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Under the influence of the global spread of human rights, legal disputes are increasingly framed in human rights terms. Parties to a legal dispute can often invoke human rights norms in support of their competing claims. Yet, when confronted with cases in which human rights conflict, judges face a dilemma. They have to make difficult choices between superior norms that deserve equal respect. In this high-level book, the author sets out how judges the world over could resolve conflicts between human rights. He presents an innovative legal theoretical account of such conflicts, questioning the relevance of the influential proportionality test to their resolution. Instead, the author develops a novel resolution framework, specifically designed to tackle human rights conflicts. The book combines concerted normative theory with profound practical analysis, firmly rooting its theoretical arguments in human rights practice. Although the analysis draws primarily on the case law of the European Court of Human Rights, the book’s core arguments are applicable to judicial practice in general. As such, the book should be of great interest to academics, postgraduate students and legal practitioners in Europe and beyond. The book is particularly suited for use in advanced courses on legal theory, human rights law and jurisprudence.
Underlying the protection of human rights in Europe is a complex network of overlapping legal systems - domestic, EU, and ECHR. This book focuses on the potential for conflict to emerge between the systems where rights overlap and interpretations in different courts begin to diverge. From the perspective of EU law, where the interpretation of rights differs national courts are asked to renounce the constitutional scope of protection in favour of the scope defined by the European Court of Justice. This work presents a theory of supranational judicial authority to confront this problem, grounded in an ideal of judicial dialogue. It represents the first attempt to provide a thorough theoretical account of the value of judicial dialogue, and its potential for legitimating judicial decision-making at a supranational level. Combining theoretical rigour with attention to the practicalities of European human rights law, the book will be accessible to a broad readership of legal theorists, EU lawyers and judges involved in building inter-judicial dialogue.
This book examines two moral theories of rights justification and applies them to four social issues: redistributive taxation, affirmative action, pornography, and abortion. It assesses the ethical status of several candidate social policies that continue to be debated in the public arenas.
Resolving Conflicts in the Law, edited by Chiara Giorgetti and Natalie Klein, honours the significant intellectual contribution of Professor Lea Brilmayer with essays from leading scholars and practitioners on conflicts of law and public international law.
A richly textured account of the making, implementing, and changing of international legal regimes, which encompasses law, politics and economics.
This book examines two moral theories of rights justification and applies them to four social issues: redistributive taxation, affirmative action, pornography, and abortion. It assesses the ethical status of several candidate social policies that continue to be debated in the public arenas.
"Armed Conflicts and the Law is a book of impressive scope and depth. Ranging deftly across the spectrum of armed conflict and the law that governs it, this impressive work draws together new voices and world-renowned experts from the academy, military and the ICRC to examine the normative nuances of contemporary conflict. At the same time both scholarly and practical, Armed Conflicts and the Law will prove an invaluable resource for anyone dealing with the complex, synergistic, and evolving relationship between law and armed conflict." --Prof. Michael N. Schmitt, Director, Stockton Center for the Study of International Law, U.S. Naval War College *** This book offers a comprehensive yet concise take on the legal regulation of the various phases in the complex cycle of armed conflicts, from prevention to reconstruction, and covering everything in between, in particular, the vast body of rules laid down in current international humanitarian law. It combines a general theoretical approach with modern practice in order to offer a complete picture of the law before, during, and after warfare. Through a series of thematic chapters that logically follow from one to another, the book tackles core issues relating to the international regulation of armed conflicts, while situating them in a broader societal context. Particular attention is given to the emergence of the European Union as an increasingly important regional and global player in international peace and security. In combination with the broad scope and accessible nature of volume, the experience and ambition on display makes it a unique reference tool for students, scholars, practitioners, civil servants, diplomats, and humanitarian/human rights workers around the globe. It is complemented by, and a helpful companion to, Jan Wouters's and Philip De Man's Humanitarian and Security Law: A Compendium of International and European Instruments ISBN 978 1 78068 051 4 (2012)]. (Series: International Law - Vol. 17) Subject: International Law, EU Law, Humanitarian Law]
A comprehensive analysis of the legal challenges and practical consequences of applying international human rights law in armed conflict situations.
Powerful emotion and pursuit of self-interest have many times led people to break the law with the belief that they are doing so with sound moral reasons. This study is a comprehensive philosophical and legal analysis of the gray area in which the foundations of law and morality clash. In examining the extent of the obligations owed by citizens to their government, Greenawalt concentrates on the possible existence of a single source of obligation that reaches all citizens and all laws.
The notion of conflict rests at the heart of the judicial function. Judges are routinely asked to resolve disputes and defuse tensions. Yet, when judges are called upon to adjudicate a purported conflict between human rights, they face particular challenges and must address specific questions. Some of these concern the very existence of human rights conflicts. Can human rights really conflict with one another, in terms of mutual incompatibility? Or should human rights be interpreted in harmony with one another? Other questions concern the resolution of real conflicts. To the extent that human rights do conflict, how should these conflicts be resolved? To what extent is balancing desirable? And if it is desirable, which understanding of balancing should judges employ? This book seeks to provide both theoretical and practical answers to these questions. When Human Rights Clash at the European Court of Human Rights: Conflict or Harmony? debates both the existence and resolution of human rights conflicts, in the specific context of the case law of the European Court of Human Rights. The contributors put forth principled and pragmatic arguments and propose theoretical as well as practical approaches, whilst firmly embedding their proposals in the case law of the European Court. Doing so, this book provides concrete ways forward in the ongoing debate on conflicts of rights at Europe's human rights court.