private enforcement mechanisms. The access to justice narrative requires a caseby-case analysis or the support of other justificatory narratives if it is to provide an
explanation for private enforcement.
Unlike sovereignty or private autonomy, access to justice – in the meaning of the
human rights discourse it reflects – is mainly a product of the twentieth century,
although the roots of inalienable universal rights can be traced back to the Age of
Enlightenment. However, the human rights rhetoric has gained unparalleled
recognition and significance in the aftermath of World War II, when the need for
human rights was acknowledged within the global community and this consensus
translated into the first expressions of universal human rights. This increasing
significance of human rights has been made possible by sovereignty-based international Conventions and the positivisation of ethical discourse into national legislation, which in relation to dispute resolution demonstrates the importance of the
connection between law and state in providing criteria for fairness.
The first of these expressions, the primus motor for legally binding treaties in
the future, is the Universal Declaration of Human Rights adopted by the UN
General Assembly in 1948. The General Assembly later adopted two significant,
binding Conventions on human rights: the International Covenant on Civil and
Political Rights (ICCPR) and the International Covenant on Economic, Social
and Cultural Rights were both adopted in 1966 and came into force in 1976. The
ICCPR is monitored by the Human Rights Committee, which also examines
individual petitions in infringement situations and provides an authoritative,
although non-binding, interpretation of the treaty.
1 The most important treaty in
the European context is the Convention for the Protection of Human Rights and
Fundamental Freedoms (ECHR) drafted by the Council of Europe in 1950 and in
force since 1953. The treaty established the European Court of Human Rights,
which examines petitions from both state and individual parties and in infringement situations may order the state to pay damages to the injured party. The
ECHR is a living document, meaning that its interpretation is further dynamically
developed in the court’s case law and is thus susceptible to societal change.
This turn to human rights has taken place pronouncedly in political sciences
and within law. Within the legal system human rights have run through most
fields of law and the perspective has become focal for legal research, to the point
of giving rise to criticism of ‘human rights fundamentalism’.
2 Within procedural
law, the human rights perspective has adopted the role of a sui generis legal
principle: access to justice. However, the concept of access to justice is not
unambiguous and is open to interpretation.
It is noteworthy that the human rights rhetoric is usually applied in connection
with the constitutive sovereignty and consent narratives, where references to
fairness are used to explain the supremacy of given dispute resolution models.
For example, the alternative dispute resolution (ADR) movement has particularly
emphasised the access to justice perspective; informal mediation is better for
providing such access to justice, the ideology suggests. On the other side, state
litigation can be defended based on the same argument – that it provides better
safeguards for respecting due process and thus it, in fact, is better. The fact that
160 Three quests for justification
explanation for private enforcement.
Unlike sovereignty or private autonomy, access to justice – in the meaning of the
human rights discourse it reflects – is mainly a product of the twentieth century,
although the roots of inalienable universal rights can be traced back to the Age of
Enlightenment. However, the human rights rhetoric has gained unparalleled
recognition and significance in the aftermath of World War II, when the need for
human rights was acknowledged within the global community and this consensus
translated into the first expressions of universal human rights. This increasing
significance of human rights has been made possible by sovereignty-based international Conventions and the positivisation of ethical discourse into national legislation, which in relation to dispute resolution demonstrates the importance of the
connection between law and state in providing criteria for fairness.
The first of these expressions, the primus motor for legally binding treaties in
the future, is the Universal Declaration of Human Rights adopted by the UN
General Assembly in 1948. The General Assembly later adopted two significant,
binding Conventions on human rights: the International Covenant on Civil and
Political Rights (ICCPR) and the International Covenant on Economic, Social
and Cultural Rights were both adopted in 1966 and came into force in 1976. The
ICCPR is monitored by the Human Rights Committee, which also examines
individual petitions in infringement situations and provides an authoritative,
although non-binding, interpretation of the treaty.
1 The most important treaty in
the European context is the Convention for the Protection of Human Rights and
Fundamental Freedoms (ECHR) drafted by the Council of Europe in 1950 and in
force since 1953. The treaty established the European Court of Human Rights,
which examines petitions from both state and individual parties and in infringement situations may order the state to pay damages to the injured party. The
ECHR is a living document, meaning that its interpretation is further dynamically
developed in the court’s case law and is thus susceptible to societal change.
This turn to human rights has taken place pronouncedly in political sciences
and within law. Within the legal system human rights have run through most
fields of law and the perspective has become focal for legal research, to the point
of giving rise to criticism of ‘human rights fundamentalism’.
2 Within procedural
law, the human rights perspective has adopted the role of a sui generis legal
principle: access to justice. However, the concept of access to justice is not
unambiguous and is open to interpretation.
It is noteworthy that the human rights rhetoric is usually applied in connection
with the constitutive sovereignty and consent narratives, where references to
fairness are used to explain the supremacy of given dispute resolution models.
For example, the alternative dispute resolution (ADR) movement has particularly
emphasised the access to justice perspective; informal mediation is better for
providing such access to justice, the ideology suggests. On the other side, state
litigation can be defended based on the same argument – that it provides better
safeguards for respecting due process and thus it, in fact, is better. The fact that
160 Three quests for justification