Taking as a starting point the widely accepted view that states confronted with terrorism must find a proper equilibrium between their respective obligations of preserving fundamental rights and fighting terrorism effectively, this book seeks to demonstrate how the design and enforcement of a human rights instrument may influence the result of that exercise. An attempt is made to answer the question how a legal order's approach to the limitation of rights may shape decision-making trade-offs between the demands of liberty and the need to guarantee individual and collective security. In doing so, special attention is given to the difference between the adjudicative methods of balancing and categorisation. The book challenges the conventional wisdom that individual rights, in times of crisis, are better served by the application of categorical rather than flexible models of limitation. In addition, the work considers the impact of a variety of other factors, including the discrepancies in enforcing an international convention as opposed to a national constitution and the use of emergency provisions permitting derogations from human rights obligations in time of war or a public emergency.
Taking as a starting point the widely accepted view that states confronted with terrorism must find a proper equilibrium between their respective obligations of preserving fundamental rights and fighting terrorism effectively, this book seeks to demonstrate how the design and enforcement of a human rights instrument may influence the result of that exercise. An attempt is made to answer the question how a legal order’s approach to the limitation of rights may shape decision-making trade-offs between the demands of liberty and the need to guarantee individual and collective security. In doing so, special attention is given to the difference between the adjudicative methods of balancing and categorisation. The book challenges the conventional wisdom that individual rights, in times of crisis, are better served by the application of categorical rather than flexible models of limitation. In addition, the work considers the impact of a variety of other factors, including the discrepancies in enforcing an international convention as opposed to a national constitution and the use of emergency provisions permitting derogations from human rights obligations in time of war or a public emergency. The research questions are addressed through a comparative study of the terrorism-related restrictions on five fundamental rights protected under the European Convention on Human Rights and the United States Constitution: the right to freedom of expression, the right to freedom of association, the right to personal liberty, the right to privacy, and the right to a fair trial. The book offers both a theoretical account of the paradoxical relationship between terrorism and human rights and a comprehensive comparative survey of the major decisions of the highest courts on both sides of the Atlantic.
If deeply seen, one can seldom find a single human right that would not be affected by terrorist attacks. Not to mention terrorism''s devastating impacts on various sets of human rights, the fact that it destroys ‘freedom from fear'' makes it clear that any terrorist act is inherently irreconcilable with human rights. This justifies counter-terorism measures. However, many a times, such measures are pretexts to violate fundamental rights. The United Nations passed a number of resolutions showing the commitment of the international community to take human rights seriously while countering terrorism. Ethiopia has adopted an anti-terrorism legislation. This book analyzes the impacts of terrorism and counter terrorism on human rights protection; describe the responses of the United Nations and most importantly appraise the human rights implications of the anti-terrorism law of Ethiopia. It gives academicians, journalists,and the public at large an excellent understanding regarding the interplay between terrorism and counter-terrorism vis-a-vis human rights protection and the negative and positive implications of Ethiopia''s anti-terrorism law from a human rights perspective.
Kenya gained independence in 1963 after an internecine war between the British Colonial administration and the freedoms fighters. The British occupied Kenya for almost 100 years and in early 1960, the British started negotiating for independence that culminated to the writing of Independent Constitution by a few selected people in London. The Independent Constitution had a bill of right that was modeled in the European Convention on Human Rights of 1951. After independence the independent constitution went through a number of amendments whose net effect was to concentrate power to the executive while emasculating both the legislature and the judiciary. As a consequence there was widespread violation of human rights and Kenyans started agitating for constitutional reforms leading to the historic referendum where Kenyans voted at over 60% for the new constitution in April 2010. This dissertation has done a historical evolution of human rights in Kenyan. A comparison of the bill or rights as contained in the independent constitution and the new constitution has been made.
Terrorism is a one of the major challenges facing countries all over the world; However many states in their response to terrorism have overreacted the threat of terrorism and have adopted counterterrorism legislations that forfeited fundamental rights and freedoms in the name of protecting national security. Egypt, under President Mubarak’s Regime, has been one of those states that have exceedingly abused its counter-terrorism powers to vanquish many of the Egyptians’ constitutional rights and freedoms. This dissertation explores and analyzes the scope of fundamental rights and freedoms under Egypt’s counter-terrorism legal framework. It further undertakes a comparative study of the American and international anti-terrorism legal frameworks to examine how they have dealt with these issues and inquires into whether these legal systems have adequately reconciled national security with human rights. This work is intended to help enhance the rule of law and to ensure that human rights are respected in post-Mubarak Egypt by underscoring the limits with regard to human rights that the new counter-terrorism legal framework must respect.
This book provides a critical introduction to the history and current meaning of the United States' Constitution. It is organised around two themes: Firstly, the US Constitution is old, short, and difficult to amend. These characteristics have made constitutional "interpretation", especially by the US Supreme Court, the primary mechanism for adapting the Constitution to ever-changing reality. Secondly, the Constitution creates a structure of political opportunities that allows political actors, including political parties, to pursue the preferred policy goals even to the point of altering the very structure of politics. Politics, that is, often gives meaning to the Constitution. Deploying these themes to examine the structure of the national government, federalism, judicial review, and individual rights, the book provides basic information about, and deeper insights into, the way the US constitutional system has developed and what it means today.
This book provides a critical introduction to the history and current meaning of the United States' Constitution. It is organised around two themes: Firstly, the US Constitution is old, short, and difficult to amend. These characteristics have made constitutional 'interpretation', especially by the US Supreme Court, the primary mechanism for adapting the Constitution to ever-changing reality. Secondly, the Constitution creates a structure of political opportunities that allows political actors, including political parties, to pursue the preferred policy goals even to the point of altering the very structure of politics. Politics, that is, often gives meaning to the Constitution. Deploying these themes to examine the structure of the national government, federalism, judicial review, and individual rights, the book provides basic information about, and deeper insights into, the way the US constitutional system has developed and what it means today.
A critical discussion of EU and ECHR migration and refugee law, this book analyses the law on asylum and immigration of third country-nationals. It focuses on how the EU norms interact with ECHR human rights case law on migration, and the pitfalls of European human rights pluralism.
This book is the first to discuss the new constitutional settlement in Iraq, the manner in which it came about, and how it has been implemented since coming into force in 2006. The book presents the constitution-making process, focusing on the wider factual, historical and legal context, the drafting exercise and how it evolved in practice, and the legitimacy of the final text as affected by that process. The book also highlights the most contentious aspect of the new constitution, the federal system, emphasizing the horizontal and vertical divisions of legislative, administrative and judicial power, the flexibility offered by possible devolution of competence from the centre, and the distribution of natural resources. These provisions have affected Iraq's traditionally centralised system of government and certain state institutions have resisted the changes. Fundamental rights are also discussed, as is the manner in which they interact with other values such as Islam, socio-economic rights, group rights, international human rights protection and the role of the courts in adjudicating disputes. The book looks carefully at Iraq's constitutional transition, and whether the new settlement has helped to resolve conflict and promote national reconciliation. Finally, the book looks at the informal sectarian system of government that has been enshrined since ratification of the Constitution.
Focusing on the protection of rights in the UK, this book establishes a framework for interactions to better protect rights, facilitate deliberation, engage citizens, and provide for checks and balances. It further evaluates how well these values are achieved in the UK constitution now, and in light of a British Bill of Rights and Brexit.
Co-publication with Witwatersrand University Press During the early 1990s,South Africans kept a close eye on the media coverage of South Africa's negotiated transition to democracy. Likened to a soap opera by some, the negotiations featured violent interlopers, dramatic walkouts, alliances and, somehow, a fortunate conclusion in the form of the Interim Constitution and Bill of Rights. The importance of the negotiating process and the Interim Constitution itself should not be underestimated, however, in relation to their longer-term influence over the form of democracy currently enjoyed in South Africa. In this brave publication, Spitz and Chaskalson examine the politics behind the Kempton Park negotiations and the Interim Constitution, and the influence that these have had on the subsequent consolidation of a South African democracy. This book will be of importance to anyone interested in South African politics, constitutional law, democracy and human rights. CONTENTS Introduction; 1. Transitions to democracy; 2. The collapse of CODESA and the return to the negotiating table; 3. The Kempton Park negotiations of 1993; Section A: Core Constitutional Issues; 4. The Technical Committee on Constitutional Issues; 5. Negotiating the process; 6. Constitutional principles; 7. Powers of the provinces; 8. Executive government; 9. Parliament and the Constitutional Assembly; 10. Local government; 11. The Constitutional Court; Section B: The COSAG parties; 12. Negotiations with the Inkatha Freedom Party and the Freedom Front; Section C: The Bill of Rights; 13. Background to the drafting of the Bill of Rights; 14. Operational provisions; 15. The equality clause; 16. Other basic rights; 17. The property clause and the question of redistribution of land; 18. Customary law and the issue of traditional leaders; Conclusion; 19. The longer-term influence of the negotiations on South Africa's democracy: The impact of the Interim Constitution on the final constitution. Contents Historical Background Introduction Codesa, Collapse, and Back to Kempton Park The Kempton Park Negotiations The Talks The Process Core Constitutional Issues The Technical Committee Negotiating the Transition Executive Government The Legislature The Powers of the Provinces Local Government The Constitutional Court The Concerned South Africans Group The COSAG Parties: Strange Bedfellows or Natural Partners? Drafting the Interim Bill of Rights Fundamental Human Rights: The Committees Operational Provisions The Equality Clause Property, Land and Housing Controversial Rights and Freedoms Uncontroversial Rights and Freedoms Traditional Law The Interim Bill of Rights Assessed Kempton Park and Beyond Conclusion Postscript: The Final Constitution and the Legacy of the Interim Constitution
This book,written by a team of academics, judges and distinguished practitioners from the UK and abroad discusses the implications of the incorporation of the ECHR into Scots law. The contributors consider the impact of the Human Rights Act in light of the new constitutional settlement for Scotland and their experiences of other rights regimes in Europe, the Commonwealth, and the United States. The contributions span the fields of Private, Public, European Community and Comparative law and draw on human rights law and practice in the UK, the European Community, Canada, New Zealand, South Africa, the United States and Sweden, where the ECHR was recently incorporated. Topics include: analyses of the Human Rights Act and Scotland Act; human rights and the law of crime, property, employment, family and private life; Scottish court practice and procedure; Scots law and the European dimension; and building a rights culture in Scotland.
Japan boasts the second largest economy in the world and almost two thousand years of history. Yet, its first modern constitution, the Meiji Constitution, was not enacted until comparatively recently (1889). Since then, following World War II, Japan adopted its current Constitution, the Japanese Constitution of 1946. This book is designed to explain the outline of Japan's Constitution, together with a number of its unique characteristics and to offer an historical background and context which help explain its significance. Major topics covered include the constitutional history of Japan, fundamental principles of the Constitution, the people and the Emperor, the Diet and legislative power, Cabinet and executive power, and the Judiciary and judicial power. Also discussed is the protection of fundamental human rights, individual rights - including freedom of expression,economic freedoms, and social rights - pacifism and national defence, and the constitutional amendment and reform. Although the Japanese Constitution was enacted under the strong influence of the United States Constitution, many of its features are very different. For instance the existence of an Emperor, the long dominance of a conservative party over the Government, the relatively strong power of government bureaucrats, the absence of a leadership role in the Prime Minister, the small role the judiciary play in solving constitutional disputes and the struggle over national defence. Written in an accessible style and comprehensive in content, the reader will find this account of the constitutional law of Japan both unique and stimulating.
Common law principles need to be re-evaluated in the light of the Human Rights Act for two reasons. First,to ascertain whether those principles comply with Convention standards as laid down in the ECHR and interpreted by the Strasbourg organs. Secondly, to determine the extent to which tort principles may be shaped to achieve this goal. In this book, the author pursues this objective by analysing the effect of the Act, including the issue of horizontality, and then evaluating and juxtaposing principles of tort law and ECHR jurisprudence in order to consider whether the approach of the English courts measures up to the European standard. Generally the ECHR does not prescribe how states should meet their treaty obligations and the book therefore considers, where appropriate, the possibility of remedies other than tort principles as a means of meeting the UK's obligations. Thus, the book examines whether the principles of tort law, considered in the light of other remedies, are likely to be the mechanisms for the implementation of human rights standards.
Federalism has becoming a chosen form of governance in diverse statess. It has been indicated now almost half of the world population lives in federal countries. Ethiopia has formally adopted a federal state structure upon the adoption of the 1995 FDRE Constitution. Though federal systems create two autonomous governments working parallel to each other, such division is not without limitation. particularly, the autnomy granted for the regional governments could be compromised in order to ensure the well being and healthy functioning of the whole federal system. The system of federal intervention is the main mechanism of dealing with such possibilities. This book will deal with the challenges and opportunities of the federal intervention law of the Federal Democratic Republic of Ethiopia from the perspective of the need for the protection and respect of human rights.