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Juha Lavapuro, Tuomas Ojanen and Martin Scheinin

Chapter 5 on Finland (‘Intermediate constitutional review in Finland: promising in theory, problematic in practice’) offers the perspective of a Nordic system. Although its legal culture is based on the civil law tradition, the Finnish system arguably lends itself to relevant parallels with the new Commonwealth model of constitutionalism. Authors Juha Lavapuro, Tuomas Ojanen and Martin Scheinin explain the developments—notably Finland joining the EU and the Strasbourg system as well as other domestic constitutional reforms—which resulted in a shift from a centralized legislative-based constitutionalism to an institutionally pluralist and predominantly rights-based paradigm. However, they also argue that this shift has fallen short of materializing into fully-fledged constitutionalism. In that respect, the Finnish system stands as a ‘peculiar example of intermediate constitutionalism’ characterized by a tension between old doctrines and institutions which emphasize the legislative supremacy of Parliament—with an intact prohibition of judicial review of legislation—and a new paradigm which underline the importance of rights and the role of courts. The authors then question the extent to which the Finnish system offers a genuine third alternative of constitutional review. Indeed, the transformation of the system has resulted in institutional confusion—with the main constitutional actors missing a clear understanding of their role—rather than led to a meaningful constitutional dialogue between the courts and the legislature.
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Martin Scheinin

The Human Rights Committee acting under the International Covenant on Civil and Political Rights has been one of the main fora for litigation related to the rights of indigenous peoples. The Committee has developed a four-part test to determine whether an interference in the life of an indigenous group, including in its traditional means of livelihood, constitutes a violation of article 27 of the Covenant, protecting the right of the members of a minority to enjoy their own culture. In the view of the author, however, the Committee has in practice failed to make full use of its own test and has instead often adopted a deferential standard in relation to any explanations received from the respondent state. As a consequence, the Committee’s case law has become inconsistent and unsatisfactory. In his rewriting of the case of Paadar et al. v Finland, decided by the Committee in 2014, the author demonstrates that the Committee’s own test is viable and will need to be integrated with the recognition of indigenous peoples as beneficiaries of the right of all peoples to self-determination and with the notion of ‘free, prior and informed consent’ as embodied in the 2007 United Nations Declaration on the Rights of Indigenous Peoples.

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Martin Scheinin

Terrorism and human rights has been the subject of increased attention since the events of 11th September 2001. Drawing on works that were originally published between 2002 and 2011, this authoritative research review covers a variety of topics, including detention and extraordinary rendition, targeted killings, freedom of expression, privacy and terrorist listings.
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Martin Scheinin

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Martin Scheinin

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Martin Scheinin

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Martin Scheinin

This chapter addresses one of the most important questions for the methodology of human rights law, both as a social practice and as a scholarly discipline, namely how to interpret the provisions of human rights treaties, many of which are seemingly vague or open-ended as texts. The author defends the view that there is a proper methodology for legal interpretation, understood as giving specific and concrete meaning to those texts. Even if different scholars or different lawyers may sometimes end up defending differing interpretations, the interpretive activity of each of them can be assessed for the correctness of its methodology and ultimately also for the correctness of the answer arrived at.

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Martin Scheinin

Martin Scheinin, Professor of International Law and Human Rights. This chapter brings together the themes related to surveillance and counter-terrorism by discussing the experiences of the role of the judiciary in respect of counter-terrorism laws in various parts of the world and the expanding use of new surveillance technologies. The main contribution by the author is in a discussion of ‘the pull of deferentialism’ through a presentation and critique of five different forms of judicial deference encountered in the fields of counter-terrorism and surveillance. The five factors that may contribute to an unjustified degree of judicial deference are related to arguments based on national security, to the role of technology and technological expertise, to the secrecy surrounding both counter-terrorism and surveillance measures, to the argument of the primacy of political legitimacy and finally, in particular at international or regional courts, to the argument of national sovereignty. The author calls upon the judiciary to act as guardians of constitutionalism and human rights also in issues of terrorism and surveillance. With reference to recent European research on the law, ethics and efficiency of surveillance technologies, the author proposes that a rational and structured framework for proportionality assessments by the judiciary can be established through relying on multidisciplinary expertise, including technological expertise, and an effort towards the quantification of factors such as effectiveness and efficiency of technology, and of human rights intrusion. These are essential tools in countering the pull of deferentialism that threatens to erode the particular responsibility of judges in matters where it is worst needed in the times of terrorism and surveillance.