Part VI Human Rights and General International Law, Ch.33 Transnational Litigation: Jurisdiction and Immunities

2013 ◽  
Author(s):  
Keitner Chimène I
Keyword(s):  
Human Rights ◽  
International Law ◽  
Foreign Relations ◽  
Court Cases ◽  
Human Rights Abuses ◽  
National Courts ◽  
State Actors ◽  
Human Rights Norms

This article examines the issues of jurisdiction and immunities in transnational human rights litigation. It discusses the bases of asserting jurisdiction and highlights the problem in achieving consensus about the rules governing foreign official immunity. It analyses several relevant court cases including claims against foreign states, against current or former foreign officials and against non-state actors. This article argues that the horizontal enforcement of human rights norms by national courts carries the potential for both salutary and disruptive effects. It explains that while it can provide an avenue for victims of human rights abuses to obtain redress for their injuries, it can also interfere with the conduct of foreign relations with states that do not recognize the validity of national proceedings.

Human rights obligations of non-state actors in conflict situations

2006 ◽  
Vol 88 (863) ◽  
pp. 491-523 ◽  
Author(s):  
Andrew Clapham
Keyword(s):  
Human Rights ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Human Rights Abuses ◽  
Conflict Situations ◽  
Private Military Companies ◽  
International Obligations ◽  
State Actors ◽  
Human Rights Norms

AbstractThe threat to human rights posed by non-state actors is of increasing concern. The author addresses the international obligations of belligerents, national liberation movements and insurgent entities, looks at the growing demands that such armed groups respect human rights norms and considers some of the options for holding private military companies accountable with regard to human rights abuses. The argument developed throughout this article is that all sorts of non-state actors are increasingly expected to comply with principles of international human rights law.

The common law and international law – a dynamic contemporary dialogue

Legal Studies ◽  
2010 ◽  
Vol 30 (1) ◽  
pp. 30-60 ◽  
Author(s):  
Michael Kirby
Keyword(s):  
Human Rights ◽  
International Law ◽  
Customary Law ◽  
Judicial Process ◽  
Remarkable Change ◽  
National Courts ◽  
Human Rights Act ◽  
Human Rights Norms ◽  
The Uk ◽  
The Impact

International law, as expressed in treaties and in customary law, is of growing importance in municipal jurisdictions throughout the world. Some barriers to the use of international law in national courts are identified. Occasionally, they include scepticism and even hostility about this body of law. However, the past 60 years have witnessed a remarkable change in judicial attitudes in final courts in most Commonwealth countries.In the UK, the impact of Europe has helped create an ‘incoming tide’. In South Africa, India and Canada, constitutional provisions have stimulated the change. New Zealand is now affected by its Bill of Rights Act. But, in Australia, none of these forces was available and decisional authority adhered for decades to strict dualism.The changing pace of utilisation of international law in the UK and Australia are described. In the UK, the Human Rights Act 1998 now consolidates a trend already happening in the courts. In Australia, the Mabo decision in 1992 effectively endorsed the Bangalore Principles on the municipal application of international human rights norms. This paper describes the contrasting case-law. In the foregoing countries, it concludes with a response to criticisms of judicial utilisation of international law and a suggestion of the proper jurisprudential basis that can be identified to sustain a judicial process that is now well advanced in the countries surveyed.

scholarly journals Nevsun Resources Ltd. v. Araya

2021 ◽  
Vol 115 (1) ◽  
pp. 107-114
Author(s):  
Beatrice A. Walton
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
International Law ◽  
Common Law ◽  
Supreme Court Of Canada ◽  
Human Rights Abuses ◽  
Customary International Law ◽  
National Courts ◽  
The Supreme Court ◽  
Right Of Action

In Nevsun Resources Ltd. v. Araya, the Supreme Court of Canada declined to dismiss a series of customary international law claims brought by Eritrean refugees against a Canadian mining corporation for grave human rights abuses committed in Eritrea. In doing so, the Supreme Court opened the possibility of a novel front for transnational human rights litigation: common law tort claims based on customary international law. Under the doctrine of adoption, customary international law is directly incorporated into the Canadian common law. However, Canadian courts have not yet upheld a private right of action for violations of customary international law. Writing for a divided court (5–4), Justice Abella allowed the plaintiffs’ claims to proceed, finding that it is not “plain and obvious” that the plaintiffs’ customary international law claims are bound to fail under either Canada's burgeoning “transnational” or “foreign relations” law, or international law itself. In reaching this conclusion, she offered a unique and overdue reflection on the role of national courts in identifying, adopting, and developing custom. A larger majority of the court (7–2) also rejected outright the application of the act of state doctrine in Canada, tracking several common law systems in limiting the doctrine in favor of human rights litigants.

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.

In Lieu of a Conclusion

2018 ◽  
Author(s):  
John Linarelli ◽  
Margot E Salomon ◽  
Muthucumaraswamy Sornarajah
Keyword(s):  
Human Rights ◽  
International Law ◽  
Global Economy ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Current State ◽  
Neoliberal Capitalism ◽  
Transformative Potential ◽  
International Economic Law ◽  
Human Rights Norms

This chapter recaps the main themes of the volume, ie that the international law of the global economy is in a state of disorder. Claims about the justice, fairness, or benefits of the current state of international law as it relates to the global economy are fanciful. A more credible picture emerges when one considers who is protected, against what, and those relations that are valued and those that are not. Moreover, these claims above all require a suspension of a reflective attitude about what international law actually says and does. When it comes to international economic law, power is masked behind a veil of neutrality when it certainly is not neutral in the interests it protects and offends. As for international human rights law, it overlooks the ways in which it props up extreme capitalism foreclosing the possibility of transformative structural change to neoliberal capitalism. In its most radical areas, human rights norms have been blocked from making demands on the design of the global economy precisely because of their transformative potential. Among the central critiques of international law presented in this book is that international law must be justifiable to those who are subject to it.

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.

International Law in Chinese Courts

2019 ◽  
pp. 547-564
Author(s):  
Congyan Cai
Keyword(s):  
International Law ◽  
Foreign Relations ◽  
Professional Competence ◽  
National Courts ◽  
Major Development ◽  
Chinese Perspective ◽  
The Status ◽  
Major Factors ◽  
Private Actors ◽  
The Comparative Study

This chapter adds a Chinese perspective to the comparative study of how national courts treat international law. The chapter finds that the application of international law in Chinese courts is influenced by several major factors, including China’s ambivalence toward international law, the role that the judiciary plays in China’s national governance, and the professional competence of Chinese judges. In particular, the failure of China’s Constitution to specify the status of international law makes secondary laws less likely to embrace international law: many secondary laws do not mention international law at all; only a modest number of secondary laws automatically incorporate international law. This also means that Chinese judges are discouraged from invoking international law in adjudicating disputes. However, in line with and in support of China’s economic opening policy since the late 1970s, Chinese judges regularly apply those treaties that deal with commercial relations between private actors. A major development is that, as China rises as a great power, Chinese courts have begun to prudently become more involved in foreign relations by applying international law.

Corporate Liability Design for Human Rights Abuses: Individual and Entity Liability for Due Diligence

2020 ◽  
Author(s):  
Nick Friedman
Keyword(s):  
Economic Theory ◽  
Human Rights ◽  
Policy Implications ◽  
Global Supply Chains ◽  
Due Diligence ◽  
Human Rights Abuses ◽  
Human Rights Norms ◽  
Corporate Liability ◽  
Human Rights Due Diligence ◽  
Individual Human

Abstract In this article, I critically review the economic theory of corporate liability design, focusing on the allocation of liability between a corporation and its individual human agents. I apply this theory to transnational commercial contexts where human rights abuses occur and assess the likely efficacy of some putative liability regimes, including regimes requiring corporations to undertake human rights due diligence throughout their global supply chains. I advance a set of general considerations justifying the efficacy of due diligence in relation to alternative liability regimes. I argue, however, that due diligence regimes will likely under-deter severe human rights abuses unless they are supported by substantial entity-level sanctions and, in at least some cases, by supplementary liability for individual executives. The analysis has significant policy implications for current national and international efforts to enforce human rights norms against corporations.

scholarly journals Forced to flee : contemporary Colombian refugee migration & internal displacement

2021 ◽  
Author(s):  
Tracy Vunderink
Keyword(s):  
Human Rights ◽  
National Identity ◽  
International Law ◽  
Forced Migration ◽  
Civil Conflict ◽  
Internal Displacement ◽  
Push Factors ◽  
Population Displacement ◽  
Human Rights Abuses ◽  
Criminal Violence

Examines the situation of forced migration in Colombia by identifying how profound inequalities, a lack of governmental authority, and a crisis in national identity have contributed to the emergence of armed irregular groups and the perpetuation of the civil conflict. The Colombian conflict which has last[ed] for more than forty years has perpetuated extreme criminal violence, grave human rights abuses and massive levels of population displacement. Determinants or push factors involved in Colombian internal displacement and asylum seeking are analyzed to draw similarities between these two experiences to further question the distinctions maintained between them in international law.

Is the Good News About Law Compliance Good News About Norm Compliance? The Case of Racial Equality

2018 ◽  
Vol 72 (2) ◽  
pp. 351-385 ◽  
Author(s):  
Zoltán I. Búzás
Keyword(s):  
Human Rights ◽  
International Law ◽  
Racial Equality ◽  
Good News ◽  
Norm Violations ◽  
Norm Compliance ◽  
Human Rights Advocacy ◽  
The Law ◽  
Compliance With The Law ◽  
Human Rights Norms

AbstractThe most important international human rights norms are legalized or codified in international treaty law. Yet pernicious practices at odds with these norms endure and sometimes even increase after legalization. According to conventional wisdom, this is because agents commit to but do not comply with international law and the underlying norms. I develop a theory of evasion to explain why norm violations persist even when states technically comply with the law. Because legalization transposes social norms into international law imperfectly, it creates gaps between laws and underlying norms. Because of these norm-law gaps, legality and normative appropriateness will diverge. States caught between opposing pressures from pro-violation and pro-compliance groups exploit this gap through what I call evasion—the intentional minimization of normative obligations that technically complies with international law but violates underlying norms. I demonstrate the theory's empirical purchase in the cases of the French expulsion of Roma immigrants and the Czech school segregation of Roma children. Under the cover of technical compliance with the law, these states violated the norm of racial equality. The argument cautions that the good news about law compliance is not necessarily good news about norm compliance, broadens our understanding of norm violators' agency, and has practical implications for human rights advocacy.

Sign in / Sign up

Export Citation Format

Share Document