Rights In Domestic Law Research Articles

Towards a Right to the City?

Abstract This article illustrates the transformative potential of guaranteeing justiciable socio-economic rights in domestic law, by engaging with the judicial vindication, over nearly a quarter-century, of the right to housing in the South African Constitution. Initial assessments of housing rights litigation in the country suggested that, while the right provided temporary protection against eviction and could provide temporary relief in housing emergencies, it was of limited use in addressing spatial injustice and unequal access to affordable housing. But over time, judicial vindication of the right to housing has given poor and vulnerable communities a foothold in cities, which is productively being leveraged by social movements claiming a right to the city. Meanwhile, separate remedial frameworks around land rights and political participation appear to be slowly converging with the housing jurisprudence, in ways that hold significant potential for transformative change in South African cities.

The Changing Concepts of the Constitution.

There have been several important formal changes to the United Kingdom's constitution over the past few decades, including devolution to Northern Ireland, Scotland, and Wales; the incorporation of the European Convention on Human Rights in domestic law; and the creation of a new Supreme Court. This article is about the informal semantic changes that may have accompanied these formal changes. It focuses on several central concepts: parliamentary sovereignty, the rule of law, the separation of powers, devolution, and human rights. Using a recently developed machine learning method to analyse a massive corpus of parliamentary debate, the article gauges the extent to which these concepts have become more (or less) related to the meaning of the UK's constitution in parliamentary discourse. Ultimately, the analysis supports some important theoretical expectations about the changing nature of the constitution, including the claim that parliamentary sovereignty is now a less significant concept for the meaning of the constitution than it once was.

Chinese Human Rights and the Liberal World Order

Most scholars and researchers interested in China have researched about economic development, foreign policy, competition and cooperation between China and the United States and other major powers, and various scenarios for the transfer of power from the United States to China. An area that has received little attention is the issues related to democracy and human rights in China. The purpose of writing this article is to examine issues related to the place of human rights in domestic law and the country's approach to international legal order based on liberalism. The question of this article is: what components is China's approach to the liberal human rights order in the world based? The hypothesis of this article, which tries to prove it using analytical and explanatory methodology, is that China emphasizes the conditions and characteristics of each country by criticizing the liberal human rights order and the dual policy of the West. China's human rights order stems from the Beijing Consensus on multinational relations, economic relations between actors, and political differences and national and regional cultural diversity. From the perspective of China's executive elite, the common framework of this order is not based on homogenization and globalization that lead to hegemony, but on the simultaneous recognition of commonalities and differences between global actors.

Property Rights to Land Plots in the Russian Federation and Great Britain: Dogmatic Approach against Pragmatism

Comparison of the phenomenon of property rights in two unrelated legal systems is an interesting task from the point of view of methodology. A simplifying factor is that English law in its origins was strongly influenced by Roman law, but developed apart from continental legal systems. As a result, using the same terminology in the field of property rights in the Russian Federation and Great Britain, different views have been formed on the nature of property rights to land plots. The paper analyzes the legal structures of real law in both countries and achieves the goal of clarifying the content of controversial terms and classifications existing in the real law of the Russian Federation; taking into account foreign experience the author determines the prospects for the development of domestic concepts of real and absolute rights. The admissibility of comparing property rights to land plots is predetermined by the use of similar legal techniques in both countries, as well as terminology borrowed from Roman law. The paper substantiates the thesis on the admissibility of using the analytical concept of law of W. N. Hochfeld as a comparative legal method of research. Fundamental differences in both legal systems will be in the idea of the object of property rights to land plots, the place of property rights in the classification of rights, in the structure and content of the corresponding legal relationship. Taking into account the analysis of the legal regulation of property rights to land plots in the two countries, theoretical provisions substantiate the conclusion about the need to preserve the idea of the absolute nature of property rights in domestic law.

The protection of human rights in domestic law: learning lessons from the European Court of Human Rights

The Human Rights Act 1998 came into force in October 2000, its purpose to allow victims of alleged violations of rights contained in the European Convention on Human Rights (1950) to pursue a remedy in the domestic courts. Thus, central to the Act’s purpose is to enable the access of the rights and remedies already provided by the machinery of the European Convention, subject only to those provisions of the Act which seek to retain the principle of parliamentary sovereignty. The purpose of this article is to study the case law of the European Court of Human Rights in relation to cases brought against the United Kingdom in order to examine the United Kingdom’s record under the Convention and, hopefully, of identifying common themes of human rights violations for which the United Kingdom has consistently been held responsible, and for which they may remain vulnerable to challenge in the future. At this stage it will be submitted that the European Convention has exposed the limitations of human rights protection in domestic law, and that on many occasions both the courts and Parliament have failed to adopt the necessary jurisprudence of the European Court in their respective roles. Finally, in the light of that evidence the article will examine the provisions of the Human Rights Act 1998 in order to assess the likely impact of that Act on the protection of rights and liberties in the United Kingdom.

EU Law as an Agent of National Constitutional Change: Miller v Secretary of State for Exiting the European Union

This article analyses the recent decision of the UK Supreme Court determining the UK’s ‘constitutional requirements’ for triggering Article 50 TEU. It demonstrates that the underlying disagreement in the case concerned the proper conceptualisation of EU law as it operates in the UK legal order. The Government and its academic supporters denied that EU law rights could be equated to domestic law rights; this allowed them to argue that their loss through withdrawal from the EU would not breach the long-standing prohibition on Executive prerogative action removing domestic law rights or altering domestic law. The article argues that the Supreme Court was right to reject this argument. In doing so, the Court emphasised that EU law had not only deeply infused the domestic legal order but had significantly changed it. Hence use of Executive powers to withdraw from the EU would amount to the Executive changing the constitution. The article considers how this ‘constitutional change’ argument – already strongly criticised – should be understood, and seeks to shed light on it via the notion that constitutional amendment is usually recognised as an exercise of especial normative significance. While acknowledging that the UK’s constitution lacks the formal process for such change required by other European states, it argues that the invocation of this principle in Miller may be related to recent developments in constitutional doctrine recognising the special status of fundamental constitutional rights and principles. In doing so, it argues for a significant change to our understanding of ‘constitutional statutes’.

Brexit, Miller, and the Regulation of Treaty Withdrawal: One Step Forward, Two Steps Back?

In “the constitutional case of the century,” the U.K. Supreme Court concluded that the Government did not possess the prerogative power to withdraw from the European Union. However, while it may be clear from the decision that legislation was required to empower the Government to notify the European Union of its intention to leave, the scope of the Court's reasoning in Miller is otherwise uncertain. At its broadest, the decision would apply to the withdrawal from any treaty that had created rights for individuals, regardless of whether such a treaty had been implemented into domestic law or not. At its narrowest, it only applies to the EU Treaties, which created a set of arrangements in international law that are so esoteric, they are unique to the European Union. To demonstrate how one judgment can generate such a range of interpretations, this essay unravels the different strands of argument running through the decision and considers the criticisms leveled by scholars. It will argue that whether U.K. law requires legislation to withdraw from a treaty depends upon the extent to which that treaty creates rights in domestic law, the constitutional importance of the legislation incorporating the treaty into U.K. law, and the circumstances in which a legal challenge to the use of the prerogative arises. Miller provides no general answer, merely a series of questions.

The Domestic Incorporation of Human Rights Law and the United Nations Convention on the Rights of Persons with Disabilities

This Article reviews the processes by which domestic-level transposition of international human rights norms may occur as a consequence of human rights treaty ratification, or other means of incorporation. Specifically, we consider the transformative vision of the Convention on the Rights of Persons with Disabilities (CRPD or Convention) as a vehicle for fostering national-level disability law and policy changes. In doing so, we outline the challenges and opportunities presented by this new phase in disability rights advocacy, and we draw conclusions that bear generally upon human rights practice and scholarship. We contend that the role of human rights in domestic law and process reflect important dimensions of international law and practice. At the same time, human rights advocates and scholars often fail to account for the potentially mutually constitutive nature of domestication processes and the transformative role that human rights treaties perform within societies. Accordingly, we argue that effective Convention implementation must result in a human rights practice that includes law reform or court-based advocacy, but also moves beyond it to include strategies that support deeper domestic internalization of human rights norms.

Germany: Status of European Convention on Human Rights in domestic law

Status of the European Convention on Human Rights in German domestic law—the right to respect for one's family life—custody and access of a father to his child born out of wedlock and adopted by another family—domestic effect of judgments of the European Court of Human Rights—constitutional complaint based on alleged violation of the European Convention on Human Rights.

The recognition and enforcement of children's rights in domestic law: An assessment of the child protection laws in Botswana in light of prevailing international trends

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Modifying Procedural Autonomy: Better Protection for Community Rights

The author highlights the conflicting demands for certainty and fairness within Member State systems of procedural law. The obstacles to effective implementation of European law are particularly difficult to overcome when the need to maintain certainty in the law has high priority, as in the case of procedural laws. Nevertheless, differences in procedural laws are severely undermining the uniform application of European law in the Member States. The European Court has adopted the approach that national legal systems should have procedural autonomy to a large extent — limited by the need to ensure that Community law rights are not subject to less favourable procedural conditions than those applying in the case of domestic law rights and that it does not become "virtually impossible" for a litigant to assert his or her Community law rights. This approach is unsatisfactory. It does not adequately promote the effectiveness of Community law rights. An alternative theory has emerged in recent ECJ case law, in which the purpose of the national law rule is investigated to determine whether it is compatible with Community law. This approach is also problematic, however. It leads to a high degree of uncertaintyover the validity of national procedural laws. The ECJ should retain its approach based on procedural autonomy, but identify more precisely the particular problems that the case law is trying to resolve. In particular, the key cases are concerned with the inadequate transposition of Directives into national law. Rules specific to this problems should be put in place. The obstacles caused by procedural laws should then be monitored to allow further intervention by way of harmonisation to meet identifiable needs.

The European Convention on Human Rights in Domestic Law: A Comparative Study of the Convention's Position in Denmark and Spain 1

The European Convention on Human Rights in Domestic Law: A Comparative Study of the Convention's Position in Denmark and Spain 1

Human Rights in Domestic Law and Development Assistance Policies of the Nordic Countries. Edited by Lars Adam Rehof and Claus Gulmann. Copenhagen: Danish Center of Human Rights; Dordrecht; Boston: M. Nijhoff, 1988. Pp. ix, 212. Dfl. 100.00; US$54.00; UK£34.00 (hardbound).

Human Rights in Domestic Law and Development Assistance Policies of the Nordic Countries. Edited by Lars Adam Rehof and Claus Gulmann. Copenhagen: Danish Center of Human Rights; Dordrecht; Boston: M. Nijhoff, 1988. Pp. ix, 212. Dfl. 100.00; US$54.00; UK£34.00 (hardbound).

European Convention on Human Rights in Domestic Law: A Comparative Study. By Andrew Z. DrzemczewskiPH.D., of the Legal Secretariat of the Council of Europe, formerly Lecturer in law, Polytechnic of North London. [Oxford: Clarendon Press. 1983 and (paperback) 1985. xiv, 347 and (Bibliography, Appendix and Index) 25 pp. Hardback £30·00, Paperback £18·50 net.

European Convention on Human Rights in Domestic Law: A Comparative Study. By Andrew Z. DrzemczewskiPH.D., of the Legal Secretariat of the Council of Europe, formerly Lecturer in law, Polytechnic of North London. [Oxford: Clarendon Press. 1983 and (paperback) 1985. xiv, 347 and (Bibliography, Appendix and Index) 25 pp. Hardback £30·00, Paperback £18·50 net.

The Status of the European Convention of Human Rights in Domestic Law

The Status of the European Convention of Human Rights in Domestic Law