Moving towards Complicity as a Criterion of Attribution of Private Conducts: Imputation to States of Corporate Abuses in the US Case Law

2011 ◽  
Vol 24 (4) ◽  
pp. 989-1007
Author(s):  
DANIELE AMOROSO
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Legal Framework ◽  
Human Rights Violations ◽  
State Involvement ◽  
The Us ◽  
Terrorist Groups ◽  
Traditional Paradigm ◽  
Corporate Liability ◽  
Private Wrongs

AbstractAccording to the agency paradigm enshrined by the 2001 ILC Articles on State Responsibility, private conducts are attributed to a state when they are carried out on the state's behalf or under its tight control. On closer look, this legal framework proves to be unable to deal with state involvement in human-rights violations perpetrated by powerful non-state actors, such as terrorist groups or transnational corporations. These wrongs, indeed, are often put in place with the fundamental contribution of – but not on behalf of (or under the control of) – a state, with the consequence that, under the traditional paradigm, they could not be attributed to the latter. Against this backdrop, the present paper argues that a new secondary norm has been developing that provides that private wrongs are to be imputed to a state if the latter knowingly facilitated (or otherwise co-operated in) their commission. Although international practice will be duly taken into account, the analysis will be focused mainly on US case law concerning corporate liability for international human-rights violations.

Freedom of Religion in the Workplace

2021 ◽  
pp. 1-21
Author(s):  
Nedim Begović
Keyword(s):  
Human Rights ◽  
Bosnia And Herzegovina ◽  
Case Law ◽  
Legal Framework ◽  
The State ◽  
European Convention ◽  
Freedom Of Religion ◽  
European Court

Abstract The article analyses the case law of the European Court of Human Rights on accommodation of Islamic observances in the workplace. The author argues that the Court has not hitherto provided adequate incentives to the states party to the European Convention on Human Rights to accommodate the religious needs of Muslim employees in the workplace. Given this finding, the author proposes that the accommodation of Islam in the workplace should, as a matter of priority, be provided within a national legal framework. In Bosnia and Herzegovina, this could be achieved through an instrument of contracting agreement between the state and the Islamic Community in Bosnia and Herzegovina.

Functions of compensation for human rights violation in international and national judicial decisions

2021 ◽  
Vol 11 (1) ◽  
pp. 81-101
Author(s):  
Dmitry Kuznetsov
Keyword(s):  
Human Rights ◽  
Effective Means ◽  
National Court ◽  
Case Law ◽  
The State ◽  
Customary Law ◽  
Human Rights Violations ◽  
Complex Nature ◽  
European Court ◽  
International Responsibility

When establishing human rights violations committed by the state, should it be violation of internationally protected rights or constitutional rights, the violator is obliged to compensate for the harm caused. In the meantime, neither international sources, nor national legal acts and case law answer the question whether the obligation to compensate is exhausted by the compensation awarded in accordance with a decision of an international judicial body or such a payment has punitive nature, and the state keeps the obligation to compensate the damage within the frameworks of national proceedings. Following the first part of opening remarks the second part of the article studies universal international law approach towards the state obligation to compensate for human rights violations, it reviews positions of the International Court of Justice, the model established in international customary law of international responsibility. The third part discusses the compensation mechanism of the European Court of Human Rights and a number of cases where the Russian Federation was the respondent state. The forth part considers national regulation of the Council of Europe states and case law thereof. The author argues that the established international case law in respect of awarding compensations for human rights violations is too restrictive – it does not take into account a complex nature of this phenomenon which includes both correction of the individual applicant situation (restitution of the pre-existed situation) and prevention of similar situations in the future. It is concluded that awarding the compensation by an international body primarily constitutes a measure of international responsibility whereas consideration by a national court is a more effective means of restitution of the applicants rights and that the national court shall not deny consideration of applicants claims due to the fact that they have already been awarded compensation by the international judicial body including the European Court of Human Rights.

Collective Reparations as a Partial Remedy for State-Perpetrated Blanket Violations of the Rights of Targeted Child Asylum Seeker Groups

2019 ◽  
pp. 339-368
Author(s):  
Sonja C. Grover
Keyword(s):  
Human Rights ◽  
International Law ◽  
Central America ◽  
Asylum Seeker ◽  
Zero Tolerance ◽  
Migration Policy ◽  
Human Rights Violations ◽  
The Us ◽  
Principles Of Justice

This article argues for the entitlement of discrete refugee groups to collective reparations for targeted state-perpetrated blanket grievous human rights violations against their group whether by the home, transit or prospective asylum state. A review of selected international law and international principles of justice are discussed as a grounding for the applicability of collective reparations in such a refugee context. The example is discussed of children from Central America who accompanied their parent or parents to the US-Mexican border in search of refugee asylum most of whom, but not all, crossed the US border irregularly and then were separated from their parents as a result of President Trump’s so-called ‘zero-tolerance’ migration policy and held in US custody. Over 500 of these children are still, at the time of writing, separated from their parents and for a significant number of those, their parents have been deported without them.

Italian Practice in the Implementation of International Targeted Sanctions: Enhanced Protection or Additional Complexities?

2018 ◽  
Vol 27 (1) ◽  
pp. 93-114
Author(s):  
Elena Carpanelli
Keyword(s):  
Human Rights ◽  
Legal Framework ◽  
Human Rights Violations ◽  
Individual Rights ◽  
Practical Application ◽  
Private Interests ◽  
Critical Issues ◽  
Potential Impact ◽  
Restrictive Measures ◽  
Domestic Level

The proliferation of UN and EU targeted sanctions and their potential impact on individual rights and private interests require constantly monitoring how Member States implement such restrictive measures within their own domestic legal systems. This article focuses specifically on Italian practice in the implementation of UN and EU-mandated targeted sanctions. In so doing, it first dissects the relevant legal framework currently in place at the domestic level, taking into particular account the main novelties brought about by legislative decree (D. Lgs.) No. 90/2017. It then underscores some critical issues and shortcomings potentially stemming from its practical application. Finally, this article purports to examine the recent institution of a “domestic sanctions regime” and questions whether it might, in practice, end up rising additional grounds of concern, other then those already emerging from the implementation of UN and EU-mandated targeted sanctions, especially in terms of lack of adequate procedural guarantees for alleged human rights violations.

Reasons for EU double standards: comparative overview of the cases of the Erased and the Non-citizens

2015 ◽  
Vol 43 (2) ◽  
pp. 302-318 ◽  
Author(s):  
Sanja Vrbek
Keyword(s):  
Human Rights ◽  
Comparative Analysis ◽  
Case Studies ◽  
Legal Framework ◽  
Violent Conflict ◽  
Local Context ◽  
Human Rights Violations ◽  
Double Standards ◽  
Legal Provision ◽  
The Eu

On the basis of a comparative analysis of the case studies of the Slovenian Erased and the Latvian Non-citizens, the paper endeavors to identify the reasons for the EU involvement in the latter, but not the former case. These two situations are recognized as similar enough to be compared, and endure the counter-argumentation that the different EU approach is conditioned by the specifics of the local context, not by double standards. Hence, the paper comes to a conclusion that the involvement in Latvia has been conditioned by the fear of the potentially violent conflict, the existence of a proactive kin state, and a minority, significant in number, as well as the explicitly discriminatory legal framework that was in collision with the EU economic acquis. Thus, it has been inferred that double standards occur due to the lack of EU and international interest in these situations of human rights violations, where the powerful kin state and the minority, significant in number, are absent, do not have a potential to develop into a violent conflict, do not derive from explicitly discriminatory legal provision, and do not challenge the fundamental market freedoms of the EU.

The European Court of Human Rights and Transnational Judicial Dialogue

ICL Journal ◽  
2015 ◽  
Vol 9 (3) ◽  
Author(s):  
Carla M Zoethout
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Case Law ◽  
Judicial Decision ◽  
Council Of Europe ◽  
Judicial Decision Making ◽  
The Past ◽  
European Court ◽  
Foreign Law ◽  
The Us

AbstractOver the past decade, the European Court of Human Rights (ECtHR) seems more and more inclined to use foreign sources of law, that is to say, law that does not originate in the Convention itself or in one of the Member States of the Council of Europe. Unlike in the US, there is little discussion in Europe about this form of judicial dialogue in the case-law of the ECtHR. This paper seeks both to clarify transnational dialogue by the ECtHR and find ways to justify this practice, against the backdrop of the American debate on this topic. First, the concept of transnational judicial dialogue is analysed (Part II). Then judicial dialogue as it presents itself in the judgments of the ECtHR is assessed, especially when non-Convention or foreign law is being used in a substantive way (Part III). Subsequently, an attempt is made to define when and why the use of foreign law by the ECtHR can be considered a justifiable approach in judicial decision-making (Part IV). The paper rounds off with some concluding remarks (Part V).

Chomsky’s Discourse on US Foreign Policy, Media and Human Rights Interface: Implications to Indian Media

2012 ◽  
Vol 11 (2) ◽  
pp. 1
Author(s):  
Ashok Antony D’Souza
Keyword(s):  
Human Rights ◽  
The United States ◽  
Human Rights Violations ◽  
Ruling Elite ◽  
Goods And Services ◽  
News Reports ◽  
Propaganda Model ◽  
Noam Chomsky ◽  
Us Imperialism ◽  
The Us

The United States (US) is usually thought of as a nation representing freedom, democracy and human rights. However, as shown by Noam Chomsky and a few others, the US has turned out to be the most dominant imperialist nation as it is a ‘super power’ with immense political and economic clout. The US has been involved in human rights’ violations, Chomsky claims, with an intention of capturing markets for its goods and services, but has been successful in veiling it by shaping popular consciousness through its hegemony over popular media. Chomsky argues that the US has been preparing the ground for human rights’ violations by the use of ‘Propaganda Model’ which ‘filters’ reality in such a way as to give the ‘news’ that is perverted to serve the needs of the ruling elite. For instance, in many of the ‘news’ reports the weapons of mass destruction used by the US are attributed human traits while the citizens of the enemy nation are presented as nameless “aggressors” or “terrorists”. The relevance of the paper rests on working out the implications of Chomsky’s perspectives on the use of media by the US to serve its propagandist model and the implications of such tendencies to nations like India. The paper also tries to work out the possible way out of this impasse. Keywords: Culture of terrorism, human rights, media, propaganda model, US imperialism

The borders that disadvantage migrant women in enjoying human rights

2018 ◽  
Vol 36 (2) ◽  
pp. 93-110
Author(s):  
Lourdes Peroni
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Human Rights Violations ◽  
Migrant Women ◽  
Intersectionality Theory ◽  
European Court

This article launches a frame to investigate the inequalities underlying the human rights violations migrant women may experience. Drawing on intersectionality theory and on Ratna Kapur’s concept of ‘normative boundaries of belonging’, the article puts forward the notion of ‘intersecting borders of inequality’. The notion interrogates three types of borders that may construe migrant women as outsiders or lesser members in society: formal, normative and practical borders. The article demonstrates that scrutinising the ways in which these borders intersect illuminates some of the structures disadvantaging migrant women and invites imagining wider responses to tackle these disadvantages. To illustrate these arguments, the article uses examples of the European Court of Human Rights’ case law.

scholarly journals Lex Internationalis: Kiobel, Empires and the Color of Human Rights

2020 ◽  
Author(s):  
P. Sean Morris
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Common Law ◽  
Human Rights Violations ◽  
Modern Conception ◽  
The Supreme Court ◽  
The Us ◽  
Alien Tort Statute

In this article, I investigate the nature and origin of the Alien Tort Statute (A TS) and its link and application to the modern conception ofhuman rights. In the recent Kiobel decision, the Supreme Court resurrected the A TS and found that the A TS does not apply to human rights violations outside of the US allegedly committed by foreign-based corporations. The Supreme Court held that the presumption against extraterritorially applies to common law causes of action under the A TS, and no evidence exists that the First Congress wanted the A TS to confer jurisdiction over extraterritorial torts. In the article, Idevelop the notion ofthe color ofhuman rights to demonstrate that human rights itself has become a sort of lex internationalis.

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