Constitutional and International Human Rights Law

Course type

Obvezni

Study programme and level

Masters and PhD, Postgraduate, Law

Language

slovenščina

Lectures	Seminar	Tutorial	Druge oblike študija	Individual Work	ECTS
40				160	8

Prerequisites:

Fulfillment of requirements to enroll in the 1^st year.

Content (Syllabus outline):

I. The constitutional provisions on human rights

1 Systems of regulation
2 Types of rights (individual and collective rights, civil and political rights, economic, social and cultural rights).
3 Historical development of the constitutionality (the idea of constitutionalism, elements of constitutionalism, classical systems of constitutionalism)

II. Constitutional review of the constitutionality (judicial and constitutional review), systems and models.

1 The concept and development of constitutional review (the concept of constitutional review, development of the constitutional review around the world, the definition of constitutional justice, the importance of judicial review of the constitutionality, comparative constitutional review)
2 Systems of constitutional review (non-judicial and judicial system and/or model, the U.S. model, the European model, the mixed model, the French model, the New Commonwealth model, other models, systems without judicial review of constitutionality)
3 Forms of constitutional review (preventive and repressive review, concrete and abstract review, types and legal nature of constitutional decisions, federalism and constitutional justice
4 International Associations of  authorities of judicial/constitutional review

III.

1 Protection of human rights
2 National protection. Formal care (ordinary judiciary, special judiciary, constitutional justice). Informal Protection (Ombudsman, other forms of protection, NGOs, etc.).
3 International protection. Universal Protection (United Nations). Regional Protection (European Court of Human Rights, European Union Declaration of 2000 the Inter-American Court of Human Rights, the African Court of Human Rights, the International Court of Human Rights under the Dayton Agreement (Bosnia and Herzegovina)
4 Using of principles of the international protection within the national protection

IV.

1 Constitutional review and its methodological characteristics
2 Features of American constitutional review
3 The European constitutional review
4 Basic features of the proceedings before the European Court of Human Rights
5 The European Convention on Human Rights as part of the Slovenian constitutional and. the legal system
5 The fundamental principles of procedure before the Constitutional Court of Slovenia
6 Criteria and principles of constitutional review in Slovenia (the principle of proportionality, new techniques and methods)

V.

1 Constitutional bases for the protection of human rights and fundamental freedoms
2 Typology of constitutional rights and freedoms
3 Violation of rights, redress and rehabilitation

VI.

1 The rule of law (general constitutional principle of proportionality. Prohibition of retroactivity of laws. Protection of legitimate expectations – interference with the vested rights, the requirement of legal certainty and clarity (certainty) of legal norms)
2 Consistency of abstract legal acts.
3 Binding of the administration on the constitution and the law.
4 Duty to justify a specific legal act – Content and scope of reasoning.
6 Publication of laws and regulations (unpublished regulations. Prohibition of secret legislation. Application of the rules that have expired)

VII .

SUBSTANTIVE HUMAN RIGHTS – INDIVIDUAL RIGHTS IN SLOVENIAN ( national) environment and environment of the European Convention on Human Rights )
1 The basic concept of ” human rights ”
Human rights in national and international law ; – conceptions of human rights , human freedoms ” human rights ” ( Menschenrechte ) Constitutional Rights ( Grundrechte ) Civil Rights ( Civil Rights ) , personal rights ( Persönlichkeitsrechte ) , fundamental freedoms ( Basic Freedoms , Grundfreiheiten ) ; basic division of human rights , status positivus status negativus ( Jellinek ) ; generations of human rights
2 Historical and philosophical development of human rights
2.1 . Religion and the origin of human rights – traditional Asian culture , Mahayana Buddhism – Ratnagotryibhāga I, vv. 69-7 : Description of the Bodhisattva ; Bible : Ten Commandments ; Qur’an : Suras 12:168-242
2.2 . From natural law to utilitarism
2.3 . The basic historical documents
2.4 . Modern theories of human rights – the ” revised ” naturalistic theory ( Finnis ) ; theory based on distributive justice ( Rawls ) ; theory , based on autonomy ( Gewirth ) ; theory , based on freedom ( Nozick ) ; theory based on equality – egalitarianism ( Dworkin )
3 International grounds of human rights
3.1 . Universal Documents :
3.1.1 . Universal Declaration of Human Rights
3.1.2 . International Covenant on Civil and Political Rights
3.1.3 . International Covenant on Social and Economic Rights
3.1.4 . UN Convention on the Prevention and Punishment of Genocide
3.1.5 . Convention on the elimination of all forms of Racial Discrimination
3.1.6 . Convention on the elimination of all forms of discrimination against women
3.1.7 . Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
3.1.8.The Vienna Declaration
3.1.9 . The Beijing Declaration
3.1.10.The UN Convention on children’s rights
3.2 . Regional documents :
3.2.1 . European Convention on Human Rights and Fundamental Freedoms
3.2.2 . The European Social Charter
3.2.3 . American Convention on Human Rights
3.2.4 . The African Charter on Human Rights
3.3 . Methods of implementation of international human rights treaties
3.3.1 . The principle of pacta sund servanda and human rights
3.3.2 . Adoption or transformation of international law into domestic law
3.3.3 . Limitation of state sovereignty
3.3.4.Human as a special subject of international law
4 Particular human rights
4.1 . Right of the first generation :
4.1.1 . Right to life ( death penalty ; Convention for the Protection of Human Rights and Dignity of the Human Being with the application of biology and medicine; Convention on the Prohibition of genocide ; Statute of the permanent International Criminal Court )
4.1.2.Right to mental and physical integrity – prohibition of torture , prohibition of slavery and forced labor ( current problems ” of modern slavery ,” trafficking , prohibition of trading in human organs ; European Convention for the Prevention of Torture ; international criminal law )
4.1.3.Right to liberty and security (jurisprudence of the ECtHR and the Constitutional Court of the Republic of Slovenia )
4.1.4.Right to a fair trial ( analysis of options for preventing ” syndrome of Article 6 “)
4.1.5.Freedom of thought, conscience and religion ( comparative aspects , emphasis on restrictions – Para. 2 of Article 9 of the ECHR )
4.1.6.Freedom of speech, freedom of movement, freedom of association ( comparative aspects , emphasis on restrictions – Para. 2 of Article 10 of the ECHR )
4.1.7.Right to privacy and the family rights ( current problems , protection of personal data ; recent trends in personal and family law )
4.1.8.Prohibition of discrimination ( case-law of the ECtHR )
4.1.9.Right to private property ( current issues )
4.2 . The rights of the second generation (selected chapters, the emphasis on cultural rights)
4.3 . The rights of the third generation ( selected chapters , the emphasis Rights of National Minorities – case study : the Slovenian minority in Italy and Austria )
5 International Humanitarian Law and Human Rights in Armed Conflict ( selected chapters focusing on the Geneva Conventions and their additional protocols and the Statute of the permanent International Criminal Court )
6 International procedures for the protection of the rights of man ( the formal part)
6.1 . Control within the UN system
6.1.1.The Human Rights Board
6.1.2.Commission for Human Rights ( procedures ” 1235 ” and ” 1305 “)
6.1.3.The Board on the Elimination of All Forms of Racial Discrimination
– The Committee against Torture
– The Commission on the Status of Women
– Options for individual conventions
– Procedure country v. country , the possibility of complaints of individuals and groups
– Other international bodies
6.2 . Procedures on the regional level
6.2.1 . Proceedings before the European Court of Human Rights
– Protocols 11, 14, 15, 16
– Internal Rules of the Court
– Procedures under the European Social Charter
6.2.2 . Control mechanism of the OSCE
7 Open problems in the international human rights law
– Current problems in the international human rights law ( Case Studies )
– Rights of the third generation
– Globalization and Human Rights
– ” Post 11 September ” Trends of Human Rights

Objectives and competences:

Students will be able to find, understand and apply basic knowledge of constitutional law of the Republic of Slovenia.

Intended learning outcomes:

The course enables students to broad and in-depth knowledge of systems and protection of human rights in the world. It is a combination of national and comparative human rights law. As an upgrade to the (national) constitutional law, comparative method informs students about regulations in foreign countries across individual world areas and characteristic types of systems or constitutions. By the process of globalization and the development of communications the comparative approach became a condicio sine qua non of any modern legal expert.

Students learn through formal and informal forms of protection of human rights, in particular the constitutional protection resulting from existing models of judicial/constitutional review.

The existing grounds of human rights law are reflected in national constitutional norms and principles. Moreover, international human rights law and – in Europe – Council of Europe law and European Union law, are strongly influenced by national constitutional law . Although “traditional” systems such as the U.S. , Canada , France and Germany may at first glance serve as a kind of patterns in the search for systemic solutions , the recent constitutional developments in the countries of the new democracy cannot be ignored within the comprehensive presentation of the discussed topic.

Learning and teaching methods:

Lectures are based on the representation of matter with modern computer-based visual means.

Assessment:

Type (examination, oral, coursework, project):

Written Examination 70%

Coursework 30%