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Über dieses Buch

This book is published open access under a CC BY-NC-ND 4.0 license.

This book analyzes issues in human rights law from a variety of perspectives by eminent European and Asian professors of constitutional law, international public law, and European Union law.

As a result, their contributions collected here illustrate the phenomenon of cross-fertilization not only in Europe (the EU and its member states and the Council of Europe), but also between Europe and Asia. Furthermore, it reveals the influence that national and foreign law, EU law and the European Convention on Human Rights, and European and Asian law exert over one another.

The various chapters cover general fundamental rights and human rights issues in Europe and Asia as well as specific topics regarding the principles of nondiscrimination, women’s rights, the right to freedom of speech in Japan, and China’s Development Banks in Asia.

Protection of human rights should be guaranteed in the international community, and research based on a comparative law approach is useful for the protection of human rights at a higher level. As the product of academic cooperation between ten professors of Japanese, Taiwanese, German, Italian, and Belgian nationalities, this work responds to such needs.

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Inhaltsverzeichnis

Frontmatter

Human Rights in Europe

Frontmatter

Open Access

Mechanisms to Protect Human Rights in the EU’s External Relations

The protection of human rights in the European Union (EU) has been developing steadily. The EU has its own catalogue of fundamental rights, the Charter of the Fundamental Rights of the EU. Human rights in the EU are guaranteed by EU law and the Court of Justice of the EU (CJEU). Now, coherence between internal and external relations regarding human rights is required. The Treaty of Lisbon provides a mechanism for achieving this coherence. That is, the Treaty of Lisbon enables the EU to mainstream human rights in the EU’s external relations. On the one hand, the Treaty of Lisbon provides the EU’s values in Article 2 TEU, and its political principles in Article 21 TEU and Article 3 TEU. On the other hand, the Treaty of Lisbon confers new competences to the EU. Furthermore, the combination of the former and the latter enables the Union to conclude not only international agreements, including human rights, but also international human rights agreements. Furthermore, Article 21 TEU can be used as a means for cross-fertilisation in the context of the protection of human rights.
Yumiko Nakanishi

Open Access

Fundamental Rights Regimes in the European Union: Contouring Their Spheres

Various fundamental rights regimes are in operation within the European Union (EU), and frequently overlap: national regimes, the EU’s fundamental rights and the European Convention on Human Rights (ECHR). This raises the issue of how to determine their respective scope of application, which is not only a substantive question, but also a procedural one since different courts are entrusted with their protection, notably the European Court of Justice (ECJ), the European Court of Human Rights (ECtHR), and national constitutional courts. Against this background, this paper explores the relevance of national fundamental rights for EU action. This paper also addresses the controversial question of the degree to which EU Member States are bound by EU fundamental rights, which in turn have finally been codified with the Treaty of Lisbon in 2009.
Ferdinand Wollenschläger

Open Access

Human Rights Protection in the EU as Unitas Multiplex

That the Sovereignty of Nation-States is based on the premise of the protection of human rights is widely acknowledged. According to this premise, holders of nationality are considered to be the primary ratione personae whose human rights must be protected by the State. Through nationality, people are considered as socially “subsumed” to a specific State and, in the field of law, nationality is defined as a legal relationship between a person and a State. This article focuses on the notion of EU citizenship. EU citizenship has expanded the protection of human rights, formerly guaranteed through state law, basically to nationals. It is functioning as a tool that coordinates the protection of human rights between the Member States by their mutual reference. The Treaty on the Functioning of the European Union states that “every person holding the nationality of a Member State shall be a citizen of the Union”. By making nationality a requirement for being an EU citizen, the protection of rights by the Member States and the EU citizenship are placed in a certain relationship.
Noriko Ofuji

Human Rights in Asia

Frontmatter

Open Access

The Role of the Judicial Branch in the Protection of Fundamental Rights in Japan

There exist two models of constitutional review: the American model and the European model. Japan’s system of judicial review, in place since 1947, was intended to be an adaptation of the American model. However, the Supreme Court has undertaken a moderating role when exercising its power of judicial review and is frequently viewed as exhibiting “judicial passiveness.” With regard to the background of this passiveness, we examine three discussions: overburden of the Supreme Court, incompatibility between career judge System and constitutional review, and lack of power shift in postwar Japan. From the beginning of this century, the Japanese Supreme Court has begun to assume a more active role in discrimination and vote equality cases; however, the scope of this change is still uncertain. By reviewing the recent rulings of the Court, we consider the limits and potentials of small judiciary in the protection of fundamental rights in Japan.
Masahito Tadano

Open Access

Does Formal Rank Matter?

A Framework-Oriented View on the Binding Force of International Human Rights Law on Constitutional Law
As is well known, different countries may have a different attitude toward the formal rank of international human rights law in domestic legal order. In those countries that qualify the ratified international human rights law merely as statute, the formal rank of international human rights law is often used as an argument against the binding force of international human rights law on domestic constitutional law. Through a comparative analysis between Germany and Taiwan, though, this paper shows that, despite similar determinations on the formal rank of international (human rights) law, the German and the Taiwanese Constitutional Courts have developed quite different views on the normative significance of international human rights law to their domestic constitutional orders. The different constitutional practices in Germany and Taiwan thus not only reflect Taiwan’s unique international status, but also indicate that the formal rank of international human rights law does not have much to do with its normative binding force on domestic constitutional law. Those who use formal rank as an argument against the binding force of international human rights law on constitutional law presuppose the absolute dichotomy of international and domestic law and thereby overlook the potential compatibility between international human rights law and constitutional law. From a human rights perspective, I argue that international human rights law should not be regarded as an “external” law, but rather as a framework order which delegates domestic constitutional orders to concretize international human rights law according to their own needs or interests so as to fulfill their international task of human rights protection on national level. Viewed this way, the determination on the formal rank of international human rights law in domestic legal order matters only because it has to do with the determination of a certain constitutional order on the way in which it concretizes international human rights law.
Shu-Perng Hwang

Open Access

The Asian Region and the International Criminal Court

As of February 2017, the International Criminal Court (ICC) had 124 state parties. Among them, nineteen states belonged to the Asia-Pacific region and two thereof ratified Rome Statute amendments on the crime of aggression. Ratification indicates success of the rule of international law in Asia. Among Southeast Asian states, however, only two ratified the Rome Statute, namely, Cambodia and the Philippines. Although the Asia-Pacific region is home to half of the population on the globe, the people in the region are apparently underrepresented in the ICC. This article explores and explains why Asian states are disinclined to join the ICC. Ancillary discussion in this paper evaluates future prospects of current non-state parties of the ICC Statute. Lastly, the paper touches on the Asian region and ICC preliminary investigations by the ICC Office of the Prosecutor, including such cases as the downing of the Malaysia Airlines flight MH17 .
Hitomi Takemura

Special Topics of Human Rights in Europe and Asia

Frontmatter

Open Access

The Principle of Non-discrimination in the European Convention on Human Rights and in EU Fundamental Rights Law

This chapter compares the jurisprudence of the European Court of Human Rights on Art. 14 ECHR with the jurisprudence of the European Court of Justice on Art. 18 TFEU and on Art. 21 (1) of the Charter of Fundamental Rights. It will analyze the interplay between qualifications and limitations of the scope of these guarantees imposed by the text and their interpretation by the competent courts. The article finds that both courts interpret the scope of application of the equal protection guarantees rather broadly. However, when it comes to the prohibited criteria of distinction, at least the European Court of Human Rights exercises self-restraint.
Niels Petersen

Open Access

Women’s Rights and Gender Equality in Europe and Asia

The purpose of this chapter is to provide an overview of the evolution of the protection of women’s rights in Europe and Asia (Asean countries and Japan). The chapter will focus on violence against women and on trafficking of women, and on two regional legal instruments, namely  the Council of Europe Istanbul Convention on preventing and combating violence against women and domestic violence, and the ASEAN Convention against trafficking in persons, especially women and children. The contribution does not purport to compare two systems which present specific characteristics, but rather to show how the protection of human rights, and in particular women’s rights, can benefit from a dialogue between regional experiences. We will therefore support the trend toward ‘regionalisation ’ in the protection of women’s rights, encouraging, at the same time, a dialogue between the systems themselves.
Sara De Vido

Open Access

Guarantee of the Right to Freedom of Speech in Japan—A Comparison with Doctrines in Germany

Japan’s ranking in the “World Press Freedom” index has fallen. Recently enacted legislation was given as the reason for this demotion. However, in Japan, freedom of expression (or speech), including freedom of the press, has been subject to other restrictions. What is more, an informal censorship system operated during World War II and agreements between the government office and its “press club” have continued since the war. Japanese academics, who require a strict review of the constitutionality of regulating freedom of speech, have often referred to arguments rooted in the United States, but the Japanese Supreme Court has never rejected statutes intended to limit freedom of speech. In contrast, although it is often said that in Germany there is no rationale for freedom of speech being protected as a “special right,” the Constitutional Court in Germany has often defended freedom of speech. Therefore, it might be an exaggeration to assert that the idea of protecting freedom of speech as a “special right” in Germany does not exist.
Takashi Jitsuhara

Open Access

China’s Development Banks in Asia: A Human Rights Perspective

With the establishment of China’s new multilateral development banks in Asia, concerns on behalf of developed nations have been raised regarding the future protection of human rights and environmental standards in the financing of development projects in Asia by China’s new financial vehicles. However, according to the operational and financial principles of the Asian Infrastructure Investment Bank (AIIB) in particular, those international norms ought to be observed in order to uphold the reputation of the bank and thus of China’s image but also have to be balanced in respect of the sovereign interests of the recipient state. The mixed membership of the AIIB and its cooperation with other international and regional development banks, including the World Bank and the Asian Development Bank, may give sufficient room to progressively advance human rights and environmental protection through the new financial practices of the AIIB.
Matthias Vanhullebusch

Backmatter

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