The Strength of Weak Review: National Courts, Interpretive Canons, and Human Rights Treaties

2019 ◽  
Vol 63 (3) ◽  
pp. 507-520 ◽  
Author(s):  
Yonatan Lupu ◽  
Pierre-Hugues Verdier ◽  
Mila Versteeg
Keyword(s):  
Human Rights ◽  
International Law ◽  
Direct Effect ◽  
The Political ◽  
National Courts ◽  
Human Rights Treaties ◽  
The Face ◽  
Legal Constraints ◽  
The Relationship ◽  
Do So

Abstract Enforcement of international law is often delegated to national courts, creating a space for them to play a part in international judicialization. Under what conditions can they do so? We argue that the answer depends on the relationship between the political and legal constraints national courts face. National courts must be careful to safeguard their independence in the face of potential backlash, but they face constraints in terms of the legal mechanisms available to them when enforcing international law. We focus on the availability of two legal mechanisms: direct effect, under which courts apply treaties directly, setting aside inconsistent domestic laws; and canons of interpretation, under which courts strive to interpret domestic laws in conformity with treaties. We find that the effects of human rights treaty ratification is greater when courts have the canon available to them than it is when courts have direct effect available to them.

The Obligation to Afford Reparation to Injured Individuals

2017 ◽  
Author(s):  
Carla Ferstman
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Organizations ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Human Rights Treaties ◽  
The Law ◽  
The Right ◽  
Right Of Access ◽  
The Relationship

This chapter considers the consequences of breaches of human rights and international humanitarian law for the responsible international organizations. It concentrates on the obligations owed to injured individuals. The obligation to make reparation arises automatically from a finding of responsibility and is an obligation of result. I analyse who has this obligation, to whom it is owed, and what it entails. I also consider the right of individuals to procedures by which they may vindicate their right to a remedy and the right of access to a court that may be implied from certain human rights treaties. In tandem, I consider the relationship between those obligations and individuals’ rights under international law. An overarching issue is how the law of responsibility intersects with the specialized regimes of human rights and international humanitarian law and particularly, their application to individuals.

Part 2 Interrelations between Constitutionalism and Sharī’ah: Antagonism or Complementarity?, 2.1 Constitutionalism in Islamic Countries: A Survey from the Perspective of International Law

2012 ◽  
Author(s):  
Wolfrum Rüdiger
Keyword(s):  
Human Rights ◽  
Middle East ◽  
International Law ◽  
Historical Development ◽  
Islamic Law ◽  
International Human Rights ◽  
Human Rights Treaties ◽  
International Human ◽  
The Impact ◽  
The Relationship

This chapter examines the influence of international law and Islamic law on the constitutions of Islamic states. It discusses the historical development of the relationship between Islamic law and international law; reference to human rights and international law in the constitutions of Islamic states (Africa, Middle East, and Asia); and the impact of the Sharīʻah on the ratification of international human rights treaties.

scholarly journals The Internationalization of Judicial Review in the Colombian High Courts

2019 ◽  
Vol 5 (1) ◽  
pp. 001
Author(s):  
Juan Sebastián Villamil Rodriguez
Keyword(s):  
Human Rights ◽  
International Law ◽  
The State ◽  
Constitutional Court ◽  
State Council ◽  
National Courts ◽  
High Courts ◽  
Constitutional System ◽  
Relationship Of ◽  
The Relationship

The internationalization of adjudication in the Colombian high court refers to the growing importance that the American Convention on Human Rights has gained among the judicial forums of this country, but especially to the phenomenon that occurs when national judiciaries implement and appropriate the doctrine of the control of conventionality. The Convention has claimed a high ground in the Colombian constitutional system due to the appropriation of international law by national courts decisions, and to the process of the internationalization of the law. By consistently applying the control of conventionality doctrine, courts like the State Council have reaffirmed the binding nature and the effectiveness of the decisions of the Inter-American Court of Human Rights for the Colombian legal system. In contrast to a much more regressive posture assumed by the Constitutional Court in recent decisions, the State Council, drawing on the legal contents of international law, has broadened the range of legal sources for rights interpretation in Colombia. By this action, as it will be further stated in this article, the State Council has contributed to a move away from a paradigm of a legalism based solely on the state sovereignty and national constitutionalism, towards one that endorses the pluralist structure of post-national law. Against this background, this article aims to discuss how the relationship of national judiciaries with international law is best understood as reflecting the development of a pluralist legal dynamic, sometimes referred to as jurisprudential dialogue, that involves the broadening of the normative horizon and the internationalization of the sources available for national judges in their reasoning; particularly in the cases that involve human rights violations.

Risk, Desire and Adaptation: The Paradox of Queer Solidarity and the Political Possibility of Death Under Neoliberalism and Homonationalism

Somatechnics ◽  
2017 ◽  
Vol 7 (2) ◽  
pp. 185-200
Author(s):  
Natalie Kouri-Towe
Keyword(s):  
Human Rights ◽  
Social Movement ◽  
Political Activism ◽  
State Violence ◽  
The Political ◽  
Sexual Rights ◽  
Political Strategy ◽  
Rights Discourse ◽  
The Relationship ◽  
Strategy I

In 2015, Queers Against Israeli Apartheid Toronto (QuAIA Toronto) announced that it was retiring. This article examines the challenges of queer solidarity through a reflection on the dynamics between desire, attachment and adaptation in political activism. Tracing the origins and sites of contestation over QuAIA Toronto's participation in the Toronto Pride parade, I ask: what does it mean for a group to fashion its own end? Throughout, I interrogate how gestures of solidarity risk reinforcing the very systems that activists desire to resist. I begin by situating contemporary queer activism in the ideological and temporal frameworks of neoliberalism and homonationalism. Next, I turn to the attempts to ban QuAIA Toronto and the term ‘Israeli apartheid’ from the Pride parade to examine the relationship between nationalism and sexual citizenship. Lastly, I examine how the terms of sexual rights discourse require visible sexual subjects to make individual rights claims, and weighing this risk against political strategy, I highlight how queer solidarities are caught in a paradox symptomatic of our times: neoliberalism has commodified human rights discourses and instrumentalised sexualities to serve the interests of hegemonic power and obfuscate state violence. Thinking through the strategies that worked and failed in QuAIA Toronto's seven years of organising, I frame the paper though a proposal to consider political death as a productive possibility for social movement survival in the 21stcentury.

Comparative Views on the Right to Vote in International Law

2018 ◽  
Author(s):  
Shai Dothan
Keyword(s):  
Human Rights ◽  
International Law ◽  
National Courts ◽  
European Court ◽  
Right To Vote ◽  
The Right ◽  
Democratic Elections ◽  
The Way

There is a consensus about the existence of an international right to vote in democratic elections. Yet states disagree about the limits of this right when it comes to the case of prisoners’ disenfranchisement. Some states allow all prisoners to vote, some disenfranchise all prisoners, and others allow only some prisoners to vote. This chapter argues that national courts view the international right to vote in three fundamentally different ways: some view it as an inalienable right that cannot be taken away, some view it merely as a privilege that doesn’t belong to the citizens, and others view it as a revocable right that can be taken away under certain conditions. The differences in the way states conceive the right to vote imply that attempts by the European Court of Human Rights to follow the policies of the majority of European states by using the Emerging Consensus doctrine are problematic.

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.

Germany

2018 ◽  
Author(s):  
Valentin Aichele
Keyword(s):  
Human Rights ◽  
International Law ◽  
Direct Effect ◽  
Federal Courts ◽  
International Human Rights ◽  
Persons With Disabilities ◽  
Public International Law ◽  
Monitoring Mechanism ◽  
International Human ◽  
Human Rights Norms

This chapter analyses the use and interpretation of the Convention on the Rights of Persons with Disabilities (CRPD) in sixty-nine decisions of German federal courts between 2009 and mid-2016. German courts’ failure to be proactive in demonstrating ‘friendliness towards public international law’ when dealing with international human rights norms has been criticised. The National CRPD Monitoring Mechanism addressed problems in the application of the law. This chapter investigates the courts’ understanding of basic CRPD concepts, judicial techniques, interpretation methods and specific CRPD provisions. The importance of the concepts of self-executing provisions and direct effect is discussed. In quantitative terms, German courts have referred to the CRPD more often than any other UN international human rights instrument. Furthermore, in qualitative terms, federal courts have become more receptive towards the CRPD. However, it is clear that much of the potential for courts to use the CRPD in the realisation of the rights of persons with disabilities remains untapped.

Protecting Natural Resources

2018 ◽  
Author(s):  
Jérémie Gilbert
Keyword(s):  
Climate Change ◽  
Human Rights ◽  
Natural Resources ◽  
Environmental Law ◽  
Legal Framework ◽  
Human Rights Law ◽  
International Environmental Law ◽  
Conservation Of Natural Resources ◽  
The Relationship ◽  
Do So

This chapter focuses on the connection between the international legal framework governing the conservation of natural resources and human rights law. The objective is to examine the potential synergies between international environmental law and human rights when it comes to the protection of natural resources. To do so, it concentrates on three main areas of potential convergence. It first focuses on the pollution of natural resources and analyses how human rights law offers a potential platform to seek remedies for the victims of pollution. It next concentrates on the conservation of natural resources, particularly on the interconnection between protected areas, biodiversity, and human rights law. Finally, it examines the relationship between climate change and human rights law, focusing on the role that human rights law can play in the development of the current climate change adaptation and mitigation frameworks.

Transnational constitutional aspects of the European Court of Human Rights

2021 ◽  
Vol 10 (1) ◽  
pp. 151-174
Author(s):  
GEIR ULFSTEIN
Keyword(s):  
Human Rights ◽  
Direct Effect ◽  
Legal Pluralism ◽  
Legal Order ◽  
Not Given ◽  
National Courts ◽  
European Court ◽  
International Court ◽  
International Legal Order

AbstractThe European Court of Human Rights (ECtHR) is an international court operating in the international legal order. Its judgments are not given direct effect in national law. In this sense we have a system of legal pluralism between international and national law. But the ECtHR has constitutional effects in national law through the weight placed on the Court’s practice by national courts. Therefore, constitutional principles are applicable in the interaction between the ECtHR and national courts. This article discusses the transnational constitutional aspects of the Court, and how this should guide the roles of, respectively, the ECtHR and national courts.

scholarly journals Designing for international law: The architecture of international organizations 1922–1952

2020 ◽  
pp. 1-22
Author(s):  
Miriam Bak McKenna
Keyword(s):  
New York ◽  
International Law ◽  
International Organizations ◽  
International Organization ◽  
International Labour Organization ◽  
The Relationship ◽  
Physical Manifestation ◽  
Insight Into ◽  
Do So

Abstract Situating itself in current debates over the international legal archive, this article delves into the material and conceptual implications of architecture for international law. To do so I trace the architectural developments of international law’s organizational and administrative spaces during the early to mid twentieth century. These architectural endeavours unfolded in three main stages: the years 1922–1926, during which the International Labour Organization (ILO) building, the first building exclusively designed for an international organization was constructed; the years 1927–1937 which saw the great polemic between modernist and classical architects over the building of the Palace of Nations; and the years 1947–1952, with the triumph of modernism, represented by the UN Headquarters in New York. These events provide an illuminating allegorical insight into the physical manifestation, modes of self-expression, and transformation of international law during this era, particularly the relationship between international law and the function and role of international organizations.

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