Advocates in the Enforcement and Development of Human Rights
Rassegna Forense, Vol. 4, pp. 801-808, 2010
11 Pages Posted: 18 Sep 2011
Date Written: September 16, 2011
We are seeing the full impact of due process standards as part of modern rule of law and stato di diritto ideals. One dimension is the new Europe of rights challenging old dichotomies of the national and the supranational, and of the public and the private. The interest of the unprivileged and the privileged in well defined and enforceable rights are meeting at the crossroads of predictability and social justice. This presents a great professional challenge to advocates. How can one develop what is a new practice area, not only for the advocate representing traditionally underprivileged such as employees, criminal defendants, refugees and minorities, but also the commercial advocate at the other end of the scale of privilege.The role of individual advocates in cases is both in obtaining remedies and developing the law. Behind every “overreaching” new rights pronouncement by a court, there are the submissions of the advocate in the case. In judicial lawmaking, the role of the advocate is central. A court will depend on the arguments presented to it. In giving full effect to due process standards, courts and advocates are very much on their own. Legal doctrine is struggling to keep up, and the same applies to law making and parliamentary scrutiny. Neither offer much assistance to the advocates preparing their cases.
I have three areas I want to discuss with you. The first is how advocates bring cases from their own countries to international and European courts and other human rights bodies. The second is how advocates make use of European and UN sources of authority in support of the cases before national courts. A third is the role advocates play as part of the wider civil society, in human rights monitoring, assistance to the bars of other countries, bringing cases from other countries, or assisting with this. At the end, I will add some points about the UN Working Group on Arbitrary Detention of which I am a member.
Keywords: Due Process, Rule of Law, Stato di Diritto Ideals, Europe of Rights, Human Rights, UN Working Group on Arbitrary Detention
Suggested Citation: Suggested Citation