Whether, and under what conditions, does a waiver of rights according to the European Convention on Human rights exempt a state from its corresponding obligations? And – by extension – is it, under certain circumstances, obliged to respect a waiver and thereby grant the right-holder the opposite of an express right? This article will focus on these general questions: a waiver of a right guaranteed by the Convention must be validly established, in an unequivocal manner and not run counter to any important public interests. The latter requirement implies that there are limits to the right-holder’s self-determination regarding his rights; the importance of securing human rights may reach beyond the individual directly concerned. Consequently, the right-holder does not necessarily have the competence to dispose over the right so that he, by waiving it, relieves the state of its obligation to secure the right in question. Nevertheless, the right-holder’s self-determination, too, may carry weight in particular situations and in relation to particular rights. Also this article intends to clarify the relationship between waiver and two concepts in the extension: ‘negative’ and ‘preferred’ rights. It is argued that a right-holder can, to a certain extent, claim the opposite of what a particular article expressly grants him. The legal basis for such (possible) claim is discussed. The study applies ‘ordinary legal method’ (relevant terms of the treaty (especially ECHR) read in their context, in the light of its object and purpose and with due regard to case law).
Keywords: Waiver of Human Rights, Inalienable Rights, Self-Determination, Important Public Interests, Negative Rights.
The nature and enforcement of social and economic rights are persistently in debate. Using the European Social Charter as a case in point, and also drawing on the European Convention of Human Rights, this paper argues that there is no inherent difference between social and political rights and civil and political rights with regard to regard to judicial application at national level. It also argues that the Charter’s clause on the nature of its legal obligations in no way alters this.
Keywords: Human Rights, Social and Economic Rights, International Law, Enforcement
This article examines how professional responsibility in the context of the operation of asylum centres is understood in the governing documents relating to Norwegian asylum centres. Primarily, the reception centres are described as normal places of residence, in addition to being places for individual growth and development. Excluded from the texts is the asylum seeker and her extraordinary situation. The asylum seeker is understood as a resident, whilst the employees are seen as guides. The governing documents emphasise technical procedures and professional responsibility is linked to ‘accountability’, that is, responsibility in the sense of technical accounting obligations. This leads to a restricted understanding of professional responsibility where human relations are reduced to customer relations. Thus, responsibility is transferred from the employees to the asylum seeker. The employees become responsible for the procedures, and the residents for their own safety. As a result, liability for preventing a breach of human rights is excluded from professional responsibility.
Keywords: Professional responsibility, Human Rights, Reception Centres, Discourse Analysis