is divided into five chapters. Chapter one provides the context in which the study is set, the focus and objectives of the study, its significance and other preliminary issues, including a statement of the problem and the literature review. Analysis of the conflict in Sierra Leone are necessary to grasp the graveness and the nature of the human rights violations and to understand the nature and extent of justice already meted out. Chapter two focuses particularly on the historical background of the conflict and the reasons that necessitate the establishment of the SCSL. The SCSL was established specifically to respond to human rights abuses committed during the civil war in Sierra Leone. Chapter three examines the major achievements of the Court in dispensing justice, and chapter four identifies the shortcomings and the challenges that confront the Court in its aim to fulfil its mandate." -- Chapter one.
Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2006.
Prepared under the supervision of Professor Lovell Fernandez, Faculty of Law, University of the Western Cape
http://www.chr.up.ac.za/academic_pro/llm1/dissertations.html
Centre for Human Rights
LLM

The European Convention on Human Rights (ECHR) – supervised by the European Court of Human rights (ECtHR) – coexists with other normative (human rights) instruments that have been created at the national, regional, and international level, both by State and non-State actors. The ECHR represents one legal piece of this normative ‘jungle’, characterized by legal ‘fragmentation’. Whereas a lot is said about the negative aspects of this diverse world, this doctoral thesis aims to focus on its positive sides. To support its interpretation and application of the ECHR, the Strasbourg Court makes reference to a diverse range of instruments other than the ECHR, which we call external instruments. The Grand Chamber-case of Demir and Baykara v. Turkey of 12 November 2008 provides a rare overview of the characteristics of this ‘referencing practice’. In this judgment, the Court included a separate heading to specifically explain its interpretative use of international law, discussing the legal basis as well as the type of instruments that it considers relevant. Two major conclusions follow from the Court’s explanations: firstly, it puts external referencing in the light of some rules on interpretation provided in the Vienna Convention on the Law of Treaties (VCLT) (particularly in Article 31 paragraph 3 (c) VCLT); secondly, it stresses that soft and non-ratified external instruments might equally offer support for (evolutively) interpreting the ECHR. These statements are controversial; the Court has been criticized for misinterpreting the rules of the VCLT, for not well justifying its references as well as for exceeding its powers by incoherently relying on (non-binding) external materials for interpretative purposes.The case of Demir and Baykara v. Turkey left many questions open in respect of the importation of external instruments. There is some confusion about the functions and the weight of (non-binding) external instruments in legal reasoning. In addition, the justificatory arguments developed in this case lack precision and persuasiveness. Addressing these gaps, this study firstly offers an elaborate ‘mapping’ of the usage of external instruments by the ECtHR. For that purpose, all references in each Grand Chamber-case since Demir and Baykara v. Turkey of 12 November 2008 (until the end of 2015) have been analyzed and categorized. Secondly, this work develops arguments to better justify the Court’s practice of using external instruments. Both from a legality and a users’ perspective, this thesis demonstrates how external referencing may (under certain conditions) be a valid method to give meaning to the provisions in the ECHR. The ‘mapping’ of the referencing practice demonstrates that, to support the interpretation and application of the Convention in the ‘law’-section of the decision, external instruments have been invoked by the Grand Chamber in almost 70 percent of the examined cases. This interpretative technique covers a wide variety of instruments, diverging according to their origin as well as to their scope ratione materiae, ratione personae and ratione loci. The legal status of the instruments constitutes an additional root of diversity; the ECtHR imports legal instruments that have been ratified by the Member States, instruments that have not been ratified by some of the Member States and/or by the respondent State, soft instruments created by politically (non-)representative bodies, and finally, case law developed by other (quasi-)judicial bodies. The Grand Chamber references these instruments for different purposes: to dismiss their content, to establish interpretative rules, to support the interpretation of notions and requirements of the Convention, to enable the creation of harmony between the Convention and external legal requirements, or to consider a State’s freedom of manoeuvre when applying the ECHR. An example of a contested – but rather rare – usage of external instruments consists of comparing a mixture of binding and non-binding instruments in order to progressively evolve (and change) the Court’s case law. Overall, however, the Grand Chamber adopts a rather traditional approach to its interpretative ‘sources’, not according to non-binding instruments an independent decisive weight.In the Grand Chamber cases issued after Demir and Baykara v. Turkey, the Court did not undertake efforts to further justify and explain its referencing practice. In our view, two provisions might nonetheless operate as valuable vehicles to enhance the legality of some references. It concerns, more particularly, Article 31 paragraph 3 (c) VCLT, inciting the Court to take into account external applicable norms, and Article 53 ECHR, offering a ‘safeguard’ for human rights. Article 31 paragraph 3 (c) VCLT is regularly used by the Court in connection to the method of ‘harmonious interpretation’, accommodating the obligations of the ECHR with external obligations (that risk to conflict with the Convention). We agree that Article 31 paragraph 3 (c) VCLT – covering a principle of ‘systemic integration’ – offers a legal basis for a coordinative integration of external applicable requirements. Some caution is nonetheless required; the creation of convergence between the ECHR and external legal domains should not supersede the aim of effective and progressive human rights protection. Therefore, when a conflict arises between the ECHR and an external provision, this should be clearly acknowledged instead of being artificially ignored under a pretext of ‘harmonisation’ and ‘anti-fragmentation’. Subsequently, the conflict should be solved by means of ‘hierarchical integration’ (giving precedence to human rights law) rather than by ‘coordinative integration’.Although the Court references Article 31 paragraph 3 (c) VCLT to support harmonious interpretation between the ECHR and external instruments outside the human rights domain, this case law study demonstrates that it does generally not cite this provision in respect of references to human rights catalogues other than the ECHR. For that reason, a criticism claiming that the Court misuses Article 31 paragraph 3 (c) VCLT to expand the ECHR on the basis of external higher human rights provisions, largely misses ground. This does not mean, however, that Article 31 paragraph 3 (c) VCLT has no relevance in respect of the importation of other human rights catalogues. Although this does not accord with the Court’s general practice, we are of the opinion that Article 31 paragraph 3 (c) VCLT mandates the Court to integrate (higher) protection standards applicable in all Member States of the Council of Europe. In other words, the ideal of ‘systemic integration’ is not only relevant in relation to the landscape of (general) international law, but should also permeate the domain of human rights law. As a harmonizing principle, it is supposed to encourage the Court to take account of ratified external human rights catalogues, including their authoritative interpretation by external monitoring bodies. Article 53 ECHR supports this argument too. This provision offers a human rights safeguard ensuring peaceful coexistence between the ECHR and higher protection standards. The message of Article 53 ECHR towards the Strasbourg judges is twofold. In its procedural dimension, the Court should use it directly, to sanction a State that, on the national level, did not give precedence to the highest applicable human rights standard. In its substantive dimension, this provision has effects similar to those of Article 31 paragraph 3 (c) VCLT. When higher and binding human rights standards are applicable in all Member States, Article 53 ECHR obliges the Court to substantively integrate them into its interpretation of the ECHR. In addition, we argue that Article 53 ECHR offers a symmetric human rights safeguard, preventing a downward evolution of the ECHR on the basis of external human rights instruments offering lower standards. The proposed interpretation of Article 53 ECHR is innovative, yet controversial; so far, the Court has not used it in this manner. In line with Articles 31 paragraph 3 (c) VCLT and 53 ECHR, we argue that external instruments, under certain conditions, exercise a binding authority. Apart from that, referencing could be exercised in an optional manner, for instance in order to support argumentative purposes such as ‘evolutive’, ‘practical and effective’, and ‘autonomous’ reasoning and/or the establishment of a ‘margin of appreciation’. Essentially, these interpretation principles are covered by a holistic reading of the rules of the VCLT. A concept that catches well a combined reading of the rules of the VCLT, without losing sight of the specificity of human rights law, is the search for ‘opinio juris under the treaty’. Under this interpretative framework, an emerging or an ambiguous State consensus may suffice to develop a dynamic interpretation of the ECHR, provided that the incomplete consensus is confirmed by an opinio juris. To establish an emerging or ambiguous State consensus, ‘hard’ and ratified legal instruments (of national or international origin) are of particular relevance. In addition, a wide variety of (non-binding) external instruments might be useful to demonstrate the opinio juris. Besides legal provisions, some other, less formal, users’ arguments may validate some aspects of the referencing practice. The usage of external human rights catalogues – possibly containing higher protection standards, rights of other ‘generations’, or more specialized and specific provisions – contributes to the creation of human rights that are effective, universal and indivisible. This serves the rights holders who have an interest in equal treatment by a law that operates as a ‘ius gentium’, and in an adjudication process that does justice to all specificities of their identity and lived experiences. In addition, referencing could contribute to progressively evolve the protection of human rights. The referencing practice also enhances the coherence of the system, which is beneficial for ‘legal certainty’ vis-à-vis all users of human rights. Moreover, external referencing may contribute to a more nuanced and ‘shared’ decision-making, inspired by the positions and insights of various actors. Indeed, by means of comparative law, judges can build a dialectic network of mutual influences and communicative enrichment on a global scale. When we acknowledge that it is the Court’s task to translate pluralism in balanced outcomes and to canalize the different interests underlying a case, the importation of external views from across the globe may help the Court is assuming that responsibility. The Strasbourg judges find particularly valuable tools in external instruments. Not only could their usage enhance the procedural economy and the deformalization of the decision-making process, external citations may also make a reasoning more convincing and authoritative towards the audience. However, these benefits only play to the extent that external referencing is transparent, consistent and systematically relies on a solid legal framework.To optimize the justification of the referencing practice, this doctoral thesis recommends the Court to better embed its external citations in both formal and informal arguments. We have done several suggestions as to how such arguments might be developed in practice. Their use could boost the valid usage of external instruments, which, under certain conditions, offers good opportunities for a persuasive interpretation and application of the ECHRWe started our research with a sketch of the present normative environment; it is disordered and can be metaphorically compared to a jungle. The Strasbourg judges walk through this area and use lianas to make connections between all elements that compose this forest. Through their referencing practice, they communicate, learn, and argue. In an ecosystem, all organisms are dependent on one another; they cannot survive in isolation. Following the rules of nature, the organisms mutually profit from each other’s existence and finally, provide each other with oxygen. In order to be good rangers in this jungle, the Strasbourg judges should recognize and acknowledge the existence and the value of all the other organisms. In addition, to ensure a high degree of balance in the ecosystem, they should keep an eye both on the system’s rules (legality) and on the views and interests of those that benefit from the system (the users of human rights). By handling the lianas in such manner, the Court contributes to more coherence of the system (combating ‘fragmentation’) and caters for the users’ needs. This does not mean that one day, the jungle will be turned into a nicely organized cornfield. Some diversity in global times is inevitable and necessary. After all, it is the chaotic context that offers us tools to advance the law, to persuade the public, etc. The art is not to replace pluralism by unity, but to find a balance between divergence and convergence by creating a form of justice that is shared by all.
Doctorat en Sciences juridiques
info:eu-repo/semantics/nonPublished

The dissertation explores the principle of proportionality as an instrument deriving from the notion of "democratic society" and applied by the European Court of Human Rights (ECtHR) in order to establish whether national institutions succeeded in striking a fair balance between the conflicting Convention rights or between competing individual and public interests. In the first chapter, after presenting the origins of the principle, the development of a three-tiered proportionality test and its dissemination, the main parameters relevant for the analysis of this principle are identified and the main issues of academic discussion concerning the application of proportionality by the ECtHR are revealed. The second chapter explores the evolution of the application of the proportionality principle in the case law of ECtHR and reveals the main features of proportionality test as applied in the early practice of Convention institutions. The third chapter deals with the interaction of the principles of proportionality and subsidiarity, in particular examining the impact of margin of appreciation doctrine upon the proportionality assessment conducted by the ECtHR and analysing the contents and interplay of the factors determining the width of the margin of appreciation. The forth chapter explores both commonalities and peculiarities of the application of proportionality principle in the context of different Convention rights and exposes the main criteria relevant to the balancing... [to full text]
Disertacijoje nagrinėjama proporcingumo principo, kaip iš demokratinės visuomenės idėjos kylančio instrumento, Europos Žmogaus Teisių Teismo (EŽTT) pasitelkiamo siekiant nustatyti, ar nacionalinės institucijos išlaikė teisingą pusiausvyrą tarp konkuruojančių Žmogaus teisių ir pagrindinių laisvių apsaugos konvencijos (Konvencijos) ginamų teisių ar tarp Konvencijos teisių ir viešų interesų, sampratos ir taikymo praktikos problematika. Pirmoje disertacijos dalyje, aptarus proporcingumo principo kilmę, trinario proporcingumo tyrimo modelio susiformavimą ir sklaidą, apsibrėžiami svarbiausi proporcingumo tyrimui reikšmingi parametrai ir atskleidžiama EŽTT taikomo proporcingumo principo sampratos problematika mokslinėje literatūroje. Antroje dalyje nagrinėjama proporcingumo principo taikymo EŽTT praktikoje raida ir plėtra, identifikuojami pagrindiniai ankstyvojoje Komisijos ir Teismo praktikoje taikyto proporcingumo testo bruožai. Trečioje dalyje tiriama proporcingumo principo sąveika su subsidiarumo principu, atskleidžiamas vertinimo laisvės doktrinos poveikis EŽTT atliekamam proporcingumo vertinimui, tiriami vertinimo laisvės apimtį lemiantys kriterijai ir jų sąveika. Ketvirtoje dalyje analizuojama proporcingumo principo taikymo praktika skirtingų Konvencijos ginamų teisių kontekste, atskleidžiant tiek bendruosius principo taikymo bruožus, tiek ir Teismo taikomos priežiūros intensyvumo nulemtus proporcingumo testo ypatumus. Paskutinėje dalyje EŽTT taikomas balansavimu grindžiamas... [toliau žr. visą tekstą]

This thesis is the first major study of the UK Supreme Court’s use of jurisprudence from foreign domestic courts in human rights cases. It contributes to the debate on judicial comparitivism by asking when, how and why the Supreme Court uses foreign jurisprudence, as well as whether the Court should be making greater use of it. The research findings are drawn from quantitative and qualitative analysis of judgments handed down by the Supreme Court during its first four years (2009-2013). These are supported by evidence obtained through interviews with ten Justices of the Supreme Court, one Lord Justice of Appeal and the eight Supreme Court Judicial Assistants. In the absence of legislative guidance, the use of foreign jurisprudence is neither consistent nor systematic. Different Justices use foreign jurisprudence to different degrees and for different reasons. The main use of foreign jurisprudence is as a heuristic device: it provides the Justices with a different analytical lens through which to reflect on their own reasoning about a problem. Some Justices also use foreign jurisprudence when interpreting a common legislative scheme and to support their conclusions. As a result, the Justices use foreign jurisprudence differently according to the audience to whom their reasons are addressed. Thus foreign jurisprudence can assist the Supreme Court to enter into dialogue with the Strasbourg Court. However, this thesis does not support theories of transjudicial dialogue with other domestic courts; the evidence does not indicate that the Supreme Court considers itself to be part of global conversation. Further, the use of foreign jurisprudence is limited by practical barriers including, but not restricted to, time pressures, the availability of comparative resources and the greater use of plurality style judgments. These barriers are worth addressing if the Supreme Court is to fully utilise the heuristic value of foreign jurisprudence.

Globalisation and the transfer of powers from state constitutional systems to international organisations (IOs) have led to several deficiencies, especially with regard to checks and balances in global governance. The need to inculcate the rule of law and constitutionalism in global governance has therefore gained currency in the 21st century. This has been exemplified by calls for the reform of the United Nations (UN) and the extensive reforms in regional IOs, such as the European Union (EU), with emphasis on institutional balance and the tempering of political power with institutional controls.
Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2010.
A dissertation submitted to the Faculty of Law University of Pretoria, in partial fulfilment of the requirements for the degree Masters of Law (LLM in Human Rights and Democratisation in Africa). Prepared under the supervision of Dr. Jacqui Gallinetti Faculty of Law, University of the Western Cape, Cape Town, South Africa. 2010.
http://www.chr.up.ac.za/
Centre for Human Rights
LLM

Doctor Legum - LLD
The African Court on Human and Peoples’ Right (the Court) is the most recent of the three regional Human Rights Bodies. Envisioned by the African Charter on Human and Peoples’ Right, its structures was not planned until the Organisation of African Unity (OAU) promulgated a protocol for its creation in 1998. The Court complements the protective mandate of the African Commission on Human and Peoples’ Rights (‘The Commission’) and the Court has the competence to take final and binding decisions on human rights violations. Unlike its European and inter-American versions where their courts are integral parts of the cardinal instrument of the system ab initio, the establishment of the African Court was merely an afterthought. At the initial, protection of rights rested solely with the Commission upon African justice system which emphasises reconciliation as it is non-confrontational method of settlements of. The Commission is a quasi-judicial body modelled after the United Nations Human Right Committee without binding powers and with only limited functions covering examination of State reports, communications alleging violations and interpreting the Charter at the request of a State, the OAU or any organisation recognised by the OAU. The thesis answers the question whether the adoption of the African Court means that the African model of enforcing human rights has failed or whether having the Court constitute a concession to the triumph of the western model of law enforcement. The imperative of the 30th Ordinary Session of the OAU in 1994 where the creation of an African Court of Human and Peoples’ Rights was viewed as the best way of protecting human rights across the region would be treated. The relevance of such an examination is highlighted by the fact that the African Charter did not make any provision for the establishment of a Court to enforce the rights guaranteed thereunder. If we are to assume that justice by reconciliation has failed and should be replaced by or complimented with justice by adjudication as the primary means of conflict resolution, what guarantees are there that the latter form of justice will not also fail? This thesis therefore will critically evaluate the African Court on Human and Peoples’ Rights and assessed its potential impact on the African human rights system. It will also probe the power of the Court and see whether a clear and mutually reinforcing division of labour between it and the African Commission can be developed to promote and protect human rights on the continent. This research brings to focus an area that requires attention if the African human rights regime is to be effective. It put to test the criticism against the African Charter and the Protocol to the African Charter on the Establishment of an African Court on Human and Peoples’ Rights and also identified the present existing flaws in the African regional system. Furthermore, it ascertained whether or not, given the availability of other options, a regional Court is, in fact, the ideal mechanism for the protection of human rights in Africa.

Existing research on states and human rights focuses primarily on international treaty ratification, post-treaty rating systems, and ad hoc reports on adherence in individual countries. Additionally, the literature is characterized by disproportionate attention to certain rights to the neglect of others, thereby painting an incomplete and potentially inaccurate picture of a state’s practice and implementation of human rights. Consequently, the extant literature too frequently disregards key domestic and international factors as determinants of cross-national variation in the implementation and protection of human rights, and it instead generates paradoxical claims about human rights and state behavior. With Europe as its empirical focus, this study tests one assertion that state strength relative to societal actors impacts the frequency of cases heard at the European Court of Human Rights. Findings suggest that state strength indeed plays a role in the overall number of cases from member states in the European human rights system.

The African Union (AU) was set up in the year 2000 by the Constitutive Act of the African Union (Constitutive Act). Part of AU’s objectives for its creation includes; the promotion of peace, security and stability on the continent as well as the protection and promotion of human and peoples’ rights in accordance with the African Charter on Human and Peoples’ Rights (ACHPR).2 As part of fulfilling this objective, the African Court on Human and Peoples’ Rights (ACtHPR) was established3 with a wide human rights protective mandate which allows it to determine cases and disputes concerning the interpretation and application of the ACHPR and other international human rights instruments.4
Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2010.
http://www.chr.up.ac.za/
Centre for Human Rights
LLM

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). 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.
Мета: провести комплексний аналіз сучасного стану та практики розгляду справ щодо прав іноземних громадян та осіб без громадянства Європейським судом з прав людини (ЄСПЛ). Обговорення: ключові справи, порушені проти іноземців та осіб без громадянства в Європі Суд з прав людини охоплює міжнародно-правові акти, що визначають права іноземців на місцевому рівні рівень розглянуто, рішення ЄСПЛ щодо іноземців детально проаналізовано та критерії відповідності визначається для кожного з основних випадків.

"The purpose of this study is to interrogate the doctrine of margin of appreciation as applied in the European Court of Human Rights and establish amenable lessos to the African human rights system. As such, the author will be able to draw appropriate and informed recommendations on the prospects of the doctrine in African context. In other words, the study proceeds from the approach that 'diversity' alone is not enough to guarantee application of margin of appreciation. Rather, a variety of factors come into consideration while weighing whether margin of appreciation should be granted to states. Indeed, such benchmarks will inform the discourse of this study, while at the same time acknowledging that a comparative study between European and African systems cannot be possible. The premise for disqualifying a comparison assumes that margin of appreciation presupposes a democratic society. Thus, while the member states of the ECHR have attained high levels of human rights records, some of their counterparts in Africa are still marred by embarrassing human rights records." -- Preamble. "Chapter one introduces the study and the context in which it is set. It highlights the basis and structure of the study. Chapter two makes reference to the connotation, origin and development of the doctrine of margin of appreciation. It discusses also contours and varying degrees of the doctrine's application with particular regard to respect of the rule of law. In addition, difficulties linked to the doctrine are highlighted. Chapter three highlights policy grounds underlying margin of appreciation in the European Court of Human Rights. It starts from most decisive policy grounds and moves to weaker ones. Chapter four examines the legal basis for application of the doctrine of margin of appreciation under the African Charter. It further notes the attitude of African states through their submissions claiming margin. The Prince case as the first of its kind to invoke margin of appreciation is discussed. Chapter five attempts to identify the defensibility and indefensibility of the doctrine in [the] African human rights system. Chapter six consists of a summary of the presentation and the conclusions drawn from the entire study." -- Introduction.
Prepared under the supervision of Prof. Gilles Cistac at the Faculty of Law, Universidade Eduardo Mondlane, Maputo, Mocambique
Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2006.
http://www.chr.up.ac.za/academic_pro/llm1/dissertations.html
Centre for Human Rights
LLM

Extraterritoriality at the ECtHR appears to create a paradox. On the one hand, it is limited in space, time, purpose and remedies, through its state membership, individual application process, the terms of the ECHR, and restricted enforcement and influence on general international policy. On the other, it appears to be an indispensable refuge for individuals who are victim to the most flagrant denials of justice happening on a global scale. The ECtHR finds itself an avenue for redress in historical events of global significance such as the NATO bombing and UN administration of Kosovo, the US-UK occupation in Iraq, extraordinary rendition procedures and the interception of migrant boats at sea. This thesis embraces the paradox of extraterritoriality at the ECtHR. Putting forward a normative framework, the thesis clarifies the nature of extraterritoriality at the ECtHR and investigates the extent to which the ECtHR adopts a single normative frame. Existing theories fail to capture the nature of extraterritoriality in the ECtHR’s operation. This thesis offers a global constitutionalist approach to deduce a model for extraterritoriality. Using a normative global constitutionalist frame, in particular democratic accountability and the rule of law, the thesis examines the extent to which the ECtHR adopts such an approach. Translating the requirements of normative global constitutionalism into doctrinal indicators, it examines whether the ECtHR operates within a global constitutionalist frame in extraterritoriality decisions. Alongside this examination, the thesis queries the function and purpose of extraterritoriality and its relationship with other international legal concepts. It questions models that rely on state jurisdiction and attribution to determine their extraterritorial reach, exposing extraterritoriality as performing a separate function. It ultimately unravels the paradox of extraterritoriality through a global constitutionalist explanation.

This thesis sets out an argument against the present interpretation of the concept of autonomy under the European Court of Human Rights (the ECtHR) Article 8 jurisprudence and proposes a new reading of the concept that is rooted in an acknowledgment and appreciation of human interdependence. Following the prevailing political, legal and socio-cultural ideas and ideals about autonomy, the ECtHR has chosen to furnish its recent Article 8 case law according to the values characteristic of the notion of individual autonomy – independence, selfsufficiency, and the ability to conduct one’s life in a manner of one’s own choosing. Adopting this individualistic view on autonomy, the ECtHR sets normative standards for behaviour that the thesis challenges as being detrimental for the quality of interpersonal relationships. The work draws on sociological theory to argue that in modern individualised societies people are increasingly tied to each other – one has to be socially sensitive and to be able to relate to others and to obligate oneself, in order to manage and organise the complexities of everyday life. This also means that there are attendant obligations between individuals to be sensitive towards, and care for, each other. It is argued that an effective exercise of one’s autonomy becomes necessarily dependent on the existence of caring and trusting relationships. This in turn requires the ECtHR to adopt an appropriate conceptualisation of autonomy that embraces this knowledge and gives full effect to it. The concept of caring autonomy is proposed as a replacement for an individualistic concept of autonomy. It will be argued that this concept captures better the essentiality of human interdependence and the morality it calls for. The implications of this for the future direction of the ECtHR jurisprudence are also considered.

The involvement of children to fight in armed conflicts remains one of the main challenges towards the full realization of children's rights on the African continent. Despite a substantive legal framework affording protection and prohibiting the enlisting and recruitment of child soldiers, this practice remains prevalent in many parts of Africa particularly in the Great Lakes Region. As a result of their childhood and the traumatic events they are exposed to during armed conflicts, children inexorably suffer from many forms of harm including physical, mental and psychological harm. Addressing this harm as a matter of urgency is crucial for the proper and effective reintegration of these children into society. The Rome Statute departs from the silence of many international criminal law instruments which focus exclusively on the prosecution and sentencing of criminals overlooking the needs of the victims of international crimes by offering redress. It introduces a new and unique reparative system that aims at providing redress to the victims of international crimes within the courts' jurisdiction. This reparative regime which is still in its early life stages faces many challenges and uncertainties. In its first case dealing with principles relating to reparations, the International Criminal Court (ICC) showed these challenges and the difficulty of establishing permanent guidelines on future reparations to former child soldiers who are victims of the international crime(s) of the enlisting and recruitment to fight as combatants. Clear principles can help current and future victims by having an insightful and realistic expectation of the modalities and the scope of the reparation award they can get from the ICC.

"The judiciary in Zimbabwe used to be viewed as a progressive bench recognised for its activism, particularly its purposive approach in interpreting the Bill of Rights to ensure protection of human rights. It was one of the best Commonwealth judiciaries, which was inspired by international standards in interpreting human rights and at the same time contributed to the origination of normative standards through its decisions. Although Zimbabwe is a dualist system, the judiciary accepted and drew inspiration from international human rights treaties. The Supreme Court (SC) under Chief Justice (CJ) Gubbay (the Gubbay bench) made several progressive pronouncements that favoured the promotion and protection of human rights. In tandem with its tradition of judicial independence, the judiciary interpreted draconian legislation in favour of human rights often striking down the offensive clauses in legislation. Indeed the perception towards the judiciary by the common person was that of a protector of human rights. One landmark human rights decision on the Land Reform Programme (LRP) stated that farm invasions were unlawful and an affront to section 16 of the Constitution. The SC ordered the executive to take necessary measures to ensure that invasions were sanctioned. It further requested the executive to furnish a plan of action for the LRP. The execuitve did not welcome this ruling and the SC judges wre hounded out of office in a clear culmination of judiciary-executive tension. A new bench came in under CJ Chidyausiku (the Chidyausiku bench). This bench made several rulings that took away individual property rights without justification. In a clear shift of jurisprudential ideology, the current bench has not engaged in activism resulting in less, if not no, protection of human rights. The disparity in the jurisprudence is evident in other cases. The current bench seems to have abrogated its mandate to protect human rights. This study is thus prompted to investigate why the different benches in Zimbabwe have produced totally variant jurisprudence, particularly in light of the fact that the judiciary is operating under the same laws and is appointed under the same procedures as before. ... Chapter 1 sets out the focus and content of the study. Chapter 2 gives a national framework for human rights protection in Zimbabwe. This looks at the structure of courts in Zimbabwe. Special emphasis is placed on the SC as the court that has the prime mandate of protecting human rights. Constitutional guarantees for the independence of the judiciary and the Bill of Rights, among others, is analysed. Chapter 3 deals with human rights jurisprudence of the SC benches. The chapter focuses on approach of the benches to human rights protection. It examines the approach to procedural and technicalities that often hinder human rights litigation and protection such as standing, delay, interpretation, compliance with court orders and use of international instruments. Chapter 4 focuses on the experiences from Uganda and analyses the approach of the Ugandan courts. Chapter 5 consists of best practices from the two jurisdictions, conclusion and recommendations for the Zimbabwean judiciary." -- Introduction.
Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2005.
Prepared under the supervision of Professor Frederick Jjuuko at Human Rights and Peace Centre, Faculty of Law, Makerere University in Uganda
http://www.chr.up.ac.za/academic_pro/llm1/dissertations.html
Centre for Human Rights
LLM

Thesis (LL.M.)--Stellenbosch University, 2003.
ENGLISH ABSTRACT: In recognition of the socio-economic imbalances inherited from the past and the abject poverty experienced by many, the people of South Africa adopted a Constitution fully committed to protecting socio-economic rights and advancing social justice. Apartheid constituted a violation of every internationally recognised human right. Seen in this light the emphasis on socio-economic rights in the new South African Constitution represents a commitment to guarantee to everyone in society a certain minimum standard of living below which they will not be allowed to fall. As the Constitution recognises socio-economic rights as justiciable rights, they can be of assistance to those who are unable to support themselves when challenging the state for the non-delivery of basic services. The duty to deliver the services lies first with the state and the court becomes involved only once it is alleged that the state has failed to fulfil its duty. The primary purpose of the study is aimed at determining the effectiveness of the South African Human Rights Commission in monitoring court orders in respect of the implementation of socio-economic rights. Non-Governmental Organisations, involved in the promotion and protection of human rights including socio-economic rights, cannot be left out of the process. It is argued that where the Courts issue structural interdicts, which have of late been used by them, albeit not enough in the context of socio-economic rights, they are responsible for the implementation of such orders. It is also argued that the South African Human Rights Commission and NGOs must be enjoined to ensure that court orders are better implemented. Court orders in respect of socio-economic rights in almost all the cases to date were neither implemented nor monitored adequately.
AFRIKAANSE OPSOMMING: Ter erkenning van die sosio-ekonomiese ongelykhede wat post-apartheid Suid- Afrika geërf het en die volslae armoede waaraan talle Suid-Afrikaners onderwerp is, het die mense van Suid-Afrika 'n grondwet aanvaar wat verbonde is tot die beskerming van sosio-ekonomiese regte en die bevordering van maatskaplike geregtigheid. Apartheid het elke internasionaal-erkende mensereg geskend. Teen hierdie agtergrond verteenwoordig die klem op sosioekonomiese regte in die nuwe Suid-Afrikaanse grondwet 'n verbondenheid daartoe om vir elkeen in die maatskappy 'n bepaalde minimum lewensstandaard te waarborg, waaronder hulle nie toegelaat sal word om te sak nie. Aangesien die grondwet sosio-ekonomiese regte as beregbare regte erken, kan hierdie regte van nut wees vir mense wat hulself nie kan onderhou nie, as hulle die staat uitdaag omdat basiese dienste nie gelewer word nie. Die plig om dienste te lewer berus eerstens by die staat, met die gevolg dat die hof eers betrokke raak as die staat nie daarin slaag om sy plig te vervul nie. Die primêre doel van hierdie studie is om vas te stel hoe effektief die Suid- Afrikaanse Menseregtekommissie is met die monitering van hofbevele wat betrekking het op die verwesenliking van sosio-ekonomiese regte. Nieregeringsinstansies wat betrokke is by die bevordering en beserkming van menseregte, met inbegrip van sosio-ekonomiese regte, kan egter nie uit die proses gelaat word nie. In hierdie studie word aangevoer dat waar die strukturele interdikte gee, soos wat in die onlangse verlede gebeur het, selfs al is dit nie genoeg in die konteks van sosio-ekonomiese regte nie, hulle ook verantwoordelikheid is daarvoor dat sulke bevele uitgevoer word. Dit word verder gestel dat die Suid-Afrikaanse Menseregtekommissie en nieregeringsinstansies moet saamwerk om te verseker dat hofbevele beter uitgevoer word. Tot op datum is amper geen hofbevele oor sosio-ekonomiese regte bevredigend uitgevoer of genoegsaam gemoniteer nie.

In recent years, the potential to speed up legal processes via Machine Learning techniques has increased. Consequently, this study serves to investigate different NLP and ML methods. It does this by building a model that predicts whether or not an article of ECtHR has been violated, based on the texts of the published case law. The most effective model, which consists of a Neural Network (for embedding the corpus) and a SVM (as classifier), reaches a total mean accuracy of 72%.