Bills of Rights:A Comparative Perspective

Bills of rights are currently a much debated topic in various jurisdictions throughout the world. Almost all democratic nations, with the exception of Australia, now have a bill of rights. These take a variety of forms, ranging from constitutionally entrenched bills of rights, such as those of the United States and South Africa, to non-binding statements of rights. Falling between these approaches are non-entrenched, statutory bills of rights. As regards the latter, a model which has become increasingly popular is that of bills of rights based on interpretative obligations, whereby duties are placed upon courts to interpret national legislation in accordance with human rights standards. The aim of this book is to provide a comparative analysis of the bills of rights of a number of jurisdictions which have chosen to adopt such an approach. The jurisdictions considered are New Zealand, the United Kingdom, the Australian Capital Territory and the Australian state of Victoria.

There have been very few books published to date which contain a detailed comparative analysis of the bills of rights which this book addresses. The book adopts a unique thematic approach, whereby six aspects of the bills of rights in question have been selected for comparative analysis and a chapter is allocated to each aspect. This approach serves to facilitate the comparative discussion and emphasise the centrality of the comparative methodology.

Güler and Öngel v Turkey: Article 3 of the European Convention on Human Rights and Strasbourg’s discourse on the justified use of force

This article discusses the discourse on the justified use of force in the Strasbourg Court’s analysis of Article 3. With particular focus on the judgment in Güler and Öngel v Turkey, a case concerning the use of force by State agents against demonstrators, it addresses the question of the implications of such discourse, found in this and other cases, on the absolute nature of Article 3. It offers a perspective which suggests that the discourse on the justified use of force can be reconciled with Article 3’s absolute nature.

The Human Rights Act 1998 – Future Prospects

It is now over fifteen years since the Human Rights Act was enacted in November 1998. Although in legal terms it is difficult to argue with the proposition that the Act is working in an effective manner, in political terms the Act remains one of the most highly debated pieces of legislation on the UK statute books. In recent years there have been numerous calls for the repeal of the Act, and for its replacement with a ‘UK Bill of Rights’. Such calls led to the establishment of a Commission on a Bill of Rights, which issued its final report in December 2012. Little progress has since been made on the issue. One notable occurrence however was the introduction of the Human Rights Act 1998 (Repeal and Substitution) Bill, a Private Member’s Bill which was eventually withdrawn in March 2013. This article seeks to assess the current situation regarding the bill of rights debate, and ultimately the question of the future prospects of the Human Rights Act, an issue of immense legal significance. Overall, it will be questioned whether the enactment of a UK Bill of Rights would constitute an improvement on the current position under the Human Rights Act.

The European Convention on Human Rights Act 2003 – Ten Years On

The European Convention on Human Rights Act 2003 has now been in force in Ireland for ten years. This article analyses the Act itself and the impact which it has had on the Irish courts during the first decade of its operation. The use of the European Convention on Human Rights in the Irish courts prior to the enactment of the legislation is discussed, as are the reasons for the passing of the Act. The relationship between the Act and the Irish Constitution is examined, as is the jurisprudence of the Irish courts towards the interpretative obligation found in section 2(1), and the duty placed upon organs of the State by section 3(1). The article ends with a number of observations regarding the impact which the Act has had on the Irish courts at a more general level. Comparisons will be drawn with the UK’s Human Rights Act 1998 throughout the discussion.

Reimagining rights-based accountability: Community use of economic and social rights

This article explores the ways in which marginalised groups in Northern Ireland have employed and translated for practical use human rights standards, principles and mechanisms to campaign for the implementation of economic and social rights obligations. With the support of Participation and Practice of Rights, a regional nongovernmental organisation, marginalised groups have drawn upon human rights in their local context to campaign on issues related to mental health, housing, work and play. Based on case studies from four such campaigns, this article reviews the practical steps groups took to engage directly or indirectly with economic and social rights tools and mechanisms. The article reflects on the usefulness of these frameworks and mechanisms for achieving change in the case studies discussed, as well as the value of a human rights framework for empowering marginalised communities to make rights-based demands for change. It is argued that although the realisation of economic and social rights is limited in part by the lack of traditional enforcement mechanisms, community driven campaigns offer an opportunity for reimagining mechanisms for rights-based accountability.

Minority Rights and Minority Protection in Europe

In order to gain access to the EU, nations must be seen to implement formal instruments that protect the rights of minorities. This book examines the ways in which these tools have worked in a number of post-communist states, and explores the interaction of domestic and international structures that determine the application of these policies.

The European Convention on Human Rights and the United Kingdom's Supreme Court

This article reviews the attitudes displayed by the UK's Supreme Court towards claims based on human rights law.

Promoting Dignity for All: Human Rights Approaches in the Post-2015 Climate Change, Disaster Risk Reduction and Sustainable Development Frameworks

This article takes as its starting point the potentially negative human rights implications that the effects of climate change, disasters and development practices can have on individuals and communities. It argues that key international instruments, including the post-2015 successors to the Kyoto Protocol, Hyogo Framework for Action on disaster risk reduction and the Millennium Development Goals, appear to be moving towards an express acknowledgment of the relevance of international human rights law as an important mechanism to minimise potential harms that may arise. This raises the question as to the appropriate role of the UN human rights monitoring and accountability mechanisms in identifying the relevant rights-holders and duty-bearers. The article therefore provides an examination of the linkages between climate change and international human rights law, as well as discussion of the human rights considerations and accountability mechanisms for disasters and sustainable development. The article concludes by arguing that despite differential understandings between disciplines as to the meaning of key terms such as ‘vulnerability’ and ‘resilience’, international human rights law provides a comprehensive basis for promoting international and national accountability. It follows that a greater level of coordination and coherence between the human rights approaches of the various post-2015 legal and policy frameworks is warranted as a means of promoting the dignity of those most affected by climate change, disasters and developmental activities.

ECJ Fundamental Rights Jurisprudence between Member States' Prerogatives and Citizens' Autonomy

This chapter provides an analysis of the European Court of Justice's Fundamental Rights Jurisprudence, focused on the potential of Member States to maintain any positive regulatory role in supporting citizens' autonomy on the one hand, and on the impact of the Court's case law on citizens' opportunities to actually enjoy human rights within societies (substantive autonomy). It first sketches the notion of autonomy which is proposed as base of fundamental rights protection and promotion within a social reality characterized by not democratically legitimated dominance based on wealth and economic power. It proceeds to contextualize ECJ case law on fundamental rights. This section starts with a quantitative appetizer, which will formalize some assumptions and test them on a total of 150 cases before the European judiciary. The paper then offers a more conceptual recount around fundamental rights to equality and non-discrimination on the one hand and around fundamental rights of workers to actively shape employment and labor relations on the other hand. In conclusion some suggestions are made of how ECJ fundamental rights doctrine could develop more positively in order to moderate diverging interests of different parts of the citizenry in protecting fundamental rights.

Proportionality in Age Discrimination Cases - a Model Suitable for Socially Embedded Rights

This chapter discusses the use of proportionality in age discrimination cases before the Court of Justice of the European Union. It argues that the Court does not use this concept systematically - indeed it exposes some contradiction that make the case law seem arbitrary - and proposes a more fruitful use of the principle, which is in line with a modern conception of human rights. The chapter argues that the principle of proportionality stems from the time when human rights served the recently liberated burgeois elite in guarding their rights to property and liberty against the state. Today, states not only respect human rights (which is fully sufficient for this elite, who can rely on their inherited wealth to fend for themselves). They also protect and promote human rights, and these activities are a precondition for human rights to be practically relevant for the whole population. This also means that state activity, which is experienced as a limitation of rights to property and liberty by some, may constitute a measure to promote and protect human rights of others. In employment law - the only field where the EU ban on age discrimination is applied - this is a typical situation. If such a situation occurs, the principle of proportionality must be applied in a bifurcated way.It is not sufficient that the limitation of property rights is proportionate for the achievement of a public policy aim. If the aim of public policy is to enable the effective use of human rights, the limitation of the state action must be proportionate to the protection and promotion of those human rights. It is argued that the principle of proportionality is superior to less structures balancing acts (e.g. the Wednesbury principle), if it is applied both ways. Going over to the field of age discrimination, the chapter identifies a number of potentially colliding aims pursued in this field. Banning age discrimination may relate to genuine aims of anti-discrimination law if bias against older or very young workers is addressed. However, the EU ban of discrimination against all ages also serves to restructure employment law and policy to the age of flexibilisation, replacing the synchronisation principle that has been predominant for the welfare states of the 20th century. The former aim is related to human rights protection, while the latter aim is not (at least not always). This has consequences for applying the proportionality test. The chapter proposes different ways to argue the most difficult age discrimination cases, where anti-discrimination rationales and flexibilisation rationales clash

The European Court of Human Rights and Domestic Violence: Valiuliene v Lithuania

This article analyses the recent jurisprudence of the European Court of Human Rights on the issue of domestic violence, with a particular focus on Valiuliene v Lithuania. It seems that to date the Court’s jurisprudence on this issue is somewhat inconsistent, and with Valiuliene v Lithuania the Court was given an opportunity to clarify its approach in this area. There are certainly a number of positive aspects to the Court’s judgment, however there are also difficulties with the approach of the Court in this case. Overall it is to be hoped that the judgment in Valiuliene v Lithuania will mark the beginning of a more coherent jurisprudence as regards domestic violence.