Human rights and the rule of law
Title: Human rights and the rule of law
Author: CORSTENS, Geert
Series/Number: EUI LAW; Centre for Judicial Cooperation DL; 2014/03
This paper examines the role of the Courts in ensuring that human rights that exist on paper are ‘practical and effective’ in application. The author conducts this examination by considering the important role of the rule of law in the application of human rights. The author argues that the written law, which enshrines human rights, only becomes legally enforceable if there exists a functioning and proper government structure. That structure includes an independent and impartial judiciary which is capable of ensuring proper implementation of the rule of law. In a democracy governed by the rule of law, the government is also bound by the law and that law contains safeguards protecting everyone’s individual freedoms. The author sets out five developments which explain the great increase in the importance of fundamental rights in recent years - proliferation, horizontal effect, internationalisation and a broadening of perspective. The final part of the paper takes two topics which emanate from consideration of the first of these five developments, proliferation. The first topic is the scope for a national approach versus European uniformity and the second is the difference between destructive and constructive criticism of the case-law of the European Court of Human Rights. This paper concludes by again underlining the important role of the rule of law in ensuring government accountability and the implementation of human rights and argues that because of the acceptance by national Courts of the aforementioned developments, those Courts are better prepared to interpret human rights in the modern world.
Subject: Human Rights; Rule of Law; Role of the courts; Separation of powers; European Convention on human rights
Type of Access: openAccess