WP6. Divergence and coherence in human rights law (UGent, ULB, VUB)
Work package 6 will examine the value there may be in not – entirely – integrating human rights law. Indeed, a central question is to what extent human rights pluralism makes room for variations on a single theme, i.e. different formulations and interpretations of the same norms. The research will define a guiding framework for the demarcation of acceptable degrees of divergence in specific situations. Next, the research will provide an inventory of – both existing and new – legal techniques that allow to accommodate and at the same time control divergence in human rights formulations and interpretations. The theme will be further explored in two extensive case studies: one concerns the potential of the Strasbourg (ECtHR) tool of ‘margin of appreciation’ for the Luxemburg court (ECJ). The other examines how indigenous peoples’ rights to lands and resources are approached in different manners in different human rights mechanisms, in particular on account of European resistance to the idea of collective rights.
Regulating divergence: identifying the tools (UGent)TeamProject
The research is geared at defining in the first place a guiding framework for the demarcation of acceptable degrees of divergence in specific situations. Next, the research will provide an inventory of – both existing and new – legal techniques that allow to accommodate and at the same time control divergence in human rights formulations and interpretations. A thorough analysis of the work of regional and global human rights monitoring bodies will allow a mapping of techniques that are currently employed and of the areas and themes on which divergence is more or less accommodated. Moreover, the study of the legal doctrine will allow an assessment of how the current practice is received, what is considered best practice, in which situations current practice is contested, and what normative solutions are put forward. Finally, this research will employ out-of-the-box thinking to devise new tools for the management of divergence in universal norms and for upgrading existing tools toward better performance as defined by the guiding framework.
Court of Justice of the European Union and national margin of appreciation: the case of fundamental rights (ULB, VUB)TeamProject
Among the different techniques which allow to accommodate national specificities with the protection of human rights at a supranational level, one of the most important ones is the margin of appreciation, as developed by the European Court of Human Rights. However, the European Court of Justice case-law shows that the margin of appreciation is no longer an exclusive tool of the European Court of Human Rights and it is, indeed, one of the main techniques to regulate divergence on the protection of fundamental rights at the EU level.
The PhD research aims to provide a systematic analysis of ECJ case-law in the field of fundamental rights where the national margin of appreciation has been applied. One of the main parts of the research focuses on assessing, from a legal theory perspective, the role of the national margin of appreciation in the search of a balance between uniform application of EU law and different constitutional values concerning the protection of fundamental rights, and more largely, on its impact on the relationships between EU law, constitutional law and the ECHR.
Indigenous' peoples' rights to traditional lands, territories and resources: a comparative view from the various human rights systems (VUB)Project
The VUB partner will undertake a case study that examines how the same goal – protecting indigenous peoples’ rights to lands and resources – is pursued by different means in different human rights mechanisms and how indigenous peoples are trying to move the human rights systems to be more responsive to their claims. The choice of the theme moreover leads to a focus on the contentious issue of collective rights. While collective rights are embraced by the African regional system, ‘Western’ human rights approaches shy away from them. Yet in the area of indigenous rights, the Inter-American system is experiencing the impact of global – collective rights-oriented – norms on the interpretation of individual rights at the regional level.