The significance of the margin of appreciation doctrine has been underscored recently with the adoption of Protocol No 15 which calls for the inclusion of the terms 'margin of appreciation' and 'subsidiarity' in the Preamble of the European Convention on Human Rights. This development reflects the disquiet amongst member States to the Convention that the doctrine is not being given enough weight by the European Court of Human Rights in the determination of cases before it. One of the interpretive tools that is perceived to be having a negative effect on the margin of appreciation is the living instrument doctrine which has been blamed for narrowing the margin of appreciation afforded to States. This thesis brings an original contribution to the literature in this area by considering the interaction between the margin of appreciation and living instrument doctrines in the case law of the Court. The contribution is achieved in two ways: (a) methodologically: through the methodology adopted which is a combination of the quantitative method of descriptive statistics and the qualitative method of doctrinal textual analysis; (b) substantively: through the systematic examination of the case law of the Court from January 1979 to December 2016 in which both the margin of appreciation and living instrument doctrines are present. The lens of the relationship between rights and duties is applied to the case analysis. The case analysis is used to draw conclusions on the nature of the relationship and whether living instrument arguments are superseding the margin of appreciation doctrine where there is conflict. The results of the case analysis also shows distinctions in the interpretive approaches of the Court at the admissibility and compliance stages. The overall results of the study show that there are a variety of ways in which interaction takes place between both doctrines and the nature of both doctrines will continue to require a close interaction between the Court and the State parties in their compliance with obligations under the Convention.

Originally presented as the author's dissertation (doctoral)--Freiburg/Schweiz, 2007. / Includes bibliographical references (p. 224-258).

Chapter one offers an introduction and a general outline of argument. Chapter two lays out the current scholarship on human rights and the environment and presents rejoinders to three prominent lines of objection to linking human rights and environmental interests: conceptual, those arising from issues of recognition, vagueness and conflicts between human rights, ecological, especially from those seeking protections for the environment regardless of its utility to humans, and those wishing to expand human rights beyond human interests, and adjudication concerns, namely from those sceptical that the polycentric nature of environmental issues create an insurmountable barrier to any significant improvements through judicially enforced human rights. Chapter three introduces and defends the environmental minimum as a normative framework for systematically conceptualizing the relationship between human rights and the environment. As such, it is chiefly concerned with ensuring a good faith regulatory engagement with environmental pollution: specific risks to recognised human rights trigger the environmental minimum, which then provides minimum standards (legal, established and emerging) that set the standard of review for determining whether a violation of human rights has occurred. Chapter four deals with the crucial empirical argument, outlining how the framework can systematically account for and consistently guide the further development of the case law under the European Convention on Human Rights. This conclusion rests on a comprehensive analysis of the environmental case law since 1950 using quantitative methods to expose doctrinal patterns previously not recognized in legal scholarship. Finally, chapter five explores and evaluates the potential benefits of the environmental minimum framework beyond human rights adjudication. Specifically, it investigates benefits to the varied fields of public law, regulatory policy, International Environmental Law, constitutionalism, and other international human rights treaties.

"The domestic courts have not been able to enforce international human rights in Mozambique and there are no institutions to address the concerns of victims of human rights abuses. A limited number of NGO's operating in the field of human rights play a role, which is not significant considering the number. Several factors, for example, the lack of knowledge of international human rights instruments by the people in charge of administration of justice such as judges, prosecutors, or even lawyers and legal assistants, may explain this. The present paper is an attempt to explore why the international human rights norms are not enforced in the Mozambican legal system; this will be done in a comparison with the situation [in] Ghana. ... This paper is structured in five chapters. Chapter one is the introductory chapter, it essentially introduces the topic, discusses the manner in which the research will be caried out, namely the methodological approach used, literature review, objectives of the study and its limitations, [and] last but not least, it outlines the research questions and the hypothesis. Chapter two gives the definitions of the main concepts used in this paper; it goes further in discussing the relationship between national law and international law focusing [on] the theories of monism and dualism. It also analyses the constitutional provisions dealing with international law in the Mozambican and Ghanaian legal order in the light of the monist and dualist theories. Chapter three discusses the sources of international human rights law and their implications [for] the enforcement of internationl human rights law in domestic courts. It goes further by discussing the principles governing domestic applicability of international human rights law and finally discusses the obstacles to the enforcement. Chapter four is the case study of this paper: it analyses how international human rights law is enforced by domestic courts in Mozambique and Ghana and several other aspects around the judiciary and the international human rights law training. Chapter five finally draws conclusions and gives recommendations on what should be done to ensure the enforcement of international human rights law in domestic courts." -- Introduction. / Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2005. / Prepared under the supervision of Professor Kofi Quashigah at the Faculty of Law, University of Ghana / http://www.chr.up.ac.za/academic_pro/llm1/dissertations.html / Centre for Human Rights / LLM

Published Article / Members of society are fast becoming aware of their rights and many practitioners are at risk of losing their licence to practise due to unethical practices. The growing human rights violations commonly seen in vulnerable groups also pose challenges to healthcare workers, such as diagnostic radiographers, who often find themselves in situations where they have to disobey the laws to uphold ethical standards. This paper is a presentation of how ethics, human rights and medical law has been integrated into the undergraduate diagnostic radiography curriculum, and can be applied to other healthcare professions. To alleviate resistance to human rights teachings, I recommend the use of real life examples that are less sensitive 'politically' but true in order to gain the attention and cooperation of the diverse culture of the students.

Text in Afrikaans / In die post-koloniale tydsgewrig was die menseregte-situasie en bestaansomgewing van talle Afrikane die van konflik, korrupsie, onderdrukking, sosiale ongeregtigheid en menseslagting. As kontinentale eenheidsorganisasie het die OAE jare lank in gebreke gebly om die lot van mense in sy ledestate te verbeter. Eers teen die laat-sewentigerjare het die organisasie - hoofsaaklik as gevolg van internasionale druk - begin om werklik aan menseregte aandag te skenk. Die kulminasie hiervan was die Banjoel-handves vir menseregte in 1981. Dit is egter bekend dat die gebeure geen wesenlike verbetering en vordering in die menseregte-gesteldheid in Afrika teweeg gebring het nie. Teen hierdie agtergrond is gepoog om die geskiedenis van menseregte in Afrika en die OAE se rol hieromtrent te ontleed. Samehangend is ondersoek gedoen na die noodsaaklike elemente vir 'n menseregtebedeling op die kontinent - soos dit in der waarheid in die Banjoel-handves ten doel gestel is. Die belangrikste bevindings is onder meer dat * 'n botsing tussen pan-nasionale en nasionale belange in die OAE deurgaans ten diepste veroorsaak het dat die organisasie in gebreke was om die lot van talle Afrikane te verbeter; * die politieke bedelings en "regskultuur" van die afsonderlike Afrika-state tot dusver verhoed het dat die menseregte van die Banjoel-handves sinvol toegepas word; * indien die OAE sy menseregte-standaarde toegepas wil sien, die Afrika-leiers in afsonderlike verband eers daarmee erns moet maak; * gemeenskaplik aanvaarde politieke bedelings en legitieme regerings in Afrika voorwaardelik is vir die verwerkliking van die ideaal van 'n menseregte-bedeling op die kontinent. Sedert die negentigerjare is daar egter tekens wat hoop bied op 'n verbetering in die menseregte-situasie in Afrika. Dit geld veral vir die demokratisering van etlike state en die werksaamhede van die OAE se Menseregte-kommissie. Weens verskeie redes sal die organisasie se taak ten opsigte van menseregte vorentoe egter nie maklik wees nie. Die hoop beskaam egter nie dat die OAE, hoe gering ook al, 'n bydrae kan !ewer om die bestaansomgewing van talle Afrikane te verbeter - mits 'n groter realisme daaroor in die afsonderlike ledestate posvat. / In the post-colonial era the human rights situation of many Africans was one of conflict, repression, social injustice and bloodshed. For years the OAU failed to improve the lot of people in its member states. It was only during the late seventies that the OAU - mainly as a result of international pressure - began to pay attention to the principles of human rights. The culmination of this was the Banjul Charter of human rights in 1981. This brought about no real progress or improvement in the human rights situation in Africa, however. Against this background an attempt has been made to analyse the history of human rights in Africa and the role of the OAU in this regard. At the same time the essential elements of a human rights dispensation on this continent - as it has in fact been envisaged by the OAU - have been investigated. The most important findings include the following: * a clash between pan-national and national interests in the OAU was a fundamental reason why this organisation failed to improve the lot of Africans; * the political dispensations and "legal culture" of the African states have thus far prevented the meaningful application of the Banjul charter; * if the OAU wishes to see its human rights standards applied, the African leaders will first have to make serious attempts to do this separately and individually; * commonly accepted political dispensations and legitimate governments will have to be established in the OAU member states before the ideal of a human rights dispensation can become a reality in Africa. Since the nineties there have, however, been signs offering hope for an improvement in the human rights situation in Africa. This applies in particular to the democratisation of numerous states and the activities of the OAU's Human Rights Commission. For various reasons the future task of this organisation in regard to human rights will not be easy. There is hope, however, that the OAU will be able to make some contribution, however slight, to improving the environment of many Africans - provided a greater realism about this matter sets in the respective member states. / Political Sciences / D. Litt. et Phil. (Internasionale Politiek)

Human rights violations are becoming a matter of growing concern in areas where extractive industry development is occurring. The problem is especially acute in the Global South, particularly in Latin America where there has been a mining boom occurring since the late 1990s, and is leading to escalating conflicts between mines and the communities hosting them. Corporate social responsibility (CSR) has become an increasingly applied norm in the extractive industry in recent years as companies have faced growing criticisms regarding human rights violations. The thesis will examine one tool of CSR – a human rights impact assessment (HRIA) and examine the effectiveness of the HRIA conducted by Goldcorp to address the communities’ allegations of human rights violations at its Marlin mine in Guatemala.

No description available.

This study has aimed at examining the nature and function of the support and protection that is offered and provided to human rights defenders trough a selected few international as well as regional human rights instruments and mechanisms, among them the Declaration on Human Rights Defenders, the EU Guidelines on Human Rights Defenders as well as the Inter-American Commission on Human Rights and the Inter-American Court on Human Rights. In order to conduct such a study in a fairly limited and concrete way a number of cases were selected of human rights defenders who have undergone or are currently undergoing criminal prosecution and are incarcerated in Guatemala. The selection was based on the notion that apart from murder, criminal prosecution and incarceration of human rights defenders constitutes one of the most harmful and effective ways to actively hinder the continuance of valuable human rights work. Consequently, it impedes the promotion, implementation and protection of human rights on a general level. In regards to this States such as Guatemala have found ways to circumvent their international human rights duties by allowing others or themselves to label human rights defenders as criminal and violent actors, thus taking away the legitimate aspect of their roles and functions when it comes to promoting and safeguarding the enjoyment and exercise of human rights. The examined cases were meant to shed light on the situation for defenders in Guatemala but most importantly they were meant to illustrate a context in which one can examine the role and function that international human rights instruments and mechanisms have to combat such types of situations. The study found that although the concerned instruments and mechanisms such as the Declaration on Human Rights Defenders, the EU-guidelines on Human Rights Defenders, the Inter-American Commission on Human Rights and the Inter-American Court on Human Rights have a positive, important and impacting role in providing support to human rights defenders they have not yet reached/obtained the function of preventing persecution of human rights defenders, most notably of the legal kind. Since these mechanisms can only recommend but not force States to recognize and treat advocates of rights as “human rights defenders” their role and function for this specific purpose becomes less effective. All is not negative however, and the instruments and mechanisms that exist today are an illustration of the ambitions of States to follow international human rights principles and standards, at least to some extent.

This thesis sets out an argument against the present interpretation of the concept of autonomy under the European Court of Human Rights (the ECtHR) Article 8 jurisprudence and proposes a new reading of the concept that is rooted in an acknowledgment and appreciation of human interdependence. Following the prevailing political, legal and socio-cultural ideas and ideals about autonomy, the ECtHR has chosen to furnish its recent Article 8 case law according to the values characteristic of the notion of individual autonomy – independence, selfsufficiency, and the ability to conduct one’s life in a manner of one’s own choosing. Adopting this individualistic view on autonomy, the ECtHR sets normative standards for behaviour that the thesis challenges as being detrimental for the quality of interpersonal relationships. The work draws on sociological theory to argue that in modern individualised societies people are increasingly tied to each other – one has to be socially sensitive and to be able to relate to others and to obligate oneself, in order to manage and organise the complexities of everyday life. This also means that there are attendant obligations between individuals to be sensitive towards, and care for, each other. It is argued that an effective exercise of one’s autonomy becomes necessarily dependent on the existence of caring and trusting relationships. This in turn requires the ECtHR to adopt an appropriate conceptualisation of autonomy that embraces this knowledge and gives full effect to it. The concept of caring autonomy is proposed as a replacement for an individualistic concept of autonomy. It will be argued that this concept captures better the essentiality of human interdependence and the morality it calls for. The implications of this for the future direction of the ECtHR jurisprudence are also considered.