This chapter addresses a former practice where international civil servants of certain UN organisations, who were not satisfied with the decisions rendered by the administrative tribunal dealing with their employment matters, were able to have these decisions re-examined by the Court. These proceedings drew much attention to the access and procedural inclusion of individuals before the World Court. It argues that the Court was indeed the incorrect forum for wronged UN staff members seeking redress due to its own Statute barring access to individuals and therefore entailing a permanent inequality of the parties. However, it argues that while the Court was handling such disputes, there were ways to adjust its procedural mechanisms to further bridge the inequality between the parties.

This chapter examines rights relating to personal freedom, including the right to liberty and the rights of persons deprived of liberty. It discusses the legal basis, interpretation, scope, and international protection of these rights. The chapter explores the standards for lawful detention, the procedural safeguards required to protect personal freedom, and the mechanisms for monitoring and enforcing these standards. It also highlights the role of international bodies in addressing violations of personal freedom and the challenges in ensuring compliance with human rights norms in various contexts, including criminal justice, immigration, and mental health.

This part explores the principles and mechanisms for the reparation of human rights violations and the enforcement of decisions rendered by international human rights bodies. It discusses the obligation of states to provide full reparation for harm suffered as a result of human rights violations, including restitution, compensation, rehabilitation, satisfaction, and guarantees of nonrepetition. The sections examine the legal standards for determining and quantifying reparation, the procedural aspects of reparation processes, and the role of international and national bodies in monitoring and enforcing reparation awards. Additionally, this part focuses on the enforcement mechanisms and challenges in implementing international human rights decisions. It discusses various models of enforcement, including judicial review, hybrid monitoring, and political and diplomatic control. The part highlights the importance of effective enforcement in ensuring the realization of human rights and the accountability of states for human rights violations. By providing insights into the reparation and enforcement processes, this part emphasizes the critical role of comprehensive and effective mechanisms in achieving justice and reconciliation for victims of human rights violations.

This title focuses on the mechanisms and challenges in enforcing decisions rendered by international human rights bodies. It discusses the various models of enforcement, including judicial review, hybrid monitoring, and political and diplomatic control. The section examines the procedures for monitoring compliance with international decisions, the role of international and regional bodies in supervising the implementation of judgments, and the strategies for addressing noncompliance. It also explores the impact of enforcement mechanisms on the effectiveness of international human rights protection, the importance of political will and international cooperation, and the need for innovative approaches to enhance compliance. By providing insights into the enforcement process, this title highlights the critical role of effective enforcement in ensuring the realization of human rights and the accountability of states for human rights violations.

Constitutions set out fundamental principles of political morality that bind institutional action and assign strong political rights to individuals. At surface level, the principle of proportionality is a methodological device. It operates as a doctrinal heading under which courts scrutinize state interference with individual liberty and assess the scope of their own authority. According to the orthodox understanding of proportionality, this scrutiny takes the form of balancing rights against public interest, which raises questions about the legitimacy of judicial review. This chapter argues that, contrary to the orthodox view, proportionality is primarily about the normative foundations of constitutional rights and the duty of courts to pursue, through principled legal reasoning, the moral truth about individual rights. On this rival account of proportionality, rights are equality-based moral norms constraining state action and no actual balancing takes place by courts. If we are to take seriously both the idea of fundamental rights and the principle of proportionality, we must abandon the misleading metaphor of balancing and the problems of incommensurability and judicial scepticism to which it leads.

This chapter focuses not on the possible content of a Bill of Rights, such as whether it should contain social and economic rights or only civil and political rights, but on the form any such Bill needs to take to be legitimate in a manner congruent with the moral norms of equal concern and respect underlying both rights and democracy. It explores four conceptions of Bills of Rights and the different ways they relate to democratic theory and practice. I start with the view of a Bill of Rights as distinct from normal legislation and that is ultimately the responsibility of the courts to defend. I distinguish between substantive and procedural accounts, in which the first focuses on upholding the rights necessary to ensure the outputs of democratic decisions reflect democratic norms whereas the second seeks to uphold the rights required for a due democratic process. I then turn to legislated rights and the role of Parliamentary Bills of Rights. Finally, I examine the role of democratic constitutional politics as a means for justifying and legitimising such rights instruments, be they upheld by legislatures or courts.

This chapter forms the context for the discussion in the following chapters analyzing various legal grounds for challenging automated government decision-making. It outlines the constitutional, human rights, and administrative law frameworks in the United States, the United Kingdom and Australia.

The chapter examines the legal challenges of rationality of automated decision-making through constitutional due process in the US, and via judicial review in the UK and Australia. The existing legal frameworks of these jurisdictions are premised on human decision-making and the concept of human rationality. Automated decisions that fail the test of rationality can be invalidated. Following this, the chapter will consider three main issues in terms of reviewability of the rationality of a decision: what is seen as constituting a “decision”, who is the decision-maker, and what factors and criteria can be used in making a decision.

The Colombo Port City Project (CPC or the “Project”) is the most prominent Chinese direct investment in Sri Lanka. The case study highlights the prospects and resilience of a BRI project in the cyclical process of democratic decay and consolidation in a host state with democratic dispensation and welfare commitments. It traces the geopolitics of the day and dynamics between the transnational discourse on human rights and investment. From a Chinese perspective, it reveals the contingencies of each BRI project and the inherent entanglement between the politics of the Chinese state and its corporations involved in the BRI with the sociopolitical realities of a host state. From a Sri Lankan perspective, this study reveals the different political and legal narratives around the Project, the challenges these generated, and the resilience of the Project. It combines a legal doctrinal approach with commentary on its political economy, focusing on the litigation and legislation concerning the CPC. Further, it offers insights into the prospects for dealing with foreign investment-related legal disputes through the public law of a host state, thereby capturing the methods by which the domestic legal sphere of a host state responds to the BRI.

In this chapter, I first examine how the rule of law has been defined in legal theory, and how it has been distinguished from the rule by law, which is a distortion thereof (Section 3.1). Second, I assess how the rule of law has been conceptualised in the context of the European Union, as this book focuses primarily on the EU legal order (Section 3.2). In this regard, I also draw on the acquis of the Council of Europe. The Council of Europe is a distinct jurisdictional order, yet it heavily influenced the ‘EU’ conceptualisation of the rule of law, and the EU regularly relies on Council of Europe sources in its own legal practices. Finally, I draw on these findings to identify the rule of law’s core principles and to distil the concrete requirements that public authorities must fulfil to comply therewith (Section 3.3). Identifying these requirements – and the inherent challenges to achieve them – will subsequently allow me to build a normative analytical framework that I can use as a benchmark in Chapter 4 to assess how algorithmic regulation impacts the rule of law.

The action for annulment is one of the main avenues to test the lawfulness of EU measures in light of EU fundamental rights. Through this procedure, the EU courts exercise their role of guardians of the Treaties by confirming or striking down EU measures. Accordingly, the action has both an ex post regulatory and a democratic control function, while ensuring the coherence of the EU legal order under a Kelsenian model of constitutional review. It is through procedure that EU fundamental rights exercise their influence in the action for annulment: both the parties to the litigation and the Court invoke procedural fundamental rights to delineate the process-based obligations imposed on EU institutions. In so doing, both the applicants and the EU courts shape fairness and the rule of law in the EU administrative space. The centrality of procedure in the judicial review of EU law is a direct reflection of the plethora of procedures that constellate the EU governance. Yet recent rule of law saga cases appear to signal a new direction towards more substantive pleas (and therefore contestation) of EU law.

This chapter advocates an ethic of “symmetric interpretation” as a solution to the challenges outlined in Chapter 1. To prevent undue politicization of constitutional law, judges should favor, when possible, constitutional understandings that are “symmetric” in the sense of conferring valuable protections across both sides of the nation’s major political and ideological divides. By the same token, they should disfavor understandings that frame constitutional law as a matter of zero-sum competition between rival partisan visions. Favoring symmetric understandings in this sense will not always be possible. When it is possible, however, favoring symmetry may provide a point of common orientation for judges with differing policy preferences and interpretive outlooks. Reflecting this approach's inherent appeal, an inchoate preference for symmetry is already evident in judges’ opinions, oral argument questions, and reasoning.

This chapter will briefly describe the outcomes of a coroner’s inquest: the findings available to the coroner, and the types of concerns that they can express. It will also explain Regulation 28 (Prevention of Future Death) reports.

Who has the authority to decide on behalf of children the balance between advancing the child rights regime over the legal certainty of real children? This question is put to the test with the Swedish incorporation of the CRC into the national legal system without adhering to normal democratic safeguards; pairing the hierarchy of norms with the corresponding hierarchy of sources when conducing judicial review, or a political question doctrine to maintain the line between the courts and the democratically elected legislator. To incorporate the CRC directly without a process of transference, an international treaty that is as wide in scope and open for interpretation to be directly applicable in concrete cases has caused a persistent condition akin to Agamben’s state of exception, read through Swedish scholar Herbert Tingsten.

This chapter outlines the challenges that current political polarization presents for constitutional law and judicial authority. Over the past fifty years, US politics have polarized, producing close political competition between two ideologically defined national parties that view each other with fear and distrust. This polarization has encouraged political actors in Congress and the federal executive branch to take legally aggressive positions and prioritize substantive policy achievements over adherence to good-governance norms or even constitutional restraints. At the same time, polarization has generated rival constitutional visions, and aligned slates of judges, that aim to advance partisan goals through constitutional interpretation. This environment poses risks for both judicial authority and constitutional law, because the public may lose trust in courts as neutral arbiters of constitutional disputes if it perceives them as wholly political institutions.

Originally established by “we the people,” as its preamble majestically states, the Constitution belongs to us all. But Americans increasingly treat it as the property of one political faction or the other. In keeping with their own preferences, conservatives interpret the Constitution to protect religion, limit gun control, and obstruct administrative governance while allowing state-level regulation of moral questions like abortion. Progressives see a mirror-image constitution that advances social justice, confers broad federal power, and allows flexible administrative regulation while at the same time limiting state and local police authority and guaranteeing sexual and reproductive autonomy. As national politics have grown ever more divided and polarized, preventing either side from implementing its goals through federal legislation, both coalitions have dreamed of capturing the courts and implementing their vision instead through constitutional interpretation. A document that should be a source of unity and shared commitments has become a vehicle for extending political conflict.