Status Of Fundamental Rights Research Articles

ECOWAS COMMUNITY COURT OF JUSTICE: FEATURES AND CHALLENGES OF ITS HUMAN RIGHTS MANDATE

The protection and promotion of human rights have remained a top priority of the international community for several decades. The violation of the fundamental rights of States and individuals have given rise to a plethora of conflicts both at the international and national level, thus, requiring effective laws and judicial institutions to accord protection of these rights to persons living within specified national territory. The ECOWAS Community Court of Justice since 2005 acquired jurisdiction over human rights matters, giving bold judgements in condemnation of breach of human rights by member parties of the ECOWAS Community. This paper aims at examining the unique human rights features of the ECOWAS Court of justice as well as the inherent challenges facing the court. The paper finds that despite the huge progress made by the court in receiving and deciding on human rights complaints from individuals and NGOs, the decisions of the court are hardly obeyed by member States and the court has no recognized institution to monitor and implement its decisions. The paper relies on primary and secondary sources of information such as International Conventions and Treaties, Books, Journal articles, Judicial Precedents and Internet materials. The paper concludes that the leadership of ECOWAS Community and the regional court must make concerted efforts in addressing the current challenges confronting the court, including monitoring and implementing the decisions of the ECOWAS Court.

Sovereign Rights of the State and the Scope of their Implementation in the Context of Development of the International Human Rights Law

In the contemporary science of international law, the state sovereignty issue lacks adequate treatment. In particular, the list and essence of sovereign rights and duties of the state are not defined, although these are referred to in some international legal instruments and resolutions of international courts and arbitrations. In addition, particular circumstances are being under development, which require if not precise outlining of the catalogue of fundamental rights of states, then at least determining the essence of some of these rights and the scope of their implementation. It goes about developing the practice to limit specific sovereign rights of the state to ensure the implementation of human rights (notably, the ones not directly related to the respective rights of the state). In this very way, the state is limited in its right to determine its own immigration policy. The fact is that the European Court of Human Rights (ECtHR) has ruled in some of its judgments that by implementing this right, the state violates the right to respect for private and family life provided for by the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (ECHR). This resulted in ECtHR`s practice to be somewhat considered in the draft articles on the expulsion of aliens elaborated by the International Law Commission (ILC) in 2014. The examples from ECtHR`s practice analyzed in this paper provide the basis for the conclusion that the development of the International Human Rights Law is gradually narrowing the scope of the internal sovereign rights of the state.

The EU Charter of Fundamental Rights Five Years On: The Emergence of a New Constitutional Framework?

The scope and impact of fundamental rights in EU law is a fascinating topic. Part of the fascination lies in their somewhat unclear role and ambit, and the force with which these rights may be charged when and if applicable. The entry into force of the EU Charter of Fundamental Rights (hereinafter ‘the EU Charter’ or ‘the Charter’) has certainly given a new impetus in the academic discussion of the status of fundamental rights in EU law. Irrespective of that discussion, the fundamental rights are now increasingly being invoked in cases before the Court of Justice of the European Union (hereinafter ‘the Court of Justice’ or ‘the Court’). An intriguing question in this context is whether fundamental rights, post the EU Charter, are having an impact on the scope and nature of EU law, and thus are bringing about a new constitutional framework.

The Relationship Between the Internal Market and Fundamental Rights: Strengthening Freedom to Conduct a Business in the Service of the European Union Economic Integration

Originally called the European Economic Community, the European Union has evolved over the past fifty decades, with the adoption of the Charter of Fundamental Rights of the European Union in 2000, to become more than a purely economic construction. Combining economic and non-economic preoccupations, this Charter not only strengthens the Union as a community of law, but also contributes to its economic clout with its Article 16 interpreting the Freedom to conduct a business as a Fundamental Right. Thus, while the Court of Justice of the European Union began to give priority to non-economic concerns over economic interests in the early 2000s, it is interesting to observe how the Court now understands the Four Freedoms in the light of the Freedom to conduct a business. By elevating “Freedom to conduct a business” to the status of Fundamental Rights, this Article seems to further complicate the relationship between economic and non-economic concerns. Article 16, which could be a new factor in the equation, could thus tip the balance in favour of economic integration rather than social integration.

Ochrona praw mniejszości w II Rzeczypospolitej Polskiej w świetle postanowień tzw. małego traktatu wersalskiego z 1919 r.

The Versailles system of the protection of national minorities’ rights was based on international agreements which had been imposed by the victorious powers of Entanta onto the former central states (except Germany), and on to the states formed after World War I. Compliance with the provisions of the minority treaties was covered by political and judicial guarantees from the League of Nations. The first of the series of minority treaties was the treaty signed by Poland on June 28, 1919, simultaneously with the peace treaty with Germany. The so-called ‘small treaty of Versailles’ obliged the Polish state to introduce the principle of equality before the law of all citizens regardless of nationality, to ensure freedom of religious practice, and to grant minorities specific language rights in education and the judiciary. The Jewish population obtained the right to celebrate the Sabbath on Saturday, and to run state-funded schools in Yiddish as a language of instruction. Treaty obligations for all minorities had been given the status of fundamental rights by including them in the March Constitution of 1921. Because the Polish state pursued an ethnic policy unfavourable to minorities, numerous violations of the treaty by its organs were the subject of petitions addressed o the League of Nations Council. The practice-oriented petition procedure allowed representatives of minorities to submit complaints, although the treaty granted the right to intervene to protect minority rights only to member states of the Council. On the initiative of Germany, cases concerning the violation of the rights of the German minority by the Polish state were examined by the International Court of Justice in Hague, which usually issued rulings unfavourable for Poland. Other minorities living in Poland did not gain such support from the Council member states, hence their petitions were dealt with as intended by the Polish government and did not end up in court. The fact that Germany was abusing the treaty guarantees to create an image of Poland as a country persecuting minorities served as an excuse for the Polish state to declare its cessation of applying the treaty obligations. The Declaration on September 1934 was one of the reasons why the Versailles system of the protection of minority rights, which in practice was an instrument of political interference of European powers in the internal affairs of other states, collapsed.

The Doctrine of Fundamental Rights of States and Anthropomorphic Thinking in International Law

This article recalls the various manifestations of the anthropomorphic doctrine of the fundamental rights of states with a view to critically examining the various functions of anthropomorphic thinking in international law. This allows the article to provide some critical insights on the remnants of the doctrine of fundamental rights of states and the role played by those anthropomorphic residues in contemporary international law. This article is built on a diachronic examination of the functional changes which the doctrine of fundamental rights of states underwent since its origin. This article, after some introductory considerations on the relations between rights and anthropomorphic thinking, examines how anthropomorphic thinking materialised in the form of a doctrine of fundamental rights of states and came to thrive in international legal thought. The article then turns to the manifestation of the doctrine of fundamental rights of states in the inter-American and United Nations contexts with a view to shedding light on the functions that such positive rules pertaining to the fundamental rights of states were meant to play in the international legal order. The article subsequently discusses the demise of the classical doctrine of fundamental rights of states and the foundering of the codification process in order to examine the role that the remains thereof are meant to play in contemporary international law. It ends with a few concluding remarks on the ubiquity of anthropomorphic thinking about international law. Throughout this examination of the functions of the anthropomorphic doctrine of fundamental rights of states, this article espoused the view that, in of contemporary legal argumentation, the notion of fundamental right of state does not constitute any autonomous construction to which specific legal effects are ascribed but rather a textual package of contestation and resistance.

Fundamental Rights of States in International Law and the Right to Peaceful Nuclear Energy

This article is part of a special issue of the Cambridge Journal of International & Comparative Law addressing the concept of the fundamental rights of states in international law. The article will first consider this theme from a legal theoretical perspective. It will conclude that fundamental rights of states exist in international law as autonomous juridical principles. The article will then proceed to discuss one such asserted fundamental right of states: the right to peaceful nuclear energy, as codified in the 1968 Nuclear Nonproliferation Treaty. It will argue that the right to peaceful nuclear energy is indeed a fundamental right of states, and that it has juridical substance, and carries juridical implications, as a rule of law on par with other rules of the jus dispositivum.

Fundamental Rights of States: Constitutional Law in Disguise?

This contribution analyses the development of the doctrine of fundamental rights of states in German international law doctrine. It shows how the doctrine, despite its natural law origins, was able to adapt and flourish in a more positivist environment in the late 19th and early 20th century. It was highly malleable with respect to the uses to which it was put. Accordingly, it was both relied on in order to support National Socialist conceptions of international law as well as to connect with a return to natural law after World War II. With a turn to more pragmatist approaches in German scholarship since the middle of the 20th century the doctrine seemed to have faded away. However, the contribution argues that it has witnessed a somewhat unexpected comeback. Driven by some functional and constructive analogies with parts of the constitutionalisation literature, it is possible to see traces of the doctrine reemerge. In this respect, it may even be said to resemble parts of the recent case law of the German Federal Constitutional Court which has put a strong emphasis on sovereignty and self-determination as limits towards international and European integration.

Is There Any Room for the Doctrine of Fundamental Rights of States in Today's International Law?

This article serves as a general substantive introduction to the special issue on the fundamental rights of states in international law. It introduces the concept in theoretical and doctrinal terms, and lays out the questions that will be addressed by the contributions to the special issue. These questions include: 1) What do attributes like ‘inherent’, ‘inalienable’ and ‘permanent’ mean with regard to state rights?; 2) Do they lead to identifying a unitary distinct category of fundamental rights of states?; 3) If so, what is their source and legal character?; 4) What are their legal implications, eg, when they come into conflict with other obligations of the right holder or with the actions of other states and international organisations?; and ultimately, 5) Is there still room in today’s international law for a doctrine of ‘fundamental’ rights of states? The article reviews the fundamental rights of states in positive law sources and in international legal scholarship, and identifies the reasons for a renaissance of attention for this doctrine.

The Fundamental Rights of States in Neoliberal Times

This is a critical introduction to the symposium on “The Fundamental Rights of States”. Whether such rights exist, the bounds of their existence, or whether they ought to be striven towards are questions of considerable import in the wake of the Greek sovereign debt crisis or even given the ongoing Palestinian struggle for permanent sovereignty over their natural resources. I briefly outline how we might consider the question: is there any progressive political value in buttressing the state and its autonomy, through the doctrine of fundamental rights, in today's neoliberal world? First, I examine how we may progressively look at fundamental rights - as doctrine, narrative, memory or discourse. Second, I question the extent to which it is useful to see competing subjectivities, i.e. the maligned state against technocratic institutions, in a time where neoliberal logic has come to structure the workings of the state. It becomes quickly apparent that the discourse of fundamental rights may be used to both resist neoliberalism and enable it.

Fundamental Rights in the European Union: Towards Higher Law of the Land? A Study of the Status of Fundamental Rights in a Broader Constitutional Setting (review)

Fundamental Rights in the European Union: Towards Higher Law of the Land? A Study of the Status of Fundamental Rights in a Broader Constitutional Setting (review)

Book Review: Fundamental Rights in the European Union – Towards higher law of the Land? A study of the status of fundamental rights in a broader constitutional setting, by Mats Lindfelt. (

Book Review: <i>Fundamental Rights in the European Union – Towards higher law of the Land? A study of the status of fundamental rights in a broader constitutional setting</i>, by Mats Lindfelt. (

The Sinews of Peace: Rights to Solidarity in the Charter of Fundamental Rights of the European Union

Abstract. This article examines the provisions on social and economic rights contained in the Charter of Fundamental Rights of the European Union. After a conceptual clarification of the terms “fundamental rights” and “rights to solidarity,” three main claims are made. First, not all rights to solidarity are granted the status of fundamental rights in the Charter, in contrast with the treatment of the right to private property. Second, positive law does not justify such an approach. An analysis of the sources of the Charter clearly indicates that the right to private property is not a proper fundamental right as Community law stands. Third, rights to solidarity could be construed as a repository of arguments that Member States and regions could invoke when claiming an exception to the four fundamental freedoms.

Current issues in the regulation of deceptive advertising: Some consequences for South Africa

The dramatic political changes that have recently taken place in South Africa have focussed attention on the adequacy of the existing controls on deceptive advertising. On the one hand, there is a recognition that, due to the limited access to educational opportunities in the past, the majority of South African consumers might be particularly susceptible to deceptive advertising and thus existing controls might need to be tightened. On the other hand, the new interim Constitution has elevated freedom of speech and access to the media to the status of fundamental rights to which other controls are subject. These rights are likely to provide a basis to challenge both the existing controls and any attempt to tighten the control of advertising content. This article outlines the controls on deceptive advertising that currently exist in South Africa. It then examines the current debate surrounding the need for and the efficacy of such controls.

The Authority of Vattel II

In a previous paper the attempt was made to state Vattel's system of municipal and international jurisprudence, and to show in a general way the authority attributed to his treatise on international law. It remains for us to consider the technical rules of international law proposed by Vattel and thus to lay the basis for a critical estimate of the position to which his treatise is entitled among the classics of international law.The rules of conduct which nations have voluntarily adopted for themselves, and which therefore constitute the law between them, may be divided, with regard to their intrinsic character, into two general classes: first, rules which define certain principles of moral conduct or which embody the recognition of certain fundamental rights of states, and secondly, rules which define the concrete application of principles to the practical relations of states. Chief of the rules defining principles of moral conduct is the rule of good faith between nations, which in its many applications pervades the whole field of international law. This rule of good faith is not merely an a priori conception deduced from the analogy between sovereign states as members of an international community and private persons as members of society; it is a rule of positive international law, accepted by nations as properly controlling their conduct, and appealed to by them in their diplomatic relations.