LLB (HONOURS)/BA (HONS) COMBINED STUDIES PROGRAMME IN LAW

NOTES ON TERM 1 READING AND PREPARATION FOR HUMAN RIGHTS LAW RESIT/DEFERRED ASSESSMENT 2 SESSION 2009-10

RESIT/DEFERRED COURSEWORK REQUIREMENTS

ACADEMIC SESSION 2009/2010

TUTOR: Angela Laycock
ALL RESIT/DEFERRED COURSEWORK WILL BE RETRIEVED AS AN EXAMINATION DURING ASSESSMENT WEEK
HEADER SHEET NUMBER:165327

ASSESSMENT DETAILS:

/ This piece of work is for Assessment 2 retrieval.
A 1 hour 30 minute unseen examination to be sat as part of the resit/deferred examination timetable
(Please see preparation advice sheet posted with these instructions)

COURSE CODE

/ Law 1077

COURSE TITLE

/ Human Rights Law

PURPOSE OF ASSESSMENT 2 GOBBETS

  • To permit the student to demonstrate, an “expertise in the operation of Human Rights Law” through knowledge of Human Rights Discourses, an understanding of legal theory, the operation of international human rights law, in particular the Strasbourg system.
  • Gobbets are chosen to provide each student with maximum opportunity to pursue his/her own line of enquiry and to develop an expertise in specific fields of Human Rights Law in which he/she has a particular interest
  • Each gobbetanswer must include:
  • An explanation of the text – key terms, theories, discourses, themes, institutions etc
  • An analysis of the argument put forward through application to examples of the operation of human rights law.
  • Below is an annotated example of a gobbet and the sort of commentary to which it might give rise:
  • “82...The Government have argued that in this sensitive area [AM1]eligibility for marriage under national law should be left to the domestic courts within the State’s margin of appreciation,[AM2] adverting to the potential impact on already existing marriages in which a transsexual is a partner. It appears however from the opinions of the majority of the Court of Appeal judgment in Bellinger v Bellinger[AM3]that the domestic courts tend to the view that the matter is best handled by the legislature, [AM4]while the governments have no present intention to introduce legislation.
  • 83. It may be noted from the materials submitted by Liberty that though [AM5]there is widespread acceptance of the marriage of transsexuals, fewer countries permit the marriage of transsexuals in their assigned gender than recognise the change of gender itself[AM6]. The Court is not persuaded however that this supports an argument for leaving the matter entirely to the Contracting States as being within their margin of appreciation. This would be tantamount to finding that the range of options open to a Contracting State included an effective bar on any exercise of the right to marry[AM7]…[AM8]
  • 84. The Court concludes that there has been a breach of Article 12 of the Convention in the present case.”[AM9]

CONSOLIDATING A TOPIC

Suggested Procedure

  • Use your lecture notes as a starting point for each study
  • Make the suggested readings on your programme the basis of your study and ensure that you understand them
  • Use the Human Rights Law Session 2009-10 Key Instruments Booklet together with any other examples provided as material to support a viewpoint or on which to test ideas

Key Points to consider when revising specific topics

  1. DISCOURSES IN HUMAN RIGHTS
  • First generation, second generation and third generation rights: origins of concept; definitions; identification of rights in statutes and examples of them in operation
  • Terminology: positive and negative rights
  • advantages and disadvantages of each for protecting human rights
  • The legal theoretical perspectives that inform these discourses; Human Rights instruments influenced by the respective discourses (see particularly instrument preambles)
  • Human dignity and equality as an emerging global discourse
  1. JURISPRUDENTIAL PERSPECTIVES AND HUMAN RIGHTS
  • Three Key Perspectives in Human Rights Law
  1. Law as rules: an instrument of change/civilisation
  2. Law as ideology - a tool to legitimise the existing social order
  3. Law in context: a variety of systems which regulate society; Legal Pluralism
  • Law as rules
  • Natural Law and Positivism: Hart-Fuller debate and the grudge informer cases
  • Legal Liberalism
  • Theories of Justice
  • Law as ideology
  • Marxist principles: Economism/crude materialism; historicism; law in a democratic society
  • Law in context
  • Law is more than statute and case law; it is the structures, mechanisms, customs and practices by which society operates
  • Legal pluralism
  • Public Interest Litigation
  • Bhopal
  1. ORIGINS OF HUMAN RIGHTS MOVEMENT AND SOURCES OF HUMAN RIGHTS LAW
  • The legacy of World War II
  • The significance of the Nuremberg Judgment in international law
  • The circumstances, content & merits of the Universal Declaration of Human Rights (UDHR)
  • The International Covenants
  • Origins and merits of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (ECHR)
  1. INTERNATIONAL LAW AND HUMAN RIGHTS
  • Sources International Human Rights Law
  • Recurrent Themes in International Human rights Law: universalism & regionalism; public/private divide
  • The operation of international human rights law: negotiation of treaties; signature; ratification; reservation; derogation; problems of enforcement
  • UDHR and International Covenants and ECHR
  • Higgins’ analysis of international human rights law as a process
  • Bhopal
  1. EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS 1950
  • Origins and formation,
  • aims and the mechanisms incorporated in the ECHR to achieve these aims;
  • an example of how international human rights law operates (signature, reservation, derogation, Protocols);
  • the provisions of the ECHR;
  • original optional Articles and their significance;
  • enforcement mechanisms and procedure before and after Protocol 11; Protocol 14
  • strengths and weaknesses of the ECHR
  1. EUROPEAN COURT OF HUMAN RIGHTS (ECtHR)
  • The ECtHR's topic requires a close examination of how the ECtHR operates through the example of the judgments of the transsexual cases.
  • doctrine of margin of appreciation (Rees v UK, Cossey vUK and B v France)
  • how the judgments of the domestic courts may affect the ECtHR and vice versa (Close reading of Price v UK chapter and Bellinger v Bellinger (HL & CA judgments) and Goodwin v UK necessary here).

HUMAN RIGHTS LAW 2009-10 (RESIT/DEFERRED)

ASSESSMENT 2: INSTITUTIONS, DISCOURSES AND JURISPRUDENCE IN INTERNATIONAL AND UK LAW: ADDITIONAL GUIDELINES

The Paper

  • Assessment 2 is a straight forward in-class unseen closed examination providing you with the opportunity to demonstrate your knowledge and understanding of the topics and skills covered in Term 1.
  • Make sure you comment on three gobbets. Only answering on two will cut your mark potential by a third.

Gobbets

ANSWERING GOBBET QUESTIONS

‘Gobbets’ are similar to problem questions in that they provide you with a text which you must explain and through doing this you demonstrate your knowledge of the area of law.

Your approach to answering a gobbet question should, therefore, be similar to answering a problem question (See advice given and example in ‘Notes on Assessment 2’).

As for any of your other Law examination,

  • You will need to support what you argue with examples from the key instruments, case law or illustrations taken from your reading.

(See separate document of example extracts showing good practice in answering questions on ‘Human Rights Discourse’ and the explanation as to why they are good.)

  • Key instruments will be provided for your use during the examination
  • As with problem questions, you cannot just write down a prepared answer but you must see how what you have learnt fits the question.
  • Quotations should be referenced in brackets.
  • Ideas/arguments that are not your own should also be referenced

PREPARATION FOR GOBBET QUESTIONS

  • Follow the preparation instructions in ‘Notes on revising for Assessment 2’.
  • The bullet points are an indication of the key content of each topic:
  • The gobbet question could be general or could focus on one of these areas. (Again, similar to a problem question)
  • Your handouts, including article and presentation examples; and workshop and seminar notes, will give you information on these areas
  • The passages in bold in the reading list are the key passages which will help to provide you with the information you will need for each of these content areas.
  • The passages in ordinary type will give additional information.
  • Wherever possible, make use of the Key Instruments, case law or other documentary evidence to support your argument.

AML

22/10/2018

[AM1]Marriage as a sacred myth – see Katherine O’Donovan

[AM2]Explanation of doctrine of margin of appreciation using examples from transsexual cases, in particular contrast between Rees v UK, Cossey v UK and B v France

[AM3]Provides an opportunity for candidate to discuss the interaction between domestic courts and ECtHR through Bellinger and Goodwin

[AM4]Issue of sovereignty, in particular the doctrine of parliamentary supremacy in the UK which affects the implementation of ECtHR’s decisions, - even with the incorporation of most rights into the Human Rights Act 1998, the courts can only issue a declaration of incompatibility.

[AM5]Contribution of NGOs to ECtHR’s decisions and jurisprudence

[AM6]Example of margin of appreciation in practice

[AM7]Marriage as a limited right – balance between individual and needs of society

[AM8]Margin of appreciation

[AM9]Article 46 binds a contracting party to decisions of ECtHR when it is a party