Protection of fundamental human rights : a personal grievance or a public concern?

Abstract

Fundamental Human Rights have come to form an essential part of the very existence of the Liberal Democratic State. Especially with the setting up of international human rights instruments such as the European Convention on Human Rights and the United Nations Declaration of Human Rights, human rights have become the lingua franca of inter-state relations. When we speak of rights we are essentially speaking of a relationship between two parties: the individual who is claiming the right and the State, which must not only refrain from interfering with the individual‟s rights, but is bound by the Doctrine of Positive Obligations to guarantee the enjoyment of these rights. The State, however, is also the transgressor of rights, giving rise to a paradoxical reality. In particular this dissertation deals with the question of whose responsibility is it to protect fundamental rights; whether it is solely an individual effort, or whether it is more of a collective concern. Arguing in favour of the existence of a duty on the part of the State, especially through the Courts, to assist the aggrieved individual in his journey towards redress of his dignity, the methodologies and approaches adopted by the European Court of Human Rights and the Maltese Courts are analyzed. Reference is also made to the development of a distinct provictima approach in the case-law of the Supreme Court of India. This dissertation aims at highlighting some of the areas where the protective structures seem to be still striving to strike the adequate balance, and in so doing, suggest possible courses of action to enhance the procurement of full protection to the fundamental rights of every individual.