Mennesker & Rettigheter, 4/2002:

English summary

Paul Martin Opdal: Rights of the child

The article asks if the Convention on the rights of the child may not be something of a paradox in its attempt to harmonize essentially unharmonizable rights. The rights set out in the Convention can be divided into three types: those associated with the right to protection; those that aim at ensuring necessary protection; and finally, those concerning the right of children to participate. The right to protection and right to participate can be seen as mutually contradictory. The article explores whether a coherent and integral interpretation which takes all types of rights into account is feasible, or if interpretation will have little choice but to grow out of the way in which the notion of the child happens to be understood. The article finds that a harmonizing interpretation is impossible, and that the approach applied, be it emancipatory or paternalistic, will always determine which rights are given priority. Norway has still not synchronized the Children Act with the Convention a decade after ratifying the latter. One explanation may be the reluctance of the authorities to decide once and for all their interpretation of the Convention.

Rikke Frank Jørgensen: Internet, libraries and freedom of information

The paper discusses whether content-based restrictions on Internet access in Danish public libraries are compliant with the freedom of information protected by Article 10 of the European Convention on Human Rights. The paper argues on the basis of Jürgen Habermas´ theory on system and lifeworld that the formation of a free and critical public opinion depends on an unrestricted public sphere open to all. The Internet represents one such public sphere – to which the new Danish library law secures unrestricted access to all. The paper argues that the current application of content-restrictions by filters or search limits at Danish public libraries is problematic, since it arbitrarily restricts citizen’s access to information which is already in the public domain. Furthermore, it undermines the libraries’ obligation to secure everybody access to the Internet as a public sphere.

Mats Lindfelt: EU’s approach to fundamental rights

The European Parliament, the Commission and the Council adopted the EU Charter of Fundamental Rights jointly in December 2000 as a political declaration without binding legal force. However, this does not necessarily mean that the Charter is bereft of any legal force at all. In fact, it can be argued that it cannot simplistically be categorised in terms of binding/non-binding provisions, since it codifies pre-existing fundamental rights that are already protected within the Community’s legal order. It is seen as a codification of article 6 (2) Treaty on European Union. General Advocate Mischo of the ECJ has stated that the Charter ”constitutes the expression, at the highest level, of a democratically established political consensus on what must today be considered as the catalogue of fundamental rights guaranteed by the Community legal order”. Indeed, the Charter is the outcome of compromise within the Convention and among Member States concerning what was felt as expressing ”existing rights” within the Community legal order. The future status of the Charter is yet to be determined. A discussion has begun in advance of the next intergovernmental conference within the Convention dealing with matters related to nothing less than the future of the EU.

Stevan Lilic: Protection of human rights in Serbia

The article deals with the conceptual issues of the rule of law and human rights and asks if the ombudsman (ombudsperson) as an institution can contribute to protecting these rights in times of turbulent social, political and legal upheaval. The concept of the rule of law originated in the mid-19th century and rests on a normativistic legal model of regulating social relations. However, modern concepts of the legal system rest on models of government as a complex and dynamic system of human interaction and social services. This is also true of the administrative system. Administrative activity is not perceived as a function of state power, but as a public service, an activity focused on the realization of the welfare of society and the improvement of the quality of individual lives. Without probing the possible and probable reasons why the new Serbian authorities have omitted to introduce an ombudsman institution with a mandate to monitor human rights protection, primarily in relation the activities of the authorities, one might reasonably ask if efficient human rights protection under conditions of transition is really possible, or is it just an illusion entertained by human rights activists, lawyers and other enthusiasts?

Henrik Døcker: Does the Court of Human Rights need a helping hand?

The articles sets out some of the most acute problems facing the European Court of Human Rights at the present time. The steady growth in cases, including the river of Italian cases on slow procedural administration. There is reason for a little optimism with regard to this category of cases in particular since Italy has enacted a new law, the Pinto Act, which gathers all such cases together in a domestic Italian system, after which victims of human rights abuse should be able to claim compensation through an entirely Italian procedure. Further, the difficulties experienced by the Committee of Ministers in their attempt to enact some of the Court’s judgements, especially in countries like Turkey and Cyprus. The article looks finally at the increasing number of cases related to violations of the Convention brought by private individuals.