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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

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.
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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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Helle Krunke and Martin Scheinin

Professor Helle Krunke, Head of Centre for Comparative and European Constitutional Studies, University of Copenhagen, and Professor Martin Scheinin, International Law and Human Rights, EUI. The introduction sets out the purpose of the book namely to discuss the challenges which courts face for instance as a result of counter-terrorism measures, the surveillance state and democratic transitions with a specific emphasis on diversity both geographical and institutional. Another aim of the book is to facilitate a dialogue between judges in different settings (national, regional and international courts) around the world and academics. This way the book actively engages in and promotes the process of constitutional dialogue. Chapter 1 focusses on some common themes which transgress the different book sections and chapters: Judicial independence, the role of the public opinion and court legitimacy, interpretative techniques, hierarchy of norms, difficulties of transition and the judiciary in the specific context – from exceptionalism to common standards?