The Burden Of Proof In Comparative And International Human Rights Law
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The Burden Of Proof In Comparative And International Human Rights Law
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Author : Juliane Kokott
language : en
Publisher: BRILL
Release Date : 2023-12-28
The Burden Of Proof In Comparative And International Human Rights Law written by Juliane Kokott and has been published by BRILL this book supported file pdf, txt, epub, kindle and other format this book has been release on 2023-12-28 with Law categories.
This book explores how courts decide, or ought to decide, in situations of uncertainty. A Court must always decide the case before it, even if the relevant facts remain unclear. The question then arises which party benefits and which party is burdened by that uncertainty. In these cases, the Court must apply the rules on the burden of proof or, more precisely, the burden of persuasion. Their importance for the individual claimant is obvious. The comparison of two domestic systems (one based on common law and the other a traditional code-based legal order) with regard to the issue of burden of proof helps to clarify the terminology and lays the ground for dealing with the burden of proof in international human rights law. Without knowing what can be understood by the term `burden of proof' under domestic law, international lawyers with different domestic law backgrounds are in danger of misunderstanding each other. This may lead to obscuring the problems connected with court decisions involving uncertainty. The study also deals with uncertainties with regard to legislative (general) in contrast to adjudicative (individual) facts and with uncertainties in the framework of predictions in contrast to uncertainties relating to historic facts. It attempts to prepare the ground for dealing more consciously and more consistently with problems of uncertainty in international human rights law. International courts, due to their geographical and cultural distance from the case, usually have less access to the underlying facts. Nevertheless, in order to protect human rights effectively, international courts and tribunals cannot always restrict themselves to reviewing the law, but may also have to decide on the facts. Thus issues relating to decision-making on the basis of uncertain facts, including the burden of persuasion, are even more important in international than in domestic human rights law.
The Exclusionary Rule Of Evidence
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Author : Kuo-hsing Hsieh
language : en
Publisher: Routledge
Release Date : 2016-03-16
The Exclusionary Rule Of Evidence written by Kuo-hsing Hsieh and has been published by Routledge this book supported file pdf, txt, epub, kindle and other format this book has been release on 2016-03-16 with Law categories.
This groundbreaking monograph asserts the need for the establishment of an exclusionary rule of evidence in China as a means of protecting the people from police wrongdoing. The author skilfully explores the foundations and developments of the exclusionary rule in the UK and USA, assessing the rule from a comparative perspective and illuminating some issues that may arise in transferring the rule from one legal system to another. Divided into two parts, the first part discusses lessons from the past, and provides an in-depth examination of the development of the exclusionary rule in the UK and USA, covering rationales, debates and the theoretical foundation of the exclusionary rule in the constitutional context. The second part looks to the future and the establishment of a Chinese exclusionary rule. Specifically, it analyses the effects of police torture, the passive attitude of judges and the need to establish such a rule in practice for future protection of human rights. The author’s experience in criminal law and procedure allow him to adroitly analyse crucial issues on both theoretical and practical level that is understandable to those working in the areas of human rights, comparative criminal procedure, and the Chinese legal system.
The Procedural Law Governing Facts And Evidence In International Human Rights Proceedings
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Author : Torsten Stirner
language : en
Publisher: Martinus Nijhoff Publishers
Release Date : 2021-07-15
The Procedural Law Governing Facts And Evidence In International Human Rights Proceedings written by Torsten Stirner and has been published by Martinus Nijhoff Publishers this book supported file pdf, txt, epub, kindle and other format this book has been release on 2021-07-15 with Law categories.
This book provides a comparative assessment of the procedural law governing facts and evidence with references to over 900 judgments and decisions of the European and the Inter-American Court of Human Rights as well as the UN Human Rights Committee. It identifies underlying principles which govern the procedural law of these international human rights institutions. Based on the premise of a contextualized procedural law governing facts and evidence, the book analyzes where current approaches lack a foundation in the contextualization premise and offers solutions for recurring procedural problems relating to questions of subsidiarity in fact-finding, burden and standard of proof, as well as the admissibility and evaluation of evidence.
The Exclusionary Rule Of Evidence
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Author : Kuo-hsing Hsieh
language : en
Publisher: Routledge
Release Date : 2016-03-16
The Exclusionary Rule Of Evidence written by Kuo-hsing Hsieh and has been published by Routledge this book supported file pdf, txt, epub, kindle and other format this book has been release on 2016-03-16 with Law categories.
This groundbreaking monograph asserts the need for the establishment of an exclusionary rule of evidence in China as a means of protecting the people from police wrongdoing. The author skilfully explores the foundations and developments of the exclusionary rule in the UK and USA, assessing the rule from a comparative perspective and illuminating some issues that may arise in transferring the rule from one legal system to another. Divided into two parts, the first part discusses lessons from the past, and provides an in-depth examination of the development of the exclusionary rule in the UK and USA, covering rationales, debates and the theoretical foundation of the exclusionary rule in the constitutional context. The second part looks to the future and the establishment of a Chinese exclusionary rule. Specifically, it analyses the effects of police torture, the passive attitude of judges and the need to establish such a rule in practice for future protection of human rights. The author’s experience in criminal law and procedure allow him to adroitly analyse crucial issues on both theoretical and practical level that is understandable to those working in the areas of human rights, comparative criminal procedure, and the Chinese legal system.
Comparative Human Rights Law
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Author : Sandra Fredman
language : en
Publisher: Oxford University Press, USA
Release Date : 2018
Comparative Human Rights Law written by Sandra Fredman and has been published by Oxford University Press, USA this book supported file pdf, txt, epub, kindle and other format this book has been release on 2018 with Civil rights categories.
Courts in different jurisdictions face similar human rights questions. Does the death penalty breach human rights? Does freedom of speech include racist speech? Is there a right to health? This book uses the prism of comparative law to examine the fascinating ways in which these difficult questions are decided. On the one hand, the shared language of human rights suggests that there should be similar solutions to comparable problems. On the other hand, there are important differences. Constitutional texts are worded differently; courts have differing relationships with the legislature; and there are divergences in socio-economic development, politics, and history. Nevertheless, there is a growing transnational conversation between courts, with cases in one jurisdiction being cited in others. Part I sets out the cross-cutting themes which shape the ways judges respond to challenging human rights issues. It examines when it is legitimate to refer to foreign materials; how universality and cultural relativity are balanced in human rights law; the appropriate role of courts in adjudicating human rights in a democracy; and the principles judges use to interpret human rights texts. The book is unusual in transcending the distinction between socio-economic rights and civil and political rights. Part II applies these cross-cutting themes to comparing human rights law in the US, UK, South Africa, Canada, and India. Its focus is on seven particularly challenging issues: the death penalty, abortion, housing, health, speech, education and religion, with the aim of inspiring further comparative examination of other pressing human rights issues.
The Jurisprudence Of Human Rights Law
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Author : Theodore S. Orlin
language : en
Publisher: Abo Akademi University
Release Date : 2000-05
The Jurisprudence Of Human Rights Law written by Theodore S. Orlin and has been published by Abo Akademi University this book supported file pdf, txt, epub, kindle and other format this book has been release on 2000-05 with Law categories.
1. Introduction, Theodore S. Orlin and Martin Scheinin
Human Rights In Asia
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Author :
language : en
Publisher:
Release Date : 2005
Human Rights In Asia written by and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2005 with Civil rights categories.
International Human Rights Law And Practice
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Author : Ilias Bantekas
language : en
Publisher: Cambridge University Press
Release Date : 2013-04-25
International Human Rights Law And Practice written by Ilias Bantekas and has been published by Cambridge University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2013-04-25 with Political Science categories.
Human rights law is a complex but compelling subject that fascinates students but also confuses them. This innovative textbook explores human rights law from a theoretical and practical perspective. Case studies and interviews with specialist practitioners, NGO activists and policy-makers show how theory is applied in real life. The up-to-date coverage includes introductions to important emerging fields such as globalisation, poverty and advocacy. Student learning is supported by questions to stimulate seminar discussion and further reading sections that encourage independent study. The authors' combined expertise, engaging writing style and ability to clarify not simplify ensures that this important new book will become required reading for all students of human rights law.
International Human Rights Law And Practice
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Author : Francisco Forrest Martin
language : en
Publisher:
Release Date : 1997-01-01
International Human Rights Law And Practice written by Francisco Forrest Martin and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 1997-01-01 with Political Science categories.
International Human Rights Law & Practice: Cases, Treaties and Materials integrates the law of international tribunals and provides a comparative analysis of this jurisprudence with US and foreign law. Developed as a practitioner's deskbook, it presents extracts from cases frequently unavailable in law libraries for use in pleadings. Civil rights and criminal defense attorneys will discover that international law affords more protection to their clients than local law. Because customary international law is binding on many domestic courts, international law governing--e.g., gay/lesbian rights, racial discrimination, immigrants' rights, use of force, workers' rights, and the death penalty--is indispensable to US civil rights and criminal defense attorneys facing unfavorable domestic law. The book is supported by a documentary supplement volume which includes the full text of all relevant treaties, conventions, procedural rules, case flow charts and model pleadings. Together, these two volumes provide a complete resource for attorneys and professors desiring to become active in the international human rights field.
Positive Obligations Under The European Convention On Human Rights
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Author : Vladislava Stoyanova
language : en
Publisher: Oxford University Press
Release Date : 2023-09-05
Positive Obligations Under The European Convention On Human Rights written by Vladislava Stoyanova and has been published by Oxford University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2023-09-05 with Political Science categories.
It is beyond question that States have positive obligations under the European Convention on Human Rights (ECHR) to prevent harm. A State can be found in breach of the ECHR when it should have protected persons from harm or risk. However, given the difficulties of determining and delimiting the role of the State, the conditions under which positive obligations may apply have been unclear. The search for balance between intrusion and restraint by the State - between protection and freedom from interference - further complicates questions of state responsibility. Vladislava Stoyanova directly addresses these challenges in Positive Obligations under the European Convention on Human Rights. By systematising the case law of the European Court of Human Rights, the book provides key insights into the elements crucial for ascertaining state responsibility for omissions - state knowledge, causation, and reasonableness. It outlines different kinds of positive human rights obligations and identifies the circumstances under which they can be breached. Stoyanova reflects upon what is at stake for political communities when the triggering, content, and scope of positive obligations has been determined. She offers serious evaluation of the dangers of ECHR obligations whose scope might be too expansive or intrusive, as well as the conceptual hurdles of applying positive human rights obligations extraterritorially. The definitive resource on ECHR positive obligations, this book is essential reading for academics, legal practitioners, and policymakers working across the diverse fields in which positive human rights obligations may apply. This is an open access title available under the terms of a CC BY-NC-ND 4.0 International licence. It is free to read at Oxford Scholarship Online and offered as a free PDF download from OUP and selected open access locations.