Part III The Limitations and Role of the Persistent Objector Rule, 8 Maintaining Exemption: ‘Fundamental’ Norms and Extra-Legal Factors

Human Rights Law ◽

State Practice ◽

The Face ◽

Jus Cogens

A notable minority critique of the persistent objector rule is that the rule is not supported by actual state practice. The first part of this book dismissed these critiques. This chapter explores the ‘softer’ versions of the persistent objector rule. The first is that persistent objection is not permissible in relation to particularly ‘fundamental’ customary international law norms, even those that have not attained jus cogens status. This claim has most commonly been made with regard to norms of customary international human rights law. The chapter then turns to a related claim made by critics of the persistent objector rule, which is that it is commonly unavailing, not just in the face of especially ‘fundamental’ norms, but in general.

The Idea of International Human Rights Law

10.1093/oso/9780198749844.001.0001 ◽

2019 ◽

Author(s):

Steven Wheatley

Keyword(s):

Human Rights ◽

International Law ◽

Human Rights Law ◽

Moral Concept ◽

Fragmentation Of International Law

Human Rights Treaties ◽

International Human ◽

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.

SECURING HUMAN RIGHTS IN THE FACE OF INTERNATIONAL INTEGRATION

International and Comparative Law Quarterly ◽

10.1017/s0020589310000692 ◽

2011 ◽

Vol 60 (1) ◽

pp. 125-165 ◽

Cited By ~ 1

Author(s):

Israel de Jesús Butler

Keyword(s):

Human Rights ◽

International Law ◽

Regional Level ◽

Human Rights Law ◽

Governmental Organizations ◽

The Face ◽

International Obligations ◽

Increasing Risk

AbstractThe continuous transfer of authority from the national sphere to inter-governmental organizations gives rise to an increasing risk that States may be mandated by their obligations under these organizations to take measures that are inconsistent with their obligations under International Human Rights Law. Drawing on the approaches of various international, regional and national jurisdictions, this article explores two possible models for restructuring International Law that could ensure that human rights obligations remain effective. The ‘international constitutional’ approach would ensure that human rights are enshrined within the ‘constitutional’ instruments of IGOs, preventing incompatible rules from emerging. The ‘parochial’ approach would ensure that human rights as protected at the national or regional level would take precedence over conflicting international obligations.

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

Canadian Yearbook of international Law/Annuaire canadien de droit international ◽

10.1017/s0069005800010857 ◽

2013 ◽

Vol 50 ◽

pp. 243-287 ◽

Cited By ~ 2

Author(s):

Paul David Mora

Keyword(s):

Human Rights ◽

International Law ◽

Armed Conflict ◽

The State ◽

Human Rights 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.

International Human Rights Law

The International Human Rights Movement ◽

10.23943/princeton/9780691135151.003.0004 ◽

2012 ◽

Author(s):

Aryeh Neier

Keyword(s):

International Law ◽

The United States ◽

Customary Law ◽

Human Rights Law ◽

The Status ◽

Civilized Society ◽

The U.S

This chapter focuses on the two sources of international law: custom and treaties. Customary international law is the term used to describe rules that are so widely accepted and so deeply held that they help to define what it means to belong to a civilized society. The question of whether customary international law is binding on the United States came before the U.S. Supreme Court as long ago as 1900 in a case called Paquete Habana. Whereas treaty law often covers the same ground as customary international law. Torture is forbidden by customary international law, for example, and prohibitions against torture are also set forth in several multilateral treaties. The effect is to reinforce recognition that a particular norm set forth in a treaty has the status of customary law.

International Human Rights Law

The International Human Rights Movement ◽

10.23943/princeton/9780691200989.003.0004 ◽

2020 ◽

pp. 94-116

Author(s):

Aryeh Neier

Keyword(s):

International Law ◽

The United States ◽

Customary Law ◽

Human Rights Law ◽

The Status ◽

Civilized Society ◽

The U.S

This chapter discusses custom and treaties as the two sources of international law. It explains the customary international law as the term used to describe rules that are widely accepted and deeply held and are used to define what it means to belong to a civilized society. It also recounts the case called “Paquete Habana” in the U.S. Supreme Court that addresses the question of whether customary international law is binding on the United States. The chapter talks about the treaty law or conventional law as the source of multilateral conventions that often covers the same ground as customary international law. It analyzes the prohibitions against “torture” that are set forth in several multilateral treaties and reinforce recognition that a particular norm set forth in a treaty has the status of customary law.

Part IV Normative Evolution, Ch.23 Jus Cogens and Obligations Erga Omnes

The Oxford Handbook of International Human Rights Law ◽

10.1093/law/9780199640133.003.0024 ◽

2013 ◽

Author(s):

de Wet Erika

Keyword(s):

Human Rights ◽

Legal Order ◽

Vienna Convention ◽

Human Rights Law ◽

State Practice ◽

International Human ◽

Jus Cogens ◽

Formal Recognition

This article examines the relation between jus cogens and erga omnes obligations in the context of international human rights law. It discusses the content of jus cogens and its relevance within the domestic legal order and explains the relevant provisions of Article 53 of the Vienna Convention on the Law of Treaties of 1969 (VCLT). This article highlights the increasing formal recognition in state practice and doctrine of a hierarchy of norms in international law in the form of jus cogens which indicates increased recognition of core values throughout the international community of states.

4. Human Rights in International Law

Human Rights: Politics and Practice ◽

10.1093/hepl/9780198708766.003.0005 ◽

2016 ◽

Author(s):

Rhona K. M. Smith

Keyword(s):

Human Rights ◽

International Law ◽

Human Rights Law ◽

Legal Context ◽

National Human ◽

International Human ◽

United Nations System

This chapter examines the international legal context of human rights. It first considers the historical evolution of international human rights law, with particular emphasis on the reincarnation of philosophical ideals as international laws (treaties), before discussing the principal sources of international human rights law such as customary international law and ‘soft’ law. It then describes the various forms of expressing human rights, along with the core international human rights instruments. It also explores the mechanisms for monitoring and enforcing human rights, including the United Nations system, regional human rights systems, and national human rights systems. Finally, it explains the process followed for a state wishing to be bound to the provisions of a treaty and the benefits of listing human rights in treaties.

Customary International Law and International Human Rights Law: A Proposal for the Expansion of the Alien Tort Statute

Indiana International & Comparative Law Review ◽

10.18060/17886 ◽

2013 ◽

Vol 23 (3) ◽

pp. 523-554

Author(s):

Anne Lowe

Keyword(s):

Human Rights ◽

International Law ◽

Human Rights Law ◽

International Human ◽

Alien Tort Statute

Jusnaturalism as the foundation of the concept of international protection of human rights in H. Lauterpacht’s works

Uzhhorod National University Herald. Series: Law ◽

10.24144/2307-3322.2021.64.72 ◽

2021 ◽

pp. 392-396

Author(s):

O. M. Sheredʹko

Keyword(s):

Human Rights ◽

International Law ◽

Natural Law ◽

Human Rights Law ◽

Protection Of Human Rights ◽

International Human ◽

International Document

Prominent international law scholar H. Lauterpacht devoted most of his exploratory work to the issue of human rights in international law.This article reveals H. Lauterpacht’s views on the role of international law in the recognition and consolidation of human rights and the role of jusnaturalism as the basis of international human rights law. Analyzing the works by H. Lauterpacht, we can say that the scholar was the founder of international human rights law. Natural law and natural human rights, according to H. Lauterpacht, have been the unchanging basis of human rights of all times.The origins and periodization of jusnaturalism in the works of leading international law scholar are considered. The main statements of the representatives of the natural law concept of different times, in particular, the basic ideas in the works of Socrates, Aulis Aarnio, Francisco de Vitoria, Francisco Suarez, Alberico Gentili, Thomas Hobbes, Samuel von Pufendorf, Hugo Grotius are outlined.The views of prominent philosophers are the foundation of the concept of jusnaturalism. Numerous supporters of the concept of natural law in different periods of history testify to its importance at every stage of human rights development.International law in this matter is a kind of second stage of recognition and protection of human rights, after recognition in the national law of states.International law is designed to consolidate the rights granted by nature to the human in the international arena.H. Lauterpacht saw the real recognition and protection of human rights by enshrining them in an international document signed by all countries of the world.The scientist proposed a draft international document on the recognition of human rights at the international level called International Bill of the Rights of Man. The provisions proposed in this document were later enshrined in international instruments such as the Universal Declaration of Human Rights of 1948, the International Covenant on Economic, Social and Cultural Rights of 1966 and the International Covenant on Civil and Political Rights of 1966.

The Limits of Law

Feeding the Hungry ◽

10.7591/cornell/9781501751165.003.0006 ◽

2020 ◽

pp. 109-130

Author(s):

Michelle Jurkovich

Keyword(s):

Human Rights ◽

International Law ◽

Human Rights Law ◽

Human Right ◽

Right To Food ◽

International Human ◽

The Right

This chapter considers the puzzling role of international law around the right to food and examines why the existing law has been unable to generate norms within the advocacy community. It explores the reasons why international anti-hunger organizations rarely legitimate the right to food in legal terms and how this case can challenge the understanding of the relationships between norms, human rights, and law. It also provides a conceptual discussion of the distinction between formal law and norms, underscoring the importance of not conflating the two concepts. The chapter argues that many international anti-hunger organizations still do not conceptualize food as a human right, making international human rights law less relevant. It looks at the hunger case that suggests there is nothing automatic about law generating norms among activists or society at large.