Part 3 Protection, 13 Nationality, Statelessness, and Protection

2021 ◽  
Author(s):  
Goodwin-Gill Guy S ◽  
McAdam Jane ◽  
Dunlop Emma
Keyword(s):  
Human Rights ◽  
International Law ◽  
The State ◽  
Modern Age ◽  
Civil Status ◽  
Domestic Jurisdiction ◽  
Domestic Law

This chapter studies nationality, statelessness, and protection. Domestic law determines the content of nationality, and historically only those elements of nationality bearing on the relations between States were considered of relevance to international law. Questions of nationality, therefore, are in principle within the reserved domain of domestic jurisdiction, even if that leaves many questions open. At one time, it was easier to envisage that the realm of the domestic might not be co-extensive with the realm of the international—that a State’s nationals for the purposes of international law, might yet be divided ‘back home’ into those who did, and those who did not, enjoy the full benefits of civil status. In a post-modern age sensible of human rights, such distinctions, though not unknown, are difficult to justify. If the domestic conception of citizenship did not encompass a sense of protection by the State, including admission or re-admission, then it failed as an instance of nationality in the sense of international law. The chapter then reflects on statelessness in international law and practice. It looks at the elimination and prevention of statelessness and the protection of stateless refugees.

Diplomatic Assurances Against Torture – An Effective Strategy? A Review of Jurisprudence and Examination of the Arguments

2008 ◽  
Vol 77 (4) ◽  
pp. 319-364 ◽  
Author(s):  
Lena Skoglund
Keyword(s):  
Human Rights ◽  
International Law ◽  
War On Terror ◽  
The State ◽  
Security Threats ◽  
International Human Rights ◽  
Actual Risk ◽  
Substantial Risk ◽  
International Human ◽  
Controversial Area

AbstractHuman rights organisations have warned repeatedly that basic human rights are being challenged in the so-called 'War on Terror'. One particularly controversial area is the use of diplomatic assurances against torture. According to international human rights instruments, the state shall not return anyone to countries in which they face a substantial risk of being subjected to torture. In the 'War on Terror', an increasing number of non-citizens are being deemed 'security threats', rendering them exempt from protection in many Western states. To be able to deport such 'threats' without compromising their duties under international law, states are increasingly willing to accept a diplomatic assurance against torture – that is, a promise from the state of return that it will not subject the returnee to torture. There is wide disagreement as to whether and/or when diplomatic assurances can render sufficient protection to satisfy the obligations of non-refoulement to risk of torture. Whereas the human rights society label such assurances as 'empty promises', others view them as effective, allowing states to retain their right to remove non-citizens without violating international law. This article reviews international and selected national jurisprudence on the topic of diplomatic assurances against torture and examines if and/or when such assurances might render sufficient protection against torture to enable removals in accordance with international law. The courts and committees that have reviewed the use of diplomatic assurances against torture have identified essential problems of using them, thus rejecting reliance on simple promises not to torture. However, they have often implied that sufficient protection might be rendered by developing the assurances. I argue that this approach risks leading the governments into trying to perfect a system that is inherently flawed – whilst, incidentally, deportations to actual risk of torture continue. Even carefully modelled assurances render only unreliable protection against torture. For this, and reasons connected to undesirable side-effects of their use, I argue that the practice should be rejected.

Remarks by Sean D. Murphy

2020 ◽  
Vol 114 ◽  
pp. 193-199
Author(s):  
Sean D. Murphy ◽  
Claudio Grossman
Keyword(s):  
Human Rights ◽  
International Law ◽  
The State ◽  
Human Right ◽  
Human Rights Movement ◽  
Interstate System ◽  
International Human ◽  
The Individual

Our conversation might begin by looking backward a bit. The human rights movement from 1945 onward has been one of the signature accomplishments of the field of international law, one that refocused our attention from a largely interstate system to a system where the individual moved in from the periphery to the center. Human rights champions point to numerous landmark treaties, numerous institutions, and the rise of NGOs as a critical vehicle for developing and monitoring human rights rules. Yet others look at the international human right system and still see the state as overly central, tolerating and paying lip service to human rights, but too easily discarding them when they prove to be inconvenient. The persistence of racism comes to mind. As a general matter, how would you assess the strengths and weaknesses of the system that was built essentially during your lifetime?

The Hardest Part: Creating a Right of Secession

2020 ◽  
pp. 219-241
Author(s):  
Timothy William Waters
Keyword(s):  
Human Rights ◽  
International Law ◽  
Legal Rule ◽  
The State ◽  
Making Sense ◽  
Legal Right

This chapter explores strategies to achieve acceptance of a right to secede, whether as a legal rule or as a model for individual states. Secession is a hard sell, and the principal battleground is moral and political. A shift in attitudes must precede the legal project; only then will people see doctrinal arguments lining up and making sense. And, after all, the goal is not a new legal right for its own sake, but a change in how societies and states behave. The chapter then considers why a formal right of secession is implausible, and what that implies about the best strategies to adopt—the narrow but real possibilities that exist. The path is indirect: It relies on transnational diffusion of norms, and for this people can draw lessons from once-improbable projects that have become orthodoxies, such as decolonization and human rights; also, recent secession attempts suggest that constitutional projects could serve as models. The path leads through many small changes, rather than a single, quixotic swerve toward a new legal rule. But because the existing global norm limits the ability to create change within states, people cannot abandon the idea of a new rule: Advocates of secession need a point of triangulation outside the state to advance their cause, and that point will be found in international law.

scholarly journals Roles of the Courts in New Zealand in Giving Effect to International Human Rights - with Some History

1999 ◽  
Vol 29 (1) ◽  
pp. 27 ◽  
Author(s):  
Kenneth J Keith
Keyword(s):  
Human Rights ◽  
International Law ◽  
Armed Conflict ◽  
Common Law ◽  
General Effect ◽  
International Affairs ◽  
The Common ◽  
The Right ◽  
Domestic Law

The Right Honourable Sir Kenneth Keith was the fourth speaker at the NZ Institute of International Affairs Seminar. In this article he describes and reflects upon the role of courts and judges in relation to the advancement of human rights, an issue covered in K J Keith (ed) Essays on Human Rights (Sweet and Maxwell, Wellington, 1968). The article is divided into two parts. The first part discusses international lawmakers attempting to protect individual groups of people from 1648 to 1948, including religious minorities and foreign traders, slaves, aboriginal natives, victims of armed conflict, and workers. The second part discusses how from 1945 to 1948, there was a shift in international law to universal protection. The author notes that while treaties are not part of domestic law, they may have a constitutional role, be relevant in determining the common law, give content to the words of a statute, help interpret legislation which is in line with a treaty, help interpret legislation which is designed to give general effect to a treaty (but which is silent on the particular matter), and help interpret and affect the operation of legislation to which the international text has no apparent direct relation. 

scholarly journals Disparity in Human Rights Violations: A Political and International Law Perspective

2016 ◽  
Vol 2 (3) ◽  
pp. 349
Author(s):  
Aidir Amin Daud
Keyword(s):  
Human Rights ◽  
International Law ◽  
Rational Solution ◽  
Double Series ◽  
Mass Murder ◽  
The State ◽  
Human Rights Violations ◽  
Natural Right ◽  
International Court ◽  
Political Interests

Right to life is non-derogable rights. A natural right that should not be revoked arbitrarily by anyone, including the state. A mass murder in events 1 October 1965 and Timor-Timor is a double series of states’ failure in protecting the rights of Indonesian peoples. Moreover, these two events get different treatment in its handling. The disparity in treatment between two cases is a big question related to the consistency of human rights enforcement in Indonesia. This study is a descriptive-qualitative research. While, to prove the truth, this study will use a comparative study. The findings show that the attitude of the United Nations that treat serious human rights violations in Timor-Timor and the events of 1965 in Indonesia, cannot be answered differently in the perspective of international law. Since it has a weakness where the political interests of ruling is very strong in influencing the decisions of the UN. The disparity in law enforcement in the event of serious human rights violations in 1965 and Timor-Timor due to the dynamics of international politics when it does not allow for the demands of human rights violations to the UNs’ International Court due to advantage for a certain state after the event. In order to reduce disparities in human rights violations, reconciliation is the most rational solution at this time compared remains demand the state for the violations. Besides, many human rights violations in certain countries that have successfully resolved through reconciliation approach.

scholarly journals The state liability for damages caused by its judicial authorities

2003 ◽  
Vol 75 (9-10) ◽  
pp. 409-422
Author(s):  
Nikola Mihailović
Keyword(s):  
Human Rights ◽  
The State ◽  
Point Of View ◽  
Council Of Europe ◽  
Member States ◽  
Legal Provisions ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
State Liability ◽  
Domestic Law

A breach of any right or freedom under the Convention for the Protection of Human Rights and Fundamental Freedoms, leads to but is not limited to liability of the State for damages. That liability is much stricter than the State liability for damage provided according to the domestic law provisions currently in force. The current provisions on State liability for the work of its judiciary do not include the damage caused by improper interpretation and application of the relevant legal provisions. In contrast, the liability of the Council of Europe Member States for the damage caused by their judicial and other authorities, through the breach of the human rights and fundamental freedoms guaranteed by the Convention includes their liability for improper interpretation and application of the relevant provisions of the Convention. That liability is so strict that it in fact comes equal to no-fault liability, from the point of view of its legal consequences. This is so, although it is regulated only as a presumed liability for which there are no grounds of limitation. As a result, two systems of liability for damage caused by judicial authorities will exist in our State Union and in its member states, after the ratification of the aforementioned Convention: liability pursuant to the domestic legal provisions and liability pursuant to the Convention. For that reason, a reform of the provisions on liability is necessary, which will lead to tightening of liability for damage caused by judiciary pursuant to the domestic rules. How to achieve this is a separate issue, which will not be discussed on this occasion.

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

2013 ◽  
Vol 50 ◽  
pp. 243-287 ◽  
Author(s):  
Paul David Mora
Keyword(s):  
Human Rights ◽  
International Law ◽  
Armed Conflict ◽  
The State ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Customary International 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.

Legal Protection of Children in Non-International Armed Conflicts in Nigeria

2021 ◽  
pp. 1-27
Author(s):  
Olaitan Oluwaseyi Olusegun
Keyword(s):  
Human Rights ◽  
International Law ◽  
Armed Conflict ◽  
Legal Protection ◽  
Legal Framework ◽  
Armed Conflicts ◽  
Conflict Situations ◽  
Legal Frameworks ◽  
The Impact ◽  
Domestic Law

Abstract Armed conflicts are characterised by violence and human rights violations with various implications on the citizens, economy and development of nations. The impact is however more pronounced with life-long consequences on children, the most vulnerable members of the society. This article examines the impact of non-international armed conflicts on children in Nigeria and identifies the laws for the protection of children against armed conflicts, both in international law and Nigeria’s domestic law. It also addresses the challenges involved in the protection of children in armed conflict situations in Nigeria. The study found that legal efforts to protect children have not been given sufficient attention in Nigeria. This is mostly due to various challenges including the fragmentation of legal framework and the refusal to domesticate relevant treaties. It is thus recommended that these challenges be addressed through the implementation of effective legal frameworks.

21. Applications: prisoners’ rights

2021 ◽  
pp. 433-447
Author(s):  
Howard Davis
Keyword(s):  
Human Rights ◽  
The State ◽  
European Convention ◽  
Legal Knowledge ◽  
Key Points ◽  
Self Test ◽  
The Uk ◽  
Article 5 ◽  
The Impact ◽  
Domestic Law

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter considers the application of Convention rights in the field of prisoners’ rights; the impact of Convention rights on prisoners in the UK is considered. Prisoners remain within the protection of the European Convention on Human Rights, though the application of these rights will take their position into account. Prisoners’ rights include not only rights to the non-arbitrary loss of liberty (Article 5) and rights to fair procedures (Articles 5 and 6), but also not to be disproportionately denied the rights and freedoms in Articles 8–11. Imprisonment deprives individuals of their liberty and, therefore, is a public function for which the state is responsible under the Convention. The controversy over prisoners’ right to vote is discussed in Chapter 25.

Translating International Law into Domestic Law, Policy, and Practice

2020 ◽  
pp. 113-132
Author(s):  
Gillian MacNaughton ◽  
Angela Duger
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Policy And Practice ◽  
International Human Rights ◽  
International Human ◽  
Judicial Actions ◽  
Domestic Law ◽  
Subnational Governments

This chapter provides an overview of the means through which international human rights law is translated into domestic law, policy, and practice. To have an influence on public health, international human rights law must be translated into domestic action. As international human rights law is largely state centered, it relies upon national and subnational governments to implement it—to promote and protect human rights and to provide remedies to victims of human rights violations. Based upon international rules on domestic implementation, there are four general approaches to translate international law into domestic action: human rights education, policymaking, judicial actions, and engagement with international human rights mechanisms. National and subnational governments use these four approaches to translate international human rights law into domestic law, policy, and practice for health, while nongovernmental organizations and international human rights mechanisms play important roles in monitoring these processes.

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