Part 2 Asylum, 7 Protection under Human Rights and General International Law

2021 ◽  
Author(s):  
Goodwin-Gill Guy S ◽  
McAdam Jane ◽  
Dunlop Emma
Keyword(s):  
Human Rights ◽  
International Law ◽  
Legal Status ◽  
Legal Obligation ◽  
Refugee Convention ◽  
National Governments

This chapter explores the development of the principle of non-refoulement beyond the Refugee Convention. In broad terms, this can be described as ‘complementary protection’ because the non-refoulement obligation derives from sources that are complementary to the Refugee Convention. However, though not a term of art, ‘complementary protection’ commonly implies the grant of a domestic legal status as well. Under general international law, the principle of non-refoulement is wider than its expression in article 33 of the 1951 Refugee Convention. While States have always recognized, to varying degrees, the protection needs of people falling outside the ‘refugee’ definition in article 1A(2) of the Convention, it is only in the last 25 years or so that they have begun to articulate such protection as an international legal obligation, rather than as a matter left to the discretion and humanitarian goodwill of national governments.

The Normative Status of the Responsibility to Protect after Libya

2013 ◽  
Vol 5 (3) ◽  
pp. 317-341 ◽  
Author(s):  
Marie-Eve Loiselle
Keyword(s):  
Human Rights ◽  
International Law ◽  
Security Council ◽  
Legal Status ◽  
International Community ◽  
Responsibility To Protect ◽  
Legal Obligation ◽  
Member States ◽  
Customary International Law ◽  
Normative Status

The responsibility to protect concept has evolved rapidly in the last decade but its normative and legal status is still disputed. This paper assesses the degree of recognition the concept has attracted since its inception and the significance of resolutions 1970 and 1973 for the transformation of the responsibility to protect into a new norm of customary international law. It argues that despite claims about the centrality of the concept in the decision to intervene in Libya, the language of both resolutions, and the statements made by members of the Security Council surrounding their adoption, indicate that member states did not consider that they were legally bound to protect the population of Libya. Consequently, the intervention in Libya has not promoted the development of a legal obligation upon the international community to protect the world’s populations against gross violations of human rights.

Part II Sources, Ch.11 Moving Towards an Integrated Approach of Refugee Law and Human Rights Law

2021 ◽  
Author(s):  
Chetail Vincent
Keyword(s):  
Human Rights ◽  
International Law ◽  
Integrated Approach ◽  
Human Rights Law ◽  
Refugee Convention ◽  
Refugee Protection ◽  
Refugee Law ◽  
Gradual Process ◽  
New Perspective ◽  
Human Rights Based Approach

This chapter highlights the interface between human rights law and refugee law. The broader evolution of international law reflects the changing pattern of refugee protection as initially grounded in the Refugee Convention and subsequently informed by human rights treaties. As a result of a gradual process of pollination, human rights law has shaped, updated, and enlarged refugee law. While revamping the basic tenets of the Refugee Convention, it has become the normative frame of reference. Refugee law and human rights law are now so interdependent that they are bound to work in tandem. Their intermingling paves the way for a human rights-based approach to refugee protection. Instead of regarding the two branches of international law as silos, this new perspective offers a broader vision of refugee protection. This comprehensive design acknowledges that refugee law and human rights law complement and reinforce each other within one single continuum of protection.

Contesting Self-determination in the Wake of Empire: Sovereignty, Human Rights and Economic Justice

2020 ◽  
Vol 89 (1) ◽  
pp. 67-93
Author(s):  
Miriam Bak McKenna
Keyword(s):  
Human Rights ◽  
International Law ◽  
Legal Status ◽  
International Economic Order ◽  
Self Determination ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Historical Accounts ◽  
East West ◽  
Individual Human

This article considers the ways in which geo-political and legal concerns materialised in debates over self-determination in the years following decolonisation, and how they impacted on its’ possibilities, objectives and conception. During this period, self-determination was not, as some scholars have argued, a declining norm, but one central to the competing visions of reinventing international law after empire. These varying articulations were largely shaped by the experience of colonialism and its ongoing effects, along with the ideological confrontation between East-West and North-South. One articulation stressed the primacy of political and economic sovereignty, prominently seen in calls for the establishment of a New International Economic Order. The other sought to integrate self-determination into the elevation of democratic governance and individual human rights protection. Examining these alternative formulations of self-determination, underlines the incompleteness of mainstream historical accounts, and may throw light upon continuing anxieties over its current legal status.

scholarly journals Kiobel and the New Battle Over Congressional Intent

AJIL Unbound ◽  
2013 ◽  
Vol 107 ◽  
pp. 9-13
Author(s):  
David H. Moore
Keyword(s):  
Human Rights ◽  
International Law ◽  
Legal Status ◽  
Common Law ◽  
Customary International Law ◽  
Alien Tort Statute

Transnational human rights litigation under the Alien Tort Statute (ATS) has been plagued by the overarching question of the domestic legal status of customary international law (CIL). Kiobel v. Royal Dutch Petroleum Co. is the Supreme Court's second installment on the ATS. Like Sosa v. Alvarez-Machainbefore it, Kiobel does not expressly address the domestic legal status of CIL, but it does provide clues. Those clues suggest two insights: the Court views CIL as external to U.S. law, rather than as part of federal common law, and the role of CIL in future cases may be affected less by arguments about CIL's status as federal common law than by arguments about congressional intent.

Gender and the boundaries of international refugee law: Beyond the category of ‘gender-related asylum claims’

2019 ◽  
Vol 37 (4) ◽  
pp. 379-397
Author(s):  
Christel Querton
Keyword(s):  
International Law ◽  
General Rule ◽  
Legal Obligation ◽  
Refugee Convention ◽  
General Acceptance ◽  
Refugee Law ◽  
Distinct Category ◽  
Treaty Interpretation ◽  
International Refugee Law ◽  
Human Rights Norms

The adoption of gender guidelines aiming to ensure consistency in gender-sensitive interpretation of the UN Refugee Convention definition demonstrates a general acceptance that gender is relevant to the question of who is a refugee. However, there is evidence that States have failed to adequately undertake the process of gender-sensitive interpretation and implement these guidelines comprehensively. Accordingly, this article argues that the general rule of treaty interpretation in international law enables the identification of a legal obligation of State Parties to the Refugee Convention to take gender into account when interpreting the refugee definition. The precise scope and nature of the duty of States to take gender into account is identified through a dynamic approach to interpretation by reference to international human rights norms. Overall, this article claims that the conceptualisation of a legal obligation in international law to interpret the refugee definition in a way that takes gender into account is inhibited by the development of a distinct category of ‘gender-related asylum claims’ within gender and refugee law scholarship. Consequently, this article presents a challenge to the borders implicit in the category of ‘gender-related asylum claims’ by revisiting the boundaries of international refugee law.

Child Rights and the Movement from Status to Agency: Human Rights and the Removal of the Legal Disabilities of Vulnerability

2015 ◽  
Vol 84 (2) ◽  
pp. 183-220
Author(s):  
Sevda Clark
Keyword(s):  
Human Rights ◽  
International Law ◽  
Legal Status ◽  
Human Rights Law ◽  
Child Rights ◽  
Sociological Approach ◽  
Legal Ideology ◽  
Recent Developments ◽  
The Common ◽  
Universal Norm

Using ideology as heuristic, a legal sociological approach is employed to critically evaluate a child’s legal status and its evolution since the eighteenth century. Four principal phases are identified: (1) legal ideology of individualism in the common law tradition; (2) movement from status to contract; (3) movement from status to rights; and (4) movement from status to agency. To strengthen legal agency both status and capacity are addressed. In the fourth phase, legal status has evolved in ways capable of facilitating children’s legal agency; it has evolved from being static to being dynamic, and is now determined by reference to public international law, rather than territorially. This article advances a universal norm of legal capacity to sue for violations of human rights, which is derived from the recent developments in human rights law. In the evolution of children’s rights we are presently witnessing the movement from status to agency.

Dignity and the Foundation of Human Rights: Toward an Averroist Genealogy

2019 ◽  
Vol 13 (2) ◽  
pp. 304-332 ◽  
Author(s):  
Miguel Vatter
Keyword(s):  
Human Rights ◽  
Human Dignity ◽  
Political Thought ◽  
Legal Status ◽  
Legal Obligation ◽  
Political Views ◽  
Arabic Philosophy ◽  
Public Happiness ◽  
Legal Right

AbstractThe aim of this article is to give a new reconstruction of the conception of human dignity as a pre-associative yet legal status. Such a legal conception of human dignity carries a universal legal obligation to respect the “innate” right to independence and enables us to move beyond the impasse between moral and political views of human rights. The argument has a normative and a genealogical component. The normative component shows why a legal conception of human rights is grounded on the Kantian idea of an innate legal right to independence, as well as showing that Kant adopted a legal status concept of human dignity. The genealogical component shows that the conception of human dignity as legal status undergoes a transvaluation from its ancient aristocratic to its modern democratic meaning in Dante's political thought, which is itself rooted in the western reception of Arabic philosophy, in particular political Averroism. By contrast to the Christian elaboration of dignity, the Averroist genealogy of dignity better describes the modern pursuit of an ideal of worldly happiness essentially linked with the collective attainment of public happiness through the unrestricted public use of reason facilitated by republican constitutions crowned by human rights.

Restricting Discretion: Judicial Review of Diplomatic Protection

2006 ◽  
Vol 75 (2) ◽  
pp. 279-307 ◽  
Author(s):  
Annemarieke Vermeer-Künzli
Keyword(s):  
Human Rights ◽  
International Law ◽  
Judicial Review ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
National Courts ◽  
Diplomatic Protection ◽  
International Law Commission ◽  
National Governments

AbstractIn the last 30 years, individuals have increasingly filed complaints against their national governments for failure to exercise diplomatic protection on their behalf, in particular in cases of serious violations of international human rights law. Despite the fact that diplomatic protection has traditionally been regarded as a discretionary right of states, the national courts have invariably decided to enter into the merits of the case and to review the exercise of diplomatic protection by the executive. Initially, a draft article on this subject was not accepted by the International Law Commission in the Draft Articles on first reading, but an encouraging provision was included in the Draft Articles adopted on second reading. The development discussed in this article shows support for an obligation to exercise diplomatic protection in case of serious violations of human rights law.

Challenges and Pitfalls in Research on Compliance with the ‘Views’ of UN Human Rights Treaty Bodies: A Reply to Vera Shikhelman

2020 ◽  
Vol 31 (2) ◽  
pp. 693-708
Author(s):  
Andreas J Ullmann ◽  
Andreas von Staden
Keyword(s):  
Human Rights ◽  
International Law ◽  
Legal Status ◽  
Methodological Approach ◽  
Time Dimension ◽  
Causal Inferences ◽  
Implementation Processes ◽  
Fine Grained ◽  
Treaty Body

Abstract Vera Shikhelman’s recent article on the implementation of the views of the United Nations Human Rights Committee (HRC) took a valuable first step towards addressing the question why states do, or do not, comply with adverse treaty body views. In this contribution, we contend that parts of the chosen theoretical and methodological approach are somewhat problematic, however, and ultimately weaken the overall strength and reliability of Shikhelman’s findings. Theoretically, we question whether hypotheses developed in the context of studying compliance with international law and legally binding court judgments can be transferred to legally non-binding views without adjusting for potentially consequential differences in their legal status. Methodologically, we note certain issues concerning the data generated by the HRC’s follow-up procedure and its use in Shikhelman’s analysis, and suggest that statistical methods that take into consideration the time dimension of implementation processes, notably survival analysis, yield analytically more convincing causal inferences. We provide illustrative results of such a methodologically revised approach to examining compliance with adverse HRC views that reveal more fine-grained insights into the temporally unfolding processes of implementing such decisions.

Group Identities and Human Rights: How Do We Square the Circle in International Law?

2018 ◽  
Vol 75 (3-4) ◽  
pp. 94-106
Author(s):  
Gaetano Pentassuglia
Keyword(s):  
Human Rights ◽  
International Law ◽  
Legal Status ◽  
Human Rights Practice ◽  
Group Identities ◽  
Rights Discourse ◽  
Group Diversity ◽  
Human Rights Discourse ◽  
The Relationship

The identity of groups of an ethno-cultural variety has long fallen within the remit of internati­onal human rights law. In this context, discussions have been largely concerned with the legal status of groups and/or the nature of the legal right(s) in question. While acknowledging the importance of these dimensions, in this article I seek to provide an alternative account by dis­cussing the continuities and discontinuities in articulating the very concept of group identity. I first examine the potential, limitations and eventual hybridity of human rights practice across the spectrum of minority/indigenous identities. Then, I critique a range of instabilities in human rights discourse relating to the idea of group identities, their personal scope and the role of international law. I argue that such instabilities do not merely mirror the ambivalent outlook of the relationship between human rights and group identities; they raise the broader question of whether there is a relatively more coherent way to capture the legitimacy of group claims. I conclude by pointing to the outer limits of identity claims, the understated interplay of sove­reignty and inter-group diversity, and the need to unpack the reasons why certain groups merit protection in the way they do.

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