Chapter introduction

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2.2.1 Human Rights in Criminal Justice
International protections of human rights have increased dramatically in the last century, sufficiently universal to rise to the level of an internationally recognized general principle. This study uses an inductive method of inquiry to identify internationally protected human rights and the existence of their counterparts in national constitutions. Both international instruments" and domestic constitutions' provide the data for comparison. It sets out the instruments used in the study and how they are applied in the inductive method of comparative research. The rights found in the instruments evidence their international recognition, while their counterparts in the national constitutions evidence national legal recognition. The congruence of both indicates the existence of a "general principle." Clearly, international instruments and national constitutions do not use identical language and drafting styles, if for no other reason than the fact that national constitutions reflect different legal systems and drafting approaches as well as different cultures and languages. Precisely because there are so many reasons to warrant linguistic and theoretical diversity, however, the existence of strong similarities is more convincing evidence that these rights are contained in "general principles" of law. It should be added that the practices of states in applying these commonly recognized fights vary significantly. This study uses a purely empirical model of searching for repetition and similarity among the various rights to prove that similar rights evidence of that right. At present, some protections for the individual within the criminal process have risen to the level of "general principles" of international law, while other protections have been incorporated into international instruments which criminalize the violations of the protected right. It has grown out of the recognition that traditional sovereignty-based arguments against the recognition or application of internationally protected human rights are no longer valid because of the vast array of applicable treaties, the customary practices of states, and the legally binding nature of general principles of international law which, in this context, represent the convergence of treaties, customs, national legislation, and jus cogens. Therefore, international human rights law can penetrate into areas that in the past have been deemed to be wholly within the realm of domestic law. It will review issues concerning national sovereignty and its relation to international legal norms. The discussion will lay the foundation for the determination of whether a certain right is individuals must be protected from certain depredations against their person, and that international laws are needed to protect people from policies which ultimately affect the global community. The present discussion will focus on the protections afforded persons in the context of the administration of criminal justice. These safeguards are important protections against abuses of power which affect the life, liberty, and physical integrity of individuals. Without these protections and limitations on the potential abusive exercise of power by states, democracy could not exist. Thus, there is an inseparable link between the protection of individual and collective human rights and democracy. 3

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