scholarly journals The “Essence” of International Human Rights

2019 ◽  
Vol 20 (6) ◽  
pp. 924-939
Author(s):  
Pierre Thielbörger
Keyword(s):  
Human Rights ◽  
International Law ◽  
Fundamental Rights ◽  
International Human Rights Law ◽  
Political Rights ◽  
Eu Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Socioeconomic Rights ◽  
International Human

AbstractWhile the “essence” of EU fundamental rights has received much attention following the CJEU’s Schrems decision, the concept of “essence” remains much less examined in international human rights law. Nonetheless, a concept of “essence” for human rights can also be found in international law. This Article discusses different aspects of the “essence” concept in international human rights law, namely non-derogability, non-restrictability, and minimum core, in three steps. First, the Article looks at civil political rights and socioeconomic rights separately and identifies two different approaches to the concept of essence for each of the two categories: While for civil and political rights the concept of essence is mainly linked to the notions of non-derogability and non-restrictability, for socioeconomic rights, the concept refers mainly to the states’ obligation to guarantee an essential level of protection independent of their resource limitations. Second, the Article continues by reading the two approaches together and identifies certain elements of an overarching “essence” concept. Finally, the Article discusses the relationship between the CJEU’s “essence” jurisprudence and the related concepts in international law and concludes with two theses: First, international law deserves more attention when reflecting on the EU’s concept of essence. It equally employs concepts of “essence” and also informs the development and interpretation of EU law. Second, when engaging with the question of whether the EU law should draw lessons from its international counterpart on the notion of “essence,” one must contemplate drawbacks for EU law that the concept has presented for international law.

Sovereign Rights of the State and the Scope of their Implementation in the Context of Development of the International Human Rights Law

2020 ◽  
Vol 11 (1) ◽  
pp. 164
Author(s):  
Iryna PROTSENKO ◽  
Кostiantyn SAVCHUK
Keyword(s):  
Human Rights ◽  
International Law ◽  
The State ◽  
Fundamental Rights ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Adequate Treatment ◽  
International Human ◽  
The Right

In the contemporary science of international law, the state sovereignty issue lacks adequate treatment. In particular, the list and essence of sovereign rights and duties of the state are not defined, although these are referred to in some international legal instruments and resolutions of international courts and arbitrations. In addition, particular circumstances are being under development, which require if not precise outlining of the catalogue of fundamental rights of states, then at least determining the essence of some of these rights and the scope of their implementation. It goes about developing the practice to limit specific sovereign rights of the state to ensure the implementation of human rights (notably, the ones not directly related to the respective rights of the state). In this very way, the state is limited in its right to determine its own immigration policy. The fact is that the European Court of Human Rights (ECtHR) has ruled in some of its judgments that by implementing this right, the state violates the right to respect for private and family life provided for by the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (ECHR). This resulted in ECtHR`s practice to be somewhat considered in the draft articles on the expulsion of aliens elaborated by the International Law Commission (ILC) in 2014. The examples from ECtHR`s practice analyzed in this paper provide the basis for the conclusion that the development of the International Human Rights Law is gradually narrowing the scope of the internal sovereign rights of the state.

The Idea of International Human Rights Law

2019 ◽  
Author(s):  
Steven Wheatley
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Moral Concept ◽  
Customary International Law ◽  
Human Rights Treaties ◽  
International Human ◽  
Fragmentation Of International Law

International Human Rights Law has emerged as an academic subject in its own right, separate from, but still related to, International Law. This book explains the distinctive nature of the new discipline by examining the influence of the moral concept of human rights on general international law. Rather than make use of moral philosophy or political theory, the work explains the term ‘human rights’ by examining its usage in international law practice, on the understanding that words are given meaning through their use. Relying on complexity theory to make sense of the legal practice in the United Nations, the core human rights treaties, and customary international law, The Idea of International Human Rights Law shows how a moral concept of human rights emerged, and then influenced the international law doctrine and practice on human rights, a fact that explains the fragmentation of international law and the special nature of International Human Rights Law.

scholarly journals Governmental human rights focal points in federal contexts: The implementation of the Istanbul convention in Switzerland as a case study

2021 ◽  
pp. 092405192110169
Author(s):  
Matthieu Niederhauser
Keyword(s):  
Domestic Violence ◽  
Human Rights ◽  
International Law ◽  
International Human Rights Law ◽  
Focal Points ◽  
Human Rights Law ◽  
International Human Rights ◽  
Federal States ◽  
International Human

The implementation of international human rights law in federal States is an underexplored process. Subnational entities regularly enjoy a degree of sovereignty, which raises questions such as whether they implement obligations of international law and how the federal level may ensure that implementation takes place at the subnational level. This article aims to answer these questions, using the implementation of the Convention on Preventing and Combating Violence against Women and Domestic Violence (Convention) in Switzerland as a case study. To implement the Convention at the cantonal level, federal actors decided to use networks of civil servants in charge of domestic violence issues, who act as governmental human rights focal points (GHRFPs). This article is based on original empirical data, on 25 interviews with State officials who participate in this implementation. The findings show how complex GHRFPs networks work in practice to implement the Convention and highlight the role played by numerous non-legal State actors in this process. As a result, the article argues that international human rights law implementation becomes more diversified both within and across federal States.

Judgment of the Supreme Court of Canada of February 28, 2020, on Nevsun v. Araya: a “quiet revolution” in the assessment of the status of corporations under public international law?

2021 ◽  
Vol 11 (2) ◽  
pp. 25-39
Author(s):  
Vera Rusinova ◽  
Olga Ganina
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
International Law ◽  
Supreme Court Of Canada ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Public International Law ◽  
The Supreme Court ◽  
International Human

The article analyses the Judgment of the Supreme Court of Canada on the Nevsun v. Araya case, which deals with the severe violations of human rights, including slavery and forced labor with respect of the workers of Eritrean mines owned by a Canadian company “Nevsun”. By a 5 to 4 majority, the court concluded that litigants can seek compensation for the violations of international customs committed by a company. This decision is underpinned by the tenets that international customs form a part of Canadian common law, companies can bear responsibility for violations of International Human Rights Law, and under ubi jus ibi remedium principle plaintiffs have a right to receive compensation under national law. Being a commentary to this judgment the article focuses its analysis on an issue that is of a key character for Public International Law, namely on the tenet that international customs impose obligations to respect human rights on companies and they can be called for responsibility for these violations. This conclusion is revolutionary in the part in which it shifts the perception of the companies’ legal status under International Law. The court’s approach is critically assessed against its well-groundness and correspondence to the current stage of International law. In particular, the authors discuss, whether the legal stance on the Supreme Court of Canada, under which companies can bear responsibility for violations of International Human Rights Law is a justified necessity or a head start.

scholarly journals Rescuing Asylum-Seeker Stranded at Sea: Malaysia’s Duty under International Law

2018 ◽  
Vol 7 (3.30) ◽  
pp. 182
Author(s):  
Syafiq Sulaiman ◽  
Salawati Mat Basir ◽  
Mohd Zamre Mohd Zahir
Keyword(s):  
Human Rights ◽  
International Law ◽  
Asylum Seekers ◽  
Law Of The Sea ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Right To Life ◽  
International Human Rights ◽  
International Human ◽  
The Right

The protection of the right to life and the duty to rescue persons in distress at sea are the fundamental obligations under two specialized international law regimes which are the international human rights law and the law of the sea. These rules when read together form a strong protection of the human rights of the asylum-seekers stranded at sea. However, often states failed to honour this obligation for various reasons ranging from national security to economic reasons. This article will analyse Malaysia’s responsibilities as regards the right to life and the duty to rescue of these asylum-seekers. It will also identify the existing international and domestic legal framework relevant to the application of these obligations upon Malaysia and whether it has acted in breach of such obligations. The article then proceeded with suggestions for further improvement that Malaysia can adopt in order to better perform its obligations. This study is a pure doctrinal legal research which is qualitative in nature. The data used in this research is collected from library-based resources. These data were then analyzed by using methods of content analysis as well as critical analysis. The article found that Malaysia has a duty to protect the right to life under international human rights law. Additionally, Malaysia is also bound under the law of the sea to perform its duty to rescue. In view of Malaysia’s failure to perform these duties in two occasions in the past consequently had resulted in a violation of international law. Therefore, it is suggested that Malaysia should initiate a revision of its national laws and policies regarding treatment of asylum-seekers stranded at sea to be in line with Malaysia’s duty under international law. Besides, the Malaysian Maritime Enforcement Agency is call upon to comply with the international standards of treatment of persons in distress at sea which includes the asylum-seekers.  

scholarly journals Extraterritoriality of EU law and human rights after Lisbon: The case of trade and public procurement

2018 ◽  
Author(s):  
Samantha Velluti ◽  
Vassilis P. Tzevelekos
Keyword(s):  
Human Rights ◽  
Public Procurement ◽  
Legal Order ◽  
International Human Rights Law ◽  
Eu Law ◽  
Human Rights Law ◽  
Special Issue ◽  
International Human Rights ◽  
International Human ◽  
The Eu

The paper introduces the theme and topics of this Special Issue on the extraterritoriality of EU law and human rights in the fields of trade and public procurement since the entry into force of the 2009 Treaty of Lisbon. It briefly explores the meaning of extraterritoriality in international (human rights) law and the EU legal order highlighting the complexity of such notion in both legal systems. In so doing, it provides the context and focus of analysis of the collection of papers that make up this Special Issue, which addresses a number of topical questions concerning the extraterritorial conduct of the EU, as well as the extraterritorial effects of EU law in those specific fields, from the perspective of human rights.

scholarly journals Humanity and Human Rights: The Contours of International Law

2017 ◽  
Vol 12 (2) ◽  
Author(s):  
Eyassu Gayim
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Humanitarian Law ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Human Beings ◽  
Human Rights Law ◽  
International Human Rights ◽  
Law Of Nations ◽  
International Human

Laws regulate conducts by responding to social and political requirements. This holds true for the law of nations as well. Contemporary international law follows two separate tracks when it comes to regulating human rights and humanitarian questions. If international human rights law and international humanitarian law are intended to protect the dignity and worth of human beings, as it is often said, why follow separate tracks? Does humanity really exist? If it does, how does it relate to human rights? If the two are distinct, where do they converge? This article highlights these questions by revisiting the contours of international law.

Jurisdictional Immunities of the State for Serious Violations of International Human Rights Law or the Law of Armed Conflict

2013 ◽  
Vol 50 ◽  
pp. 243-287 ◽  
Author(s):  
Paul David Mora
Keyword(s):  
Human Rights ◽  
International Law ◽  
Armed Conflict ◽  
The State ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Customary International Law ◽  
Law Of Armed Conflict ◽  
International Human

SummaryIn its recent decision in Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening), the International Court of Justice (ICJ) held that Italy had failed to respect immunities enjoyed by Germany under international law when the Italian courts allowed civil actions to be brought against Germany for alleged violations of international human rights law (IHRL) and the law of armed conflict (LOAC) committed during the Second World War. This article evaluates the three arguments raised by Italy to justify its denial of immunity: first, that peremptory norms of international law prevail over international rules on jurisdictional immunities; second, that customary international law recognizes an exception to immunity for serious violations of IHRL or the LOAC; and third, that customary international law recognizes an exception to immunity for torts committed by foreign armed forces on the territory of the forum state in the course of an armed conflict. The author concludes that the ICJ was correct to find that none of these arguments deprived Germany of its right under international law to immunity from the civil jurisdiction of the Italian courts.

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