scholarly journals THE PRINCIPLE OF SYSTEMIC INTEGRATION IN HUMAN RIGHTS LAW

2017 ◽  
Vol 66 (3) ◽  
pp. 557-588 ◽  
Author(s):  
Adamantia Rachovitsa

AbstractInternational lawyers and courts consider the principle of systemic integration to be a potential answer to difficulties arising from the fragmentation of public international law. This article questions the application of this approach in the context of human rights treaties. It is argued, first, that in many instances, systemic integration raises serious interpretational and jurisdictional concerns and, second, that systemic integration may give rise to a less diverse international law.

Author(s):  
Steven Wheatley

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.


2021 ◽  
Vol 11 (2) ◽  
pp. 25-39
Author(s):  
Vera Rusinova ◽  
Olga Ganina

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.


Author(s):  
Daniel W. Hill, Jr.

The adoption by the United Nations of the Universal Declaration of Human Rights in 1948 marked the beginning of the modern international human rights regime. Since then the number of international treaties that protect human rights, as well as the number of internationally recognized rights, has greatly increased. The increasing number and scope of international treaties attests to the fact that advocates for human rights view treaties, which are legally binding in principle, as useful tools for promoting respect for the various rights identified in international law. Only recently have scholars begun to collect and systematically examine evidence concerning the effectiveness of human rights treaties. This new body of research is motivated by a question that has obvious normative import and policy relevance: do we have good evidence that the widespread adoption of international human rights law has had any meaningful impact on the level of respect that states exhibit for the rights articulated in international law? To date, this literature suggests three sources of variation in the effectiveness of human rights treaties: (1) variation in the domestic political and legal institutions that facilitate enforcement and compliance, (2) variation in the nature of the rights protected by different treaties and the nature of violations, and (3) variation in the strength of governments’ commitments to the UN treaty regime. All three sources of variation point to opportunities to advance our understanding of the conditions under which international human rights law can achieve its goals.


2017 ◽  
Vol 50 (3) ◽  
pp. 331-388 ◽  
Author(s):  
Barak Medina

The quarter-century anniversary of Israel's ratification of the major United Nations (UN) human rights treaties is an opportunity to revisit the formal and informal interaction between domestic and international Bills of Rights in Israel. This study reveals that the human rights conventions lack almost entirely a formal domestic legal status. The study identifies a minor shift in the scope of the Israeli Supreme Court's reference to international law, as the Court now cites international human rights law to justify decisions that a state action is unlawful, and not only to support findings that an action is valid. This shift may be the result of other reasons, for instance, a ‘radiation’ of the Court's relatively extensive use of international humanitarian law in reviewing state actions taken in the Occupied Territories. However, it may also reflect a perception of enhanced legitimacy of referring to international human rights law as a point of reference in human rights adjudication following ratification of the treaties.At the same time, the Court continues to avoid acknowledging incompatibility between domestic law and international law. It refers to the latter only to support its interpretation of Israeli constitutional law, as it did before the ratification. This article critically evaluates this practice. While international human rights law should not be binding at the domestic level, because of its lack of sufficient democratic legitimacy in Israel, it should serve as an essential benchmark. The Court may legitimise a human rights infringement that is unjustified according to international law, but such incompatibility requires an explicit justification. The Court, together with the legislature and the government, are required to engage critically with the non-binding norms set by the ratified UN human rights treaties.


2015 ◽  
Vol 109 (3) ◽  
pp. 534-550 ◽  
Author(s):  
Christopher McCrudden

Comparative international law promises to bring fresh attention to the similarities and differences in how international law is understood and approached at the domestic level. Comparative international human rights law applies this focus to similarities and differences in the ways that international human rights law is, for example, interpreted at the domestic level by courts.


2016 ◽  
Vol 29 (2) ◽  
pp. 343-364 ◽  
Author(s):  
VASSILIS P. TZEVELEKOS ◽  
LUCAS LIXINSKI

AbstractThe article argues that, by bringing a number of changes of systemic proportions in the order of international law, the internationalization of national constitutional human rights law has led to the ‘constitutionalization’ of international law. To build that argument, the paper first critically assesses the constitutionalization narrative. To that end it explains the reasons for its agnostic stance vis-à-vis the constitutionalization narrative and highlights the fact that international law has always contained some general, “constitutional” features that are particular to its systemic physiognomy. The article then explains how human rights law, as a special branch of international law, expands beyond the so-called humanization of international law narrative, acting as an important ingredient in a number of other narratives such as the constitutionalization of international law and the ones that are comparable to it, like legal pluralism and fragmentation. As to the systemic changes the internationalization of human rights has brought to the order of public international law, the examples given are those of collective enforcement at the decentralized level for the protection of common interests/values, sui generis normative hierarchy beyondjus cogensand the idea of the responsibility of states to act in a protective manner linked with the principle of due diligence and the so-called positive effect that human rights develop.


Vniversitas ◽  
2019 ◽  
Vol 68 (138) ◽  
Author(s):  
Robert Joseph-Blaise MacLean ◽  
Walter Arévalo Ramírez

While International Humanitarian, Refugee and Human Rights Law are frequently resorted to in the search for remedies for human rights violations, the Public International Law remedy of Diplomatic Protection is often forgotten, perhaps because there are few cases fitting the legal requirements for that remedy. The Venezuelan expulsions and property confiscations in 2015 and 2017 of Colombian residents without due process and, frequently, with violence may provide a useful example of an appropriate case for Diplomatic Protection arising within the context of a forced expulsion of an identifiable nationality. The following article, result of a research project regarding international law enforceability, reviews the current law on Diplomatic Protection and, within the context of a factual survey of the treatment of Colombian nationals by Venezuela, undertakes an analysis as to whether the facts of the case in fact give rise to a remedy of Diplomatic Protection. Effectively, the article argues in favour of the availability of this remedy as an option for the Colombian government.


Author(s):  
Christopher McCrudden

An account of what we know about the use by domestic courts of international human rights law is identified, based on the findings in this volume and earlier work on the use of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). From that, three aspects of the domestic functions of international human rights treaties are tentatively identified as particularly significant: international human rights law is only partly internationally-directed; domestic courts very seldom appear to be acting as ‘agents’ of international human rights law; and ‘human dignity’ (sometimes by itself, sometimes alongside ‘autonomy’ and ‘equality’) acts as an important meta-principle in the domestic use of international human rights law. The implications these functions have for normative theorising about human rights, in particular practice-dependent theories of human rights, is considered, and a theory of human rights law consistent with this practice is identified.


Author(s):  
Vanessa Tünsmeyer

With the activities of UNESCO in the recent decades international cultural heritage law has become its own area within public international law. By its very nature, namely its focus on cultural heritage and forms of cultural expression, it is closely linked to different human rights. However, this link has only really been realized in more recent instruments and even then not fully. States have obligations in both areas of international law. This raises the question of how to best accommodate State duties and rights under UNESCO instruments with individual and community rights under the respective human rights treaties. The author proposes to examine the functions of cultural heritage as one way in which to better bridge the gap between the two fields.


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