Access to Justice as a Human Right (Collected Courses of the Academy of European Law)

Access to Justice as a Human Right (Collected Courses of the Academy of European Law)

Language: English

Pages: 300

ISBN: 0199233098

Format: PDF / Kindle (mobi) / ePub

In international law, as in any other legal system, respect and protection of human rights can be guaranteed only by the availability of effective judicial remedies. When a right is violated or damage is caused, access to justice is of fundamental importance for the injured individual and it is an essential component of the rule of law. Yet, access to justice as a human right remains problematic in international law. First, because individual access to international justice remains exceptional and based on specific treaty arrangements, rather than on general principles of international law; second, because even when such right is guaranteed as a matter of treaty obligation, other norms or doctrines of international law may effectively impede its exercise, as in the case of sovereign immunity or non reviewability of UN Security Council measures directly affecting individuals. Further, even access to domestic legal remedies is suffering because of the constraints put by security threats, such as terrorism, on the full protection of freedom and human rights.

This collection of essays offers seven distinct perspectives on the present status of access to justice: its development in customary international law, the stress put on it in times of emergency, its problematic exercise in the case of violations of the law of war, its application to torture victims, its development in the case law of the UN Human Rights Committee and of the European Court of Human Rights, its application to the emerging field of environmental justice, and finally access to justice as part of fundamental rights in European law.

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cautio indicatum solvi has definitively disappeared. Remnants of the old practice occasionally re-emerge, especially in the law on the treatment of foreign investments. A case in point is provided by the recent Loewen litigation40concerning a Canadian investor in the United States who, as a condition for appealing and obtaining a stay of an adverse judgment in the state of Mississippi, had been required to post the exorbitant bond of over US$500 million, which the claimant had been unable to pay.

integration that fifty years later would be followed, with more lasting and conspicuous achievement, by the European Communities and the Court of Justice which, under certain conditions, is open to claims by individuals and private parties. Other early examples of direct access by individuals to international remedial mechanisms are provided by the International Prize Court, contemplated by the Hague Convention XII of 1907, and by the practice of the mixed arbitral tribunals established to

communication to the Committee.’88 Given this terminological variance, it is not always clear whether reference is made to the right to bring a claim before a competent court, or rather to the right to have a measure or remedy provided in connection with an injury suffered by the claimant. The latter interpretation goes well beyond the mere right of access to justice and implies the right to obtain reparation in one form or another as a consequence of a certain harm suffered in connection with

Northern Ireland. All four were held in detention centres for periods ranging from four to six days. None was brought before a judicial officer in that period. All were subsequently released without criminal charge. At the heart of this case was a dispute about the right of the four detained persons to have a right of access to judicial remedy to review the merits of their detention. Importantly, Brogan is formally not a derogation case. The United Kingdom had in fact withdrawn a previously

under Article 2. Exceptions are listed in paragraph 2 of the same provision. As far as belligerency is concerned, the relevant provision is paragraph 2 of Article 15, which does not allow for any derogation from Article 2, except in the case of ‘death resulting from lawful acts of war’. In order to bring humanitarian law into force, it is not necessary to set the procedure under paragraph 1 of Article 15 in motion. The exception ‘lawful acts of war’ should be added to those listed in paragraph 2

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