One of the main functions of legal systems is to provide remedies for violations (or sometimes expected violations) of the primary rights conferred on them. Thus, if someone is injured by the negligence of another, a claim for compensation usually arises. If he is killed, his family members may have an independent right to compensation, and so on. Other types of remedies may include those for court orders that require the offender to execute or refrain from taking a particular course of action, very often the one to which he was or was obliged under primary law to refrain from doing so. These rights are often very complex in detail. For example, the amount of damages may vary if the illegal act is a misdemeanor, as opposed to a breach of contract. Similarly, in many systems, some remedies must be granted by law, while others are at the discretion of the court. To illustrate the remedies available in both British legal systems, reference may be made to Lawson (1980) and Walker (1974). The Council of Europe`s main human rights instruments and mechanisms Many people will say that the poor human rights record in the world is due to the lack of adequate enforcement mechanisms. It is often up to States to decide whether to implement the recommendations. Whether individual or collective rights are effectively guaranteed depends in many cases on pressure from the international community and, to a large extent, on the work of NGOs.
This is a less than satisfactory situation, as it can be a long wait for a human rights violation to be effectively dealt with by the United Nations or the Council of Europe. Is there anything we can do to change that? First, it is essential to ensure that States guarantee human rights at the national level and to establish an appropriate mechanism to remedy violations. At the same time, pressure must be brought to bear on States to commit themselves to respecting the mechanisms that have enforcement procedures. Under older versions, such as those of Bentham and Austin, X is a rights holder because he is the intended beneficiary or beneficiary of someone else`s duty or perhaps the absence of an obligation that the law might otherwise have imposed on him. For example, if X is entitled to be paid £10 by Y, this is explained by saying that Y has a duty whose performance (remittance of £10) X should benefit. One problem with this theory is to explain why criminal law, while it may exist in part to protect moral rights, is generally not considered a direct transfer of legal rights to individual citizens, even if they are intended beneficiaries of the corresponding duties. (There may be parallel civil rights in many systems, of course, but this is a contingent issue. For more information on this point, see below.) The Office of the Commissioner for Human Rights of the Council of Europe was established in 1997. The aim of this independent institution is both to promote the concept of human rights and to ensure the effective respect and full enjoyment of these rights in Council of Europe member States. The Commissioner is elected by the Parliamentary Assembly for a non-renewable term of six years.
The Commissioner is an extrajudicial institution whose work must be seen as complementary to other Council of Europe institutions engaged in the promotion of human rights. The Commissioner shall exercise his functions independently and impartially, respecting the competence of the various supervisory bodies established by the European Convention on Human Rights or other Council of Europe human rights instruments. It goes without saying that the protection and understanding of human rights ultimately depends most on developments and mechanisms at the national level. National laws, policies, procedures and mechanisms are essential to the enjoyment of human rights in any country. It is therefore crucial that human rights be part of the national constitutional and legal system, that justice professionals be trained in the application of human rights standards and that human rights violations be condemned and punished. National standards have a more direct effect and national procedures are more accessible than those at the regional and international levels. As Eleanor Roosevelt noted, regional human rights standards often exceed and reinforce UN standards [22] Examples of “what not to do in a competing legal scenario”: (1) treat a right as absolute; (2) in respect of any right that is inherently superior to another; (3) the acceptance of a hierarchy of rights; and (4) to approach the law in the abstract or in a de facto vacuum. A personal right refers to a person`s life, that is, his reputation or prestige in society. These rights promote a person`s well-being in society and have no economic value. Example: Right to life. In addition to the recognition of the fundamental rights of individuals, some human rights instruments recognize the rights of certain groups.
These special protection measures exist because of previous cases of discrimination against groups and the disadvantaged and vulnerable position that certain groups occupy in society. The special protection does not provide for new human rights as such, but aims to ensure that the human rights of the UDHR are effectively accessible to all. It is therefore wrong to claim that persons from minorities have more rights than persons from majorities; If there are special rights for minorities, it is only to guarantee them equal opportunities in terms of access to civil, political, social, economic or cultural rights. Examples of groups that have benefited from special protection include: Thus, all fundamental rights, i.e. the right to equality, the right to religion, etc. are perfect rights because they are legally enforceable. Dworkin (1973, 1975, 1981, 1986) was a proponent of the first point of view in a formulation of his theory of rights. As a result, rights take precedence over any other consideration that is not itself based on the law. It is clear that, for many legal systems, constitutional rights, or some of them, should take precedence over any other consideration that does not flow from a constitutional right. But this seems to be mainly due to the constitutional status of the right. In both law and morality, many rights are rather trivial in nature. In moral terms, these rights can sometimes even be rightly compensated by considerations of personal convenience (cf.
Raz 1978). Similarly, it appears that many rights may, prima facie, be annulled by what the Court considers to be considerations of general interest. Dworkin`s (1977) response to the latter type of criticism has been to argue that, on closer inspection, the consideration directed against the law can itself be seen as an instantiation of another general law. However, this depends on the contentious assertion that the only considerations on which the courts can legitimately rely are pre-existing rights. It was also objected that, as a general theory of the nature of rights, it risked being self-destructive, since any consideration whatsoever could be considered to be based on law, leaving no particular role for the law in practical reasoning. (For a discussion of Dworkin`s theory, including its other formulations, see Yowell 2007.) Everyone has the right to express opinions, to follow a religion and to change faith. This applies both to individual practice and within a community. The law also protects a person`s right to “seek, receive and share information and ideas through all media.” In many countries, “freedom of expression” or “freedom of expression” is considered the most important right. What counts as “protected speech” is often discussed.
Complaints against a State are brought before a commission or committee in a procedure generally referred to as a court-type procedure. The regulator then makes a decision and states are expected to abide by it, even if there is no enforcement process. Often, a State must make an additional declaration or ratify an optional protocol to signal its acceptance of the complaints system. The Human Rights Committee (or “Committee of the International Covenant on Civil and Political Rights”) and the Committee on the Elimination of Racial Discrimination (within the United Nations system) and the Inter-American Commission on Human Rights (within the Organization of American States) are examples of bodies dealing with such complaints.