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Journal Cover International Journal of Human Rights and Constitutional Studies
  [11 followers]  Follow
   Hybrid Journal Hybrid journal (It can contain Open Access articles)
   ISSN (Print) 2050-103X - ISSN (Online) 2050-1048
   Published by Inderscience Publishers Homepage  [417 journals]
  • The concept of 'public space of fundamental rights' (public space
           and the exercise of fundamental rights)
    • Authors: Yoshiyuki Yabuuchi, Takayuki Kawaura
      Pages: 183 - 198
      Abstract: The expression 'public space of fundamental rights' refers to public space as related to the exercise of fundamental rights. The present paper aims to identify what is 'public space'; the underlying thesis is that, in democracy, fundamental rights require a public space in which they can be expressed, since exercising them creates a public sphere in whose absence the democratic system would not be recognisable. The public space of fundamental rights is therefore not only a physical space, but also - and especially in the public sphere - the bundle of communications created by the exercise of fundamental rights within the community. Delimiting physical and virtual public spaces is not an administrative but a constitutional matter, something that also applies to the regulation of what can and cannot be done in it. The present paper studies from this perspective the crisis of public space and the new public spaces.
      Keywords: public space; public sphere; mass media; fundamental rights; democracy; new public spaces
      Citation: International Journal of Human Rights and Constitutional Studies, Vol. 4, No. 3 (2016) pp. 183 - 198
      PubDate: 2016-10-06T23:20:50-05:00
      DOI: 10.1504/IJHRCS.2016.079648
      Issue No: Vol. 4, No. 3 (2016)
  • Democratic citizenship and the limits to immigrants' multicultural
           exercise of fundamental rights in public spaces: the case of Spain
    • Authors: Yoshiyuki Yabuuchi, Takayuki Kawaura
      Pages: 199 - 219
      Abstract: The following paper deals with the well-known issues of citizenship and multiculturalism from the point of view of democratic constitutional law. It is argued that democratic citizenship plays a role as a promoter of and at the same time as a source of limitations on the development of multiculturalism. On the one hand, the democratisation of citizenship makes it the proper constitutional tool for enhancing multiculturalism through its culturally open safeguarding of fundamental rights. But on the other hand, the need to preserve the democratic (but still mostly national) character of citizenship implies a certain limitation of the scope of multiculturalism in four different ways: the liberal democratic understanding of fundamental rights that flows from constitutional texts; the provision of compulsory civic-democratic education in schools; the political and cultural requirements established for naturalisation; and finally the definition of the fundamental rights agenda by the cultural majority that is embodied in a democratic framework of government.
      Keywords: constitutional law; democracy; democratic citizenship; nationality; right to education; multiculturalism; fundamental rights; naturalisation; constitutional democracy; immigrants; public spaces; Spain; constitutional texts; civic-democratic education; schools;
      Citation: International Journal of Human Rights and Constitutional Studies, Vol. 4, No. 3 (2016) pp. 199 - 219
      PubDate: 2016-10-06T23:20:50-05:00
      DOI: 10.1504/IJHRCS.2016.079637
      Issue No: Vol. 4, No. 3 (2016)
  • The concept of living together as a limit to freedom of religion or belief
           in ECtHR's S.A.S. v France
    • Authors: Yoshiyuki Yabuuchi, Takayuki Kawaura
      Pages: 220 - 239
      Abstract: This work is a critical study of the decision handed down by the European Court of Human Rights in the case of S.A.S. v France, especially the controversial use by the court of the concept of minimum requirements of living together (vivre ensemble) as an acceptable limit on the freedom of religion and belief with regard to the convention. This is compared with the intemperate use that the ECtHR has been making in this area of the doctrine of national margin of appreciation. The author reaches the conclusion that in this decision, as in others, political constraints have had a significant weight, over and above strictly legal arguments, leading to very poor protection of those fundamental rights involved.
      Keywords: S.A.S. v France; Islamic veil; Islamic headscarf; Islam; Burqa banning; freedom of religion; freedom of belief; European case law; national margin of appreciation; living together; European Court of Human Rights; ECHR; vivre ensemble; political constraints; legal
      Citation: International Journal of Human Rights and Constitutional Studies, Vol. 4, No. 3 (2016) pp. 220 - 239
      PubDate: 2016-10-06T23:20:50-05:00
      DOI: 10.1504/IJHRCS.2016.079647
      Issue No: Vol. 4, No. 3 (2016)
  • Regulatory powers on the 'physical' public space, in particular of
           the Spanish local authorities
    • Authors: Yoshiyuki Yabuuchi, Takayuki Kawaura
      Pages: 240 - 255
      Abstract: Beyond the concept of public property designated for a public use or for the provision of a public service, public space is, above all, a place for exercising fundamental rights. The planning of that space, which is the territorial dimension of democracy, is a responsibility - within their respective competences - of the central government, the autonomous communities and also the municipalities through municipal bylaws that, even though they are not regulations pursuant to an act, are subject to the principle of legal reservation if they aim to ensure social coexistence, guaranteeing the possibility for all citizens to enjoy public space while they exercise their rights in a respectful way towards the rights of the others.
      Keywords: public space; public domain; decentralised state; competences; fundamental rights; legal reservation; municipal bylaws; social coexistence; regulatory powers; regulation; Spain; local authorities; democracy
      Citation: International Journal of Human Rights and Constitutional Studies, Vol. 4, No. 3 (2016) pp. 240 - 255
      PubDate: 2016-10-06T23:20:50-05:00
      DOI: 10.1504/IJHRCS.2016.079643
      Issue No: Vol. 4, No. 3 (2016)
  • Monetising constitutional rights: the award of damages in
           constitutional claims
    • Authors: Yoshiyuki Yabuuchi, Takayuki Kawaura
      Pages: 256 - 275
      Abstract: This article aims to chart the development of the law on the award of damages as a form of relief for the breach of constitutional rights. First it will examine the jurisprudence of the Judicial Committee of the Privy Council in relation to the forms of redress under the Constitution, ranging from the seminal case of Maharaj v Attorney General to the recent decision in Alleyne v Attorney General. The Privy Council jurisprudence can be analysed along a spectrum ranging from cautious gradualism on the lower end, routine dispensation towards the middle and finally tapering off with restrained awards in recent times. The award of damages under Caribbean constitutions can be useful contrasted with the approach of courts in the UK to awards of damages under the Human Rights Act 1998. The Privy Council appears much more willing to grant damages in constitutional claims than their English counterparts in cases of alleged human rights violations. The article will end with a panoramic overview of the case law of other jurisdictions, most notably from New Zealand, South Africa and Canada in an effort to determine to what extent those jurisdictions ascribe to the Privy Council or the UK approach to damages.
      Keywords: constitutional law; redress; Caribbean constitutions; damages; Judicial Committee of the Privy Council; Maharaj v Attorney General; Alleyne v Attorney General; human rights violations; UK Supreme Court; Human Rights Act 1; monetisation; constitutional rights; da
      Citation: International Journal of Human Rights and Constitutional Studies, Vol. 4, No. 3 (2016) pp. 256 - 275
      PubDate: 2016-10-06T23:20:50-05:00
      DOI: 10.1504/IJHRCS.2016.079632
      Issue No: Vol. 4, No. 3 (2016)
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