Abstract
The chapter examines the main theoretical foundations of human rights, namely the natural law theories, the theory of social consent, the positivist theories and the Marxist-inspired theories. Particular attention is then paid to the general characteristics of human rights and thus to the universality, indivisibility and inalienability of human rights, whose practical importance is ultimately greater than the theoretical underpinnings of human rights. On the one hand, the discussion centres on cases of judicial dialogue—both between national courts and between national and international courts—aimed at ensuring a uniform application of human rights. On the other, it focuses on instances of conflicting case law and lack of coordination arising from multiculturalism, relativism and opposing cultural views, highlighting possible solutions flowing from national and international jurisprudence.
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Notes
- 1.
ICJ 1966.
- 2.
Id., p. 297.
- 3.
See para 162 of the judgment.
- 4.
On the derogation clauses regarding the human rights treaties, see Chap. 3, Sect. 3.9.
- 5.
- 6.
- 7.
One example is the serious forms of racial or sexual discrimination that have found their way into national law in the past and to a lesser extent even recently.
- 8.
In the opinion, having stressed that “member States are under obligation to abstain from entering into treaty relations with South Africa in all cases in which the Government of South Africa purports to act on behalf of or concerning Namibia”, the Court added that “the same rule cannot be applied to certain general conventions such as those of a humanitarian character, the non-performance of which may adversely affect the people of Namibia”: in ICJ 1971, p. 55, para 122.
- 9.
On this issue, see Chap. 3, Sect. 3.9.
- 10.
See para 8 of the Declaration.
- 11.
On this issue, see Chap. 6, Sect. 6.2.4.
- 12.
See Special appeal against the ruling that dismissed the appeal filed against the ruling on the division of estate, paragraph 3(3)(C) of the English translation of the judgment available online at www.courts.go.jp/app/hanrei_en/detail?id=1203.
- 13.
See Navtej Singh Johar & Ors. v. Union of India, Thr. Secretary, Ministry of Law and Justice, paras 150–153, in which reference is made to the Universal Declaration of Human Rights of 10 December 1948 (“UDHR”), the ICCPR and the ECHR.
- 14.
See the case Her Majesty The Queen and Attorney General of Quebec v. Alexandre Bissonnette, in particular para 104.
- 15.
- 16.
See para 144 of the judgment.
- 17.
See para 141 of the judgment.
- 18.
See Recommendation No. 3.1.5.6.
- 19.
See Chap. 9, Sect. 9.1.3.
- 20.
On these issues, see Chap. 3, Sect. 3.9.
- 21.
See Article 1.
- 22.
See para 28.
- 23.
On the establishment and powers of this Committee, see Chap. 5, Sect. 5.2.2.
- 24.
See para 64.
- 25.
A/RES/67/146.
- 26.
See Article 3(3) of the Charter.
- 27.
See para 44 of the judgment.
- 28.
Id., paras 50 ff.
- 29.
See para 2.3 of the conclusions on points of law of the judgment.
- 30.
See Chap. 6, Sect. 6.1.
- 31.
- 32.
See supra, Sect. 2.4.
- 33.
On this issue, see Chap. 13, Sect. 13.4.1.
References
ICJ (1966) ICJ Reports (Second Phase), Ethiopia v. South Africa, Liberia v. South Africa
ICJ (1971) Advisory opinion of 21 June 1971 on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970). ICJ Reports
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Pustorino, P. (2023). Theoretical Foundations and General Characteristics of Human Rights. In: Introduction to International Human Rights Law. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-563-8_2
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DOI: https://doi.org/10.1007/978-94-6265-563-8_2
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