In the United Kingdom, fundamental rights and fundamental principles reasoning creates tensions on the frontier between law and politics, particularly between parliamentary legislation and judicial interpretation of statutes. As Lord Hoffman said in Simms '[f]undamental rights cannot be overridden by general or ambiguous words' of a statute'. The problem is that aiming to interpret 'general or ambiguous' statutory wording to achieve a result consistent with fundamental rights carries a non trivial risk of violating the legislative supremacy of Parliament and the rule of law. Even an appearance of violating a statute as enacted by Parliament is highly problematic. In this paper, I propose a sketch of a solution. Following Philip Sales, I argue that a fundamental right or principle may be taken as relevant in statutory interpretation only to the extent there was a consensus over that right or principle in the political community at the time the statute in question was enacted.
In contrast to the more traditional, liberal approach to human rights, epitomized by the work of the European Human Rights System, a more systemic approach has evolved within the Inter-American and African regional systems. This paper highlights the manner in which that approach has evolved through those systems’ encounters with massive violations, transitional moments, and group-based violations; through their deployment of different institutional mechanisms; and through their adoption of a more assertive approach to remedies. The paper then explores the broad contours of this alternative approach, and the impacts it has on general understandings of the nature of human rights law. The paper concludes by exploring the value offered by adoption of a more systemic approach to rights work.
My paper explores the role of the Inter-American Commission on Human Rights as a human rights arbitrator through the use of friendly settlements. I discuss whether friendly settlement mechanisms provide better avenues for implementation of international legal standards. By forcing States to internalize the agreement they reach with petitioners, this mechanism creates a different power relation among participants. The victim, whose rights are negated at the domestic level, finds herself in front of the State with the chance to voice her grievances and, ultimately, press for legal and political changes. Legal scholars have little attention to the normative and practical challenges that settling human rights violations poses: when States settle, should domestic decision-makers have a say on that decision or is it only up to the Executive to commit, for instance, to promote legislation change? What is the position of other States not involved in the procedure?
Article 21 of Constitution of India provides, “No person shall be deprived of his life or personal liberty except according to procedure established by law.” Obviously, its mandate is both vertical and horizontal. However, it is not clear from its text whether the power of the State to enact the law and lay down procedure for deprivation of life and personal liberty of any person is subject to any qualification. The question is significant because under Article 19 , certain freedoms are conferred on the citizens and the power has been vested in the State to impose restrictions on such freedoms, the same is qualified by the principle of ‘reasonableness’ and the courts are empowered to take call. In absence of ‘like’ qualification under Article 21, should it be interpreted in the light of Articles 19 and 14 (Equality) is a crucial question, answered affirmatively by the courts. But the same lacks a sound jurisprudential and textual footing. In this paper I would try to provide the same
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.