The waiver of human rights as a new constitutional paradigm

Based on jurisprudence from the Supreme Court of Canada and the ECHR, this paper aims to demonstrate that the waiver of human rights is no longer exceptional, but rather a new constitutional paradigm. The rise of the waiver paradigm could be explained by the current struggle for recognition of pluralism, the constitutional principle of autonomy and the judicial models according to which human rights are broadly defined and adjudicated by courts, contingently to the social concerns of the free and democratic society. In this context, waivers are often choices expressing the preferences of individuals and minorities through the process of adjudication of their rights, and not mere threats to those rights. Canadian and European Courts have drawn binary models according to which human rights are waivable or not. We will suggest that analyzing the legality of waivers through a model of validity based on proportionality would better address the legal issues currently faced by courts.