The Margin of Appreciation Revisited

Margin Of Appreciation ◽

The idea that states have discretion in complying with their human rights obligations, and the idea that human rights obligations should be compatible with a degree of diversity between states, are either trivial or misleading. In order to assess properly the doctrine of the Margin of Appreciation, one has to reconstruct it as a normative thesis about the conditions under which an international human rights court should place substantial weight on a decision by a domestic authority. Thus understood, however, the doctrine is problematic as it offends the values underlying human rights and the rule of international law. The chapter evaluates Andreas Follesdal’s particular defence of the Margin of Appreciation and argues that neither sovereignty nor democracy provides normative support for unqualified judicial deference. It argues further that the exceptions Follesdal wishes to place on deference to democratic institutions end up covering the whole of the scope of human rights obligations, making the idea of deference redundant.

Conceptions And Interpretations of Human Rights in Europe and Asia: Normative Aspects

E-Theologos Theological revue of Greek Catholic Theological Faculty ◽

10.2478/v10154-010-0011-9 ◽

2010 ◽

Vol 1 (2) ◽

pp. 117-135

Author(s):

Bożena Drzewicka

Keyword(s):

Human Rights ◽

International Law ◽

International Humanitarian Law ◽

Humanitarian Law ◽

The West ◽

Human Rights Protection ◽

Rights Protection ◽

The World ◽

Conceptions And Interpretations of Human Rights in Europe and Asia: Normative AspectsThe issue of confronting values between civilizations has become very important. It influences not only the level of international politics but also the international normative activity. It is very interesting for the modern international law and its doctrine. The most important factor of causing huge changes in the system of international law is still the international human rights protection and the international humanitarian law which is related to it. It is very difficult to create one catalogue of executive instruments and procedures but it is possible to influence the attitude toward the basic paradigms. The frictions appear from time to time and move to other planes. The West and Asia are still antagonists in the dialogue on the future of the world. The article is a contribution to the intercivilizational dialogue.

The Review of Articles from Korea International Law Review (Vol. 1-49): International Human Rights Law

Korea International Law Review ◽

10.25197/kilr.2018.51.45 ◽

2018 ◽

Vol 51 ◽

pp. 45-62

Author(s):

Buhm Suk Baek

Keyword(s):

Human Rights ◽

International Law ◽

Human Rights Law ◽

Contemporary International Tribunals

10.1093/oso/9780190923846.003.0009 ◽

2018 ◽

Author(s):

Antônio Augusto ◽

Cançado Trindade

Keyword(s):

Human Rights ◽

International Law ◽

Ad Hoc ◽

International Criminal ◽

International Criminal Tribunals ◽

International Human ◽

International Tribunals ◽

Cross Fertilization

More recently, jurisprudential cross-fertilization has kept on being pursued in particular by international human rights tribunals and international criminal tribunals. This is reassuring, as, despite their distinct jurisdictions, their work is complementary, in their common mission of imparting justice, in distinct domains of international law. Jurisprudential cross-fertilization fosters cohesion and the unity of law. Particularly attention is currently devoted to the preservation of the legacy of the ad hoc international criminal tribunals.

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 ◽

Fragmentation Of International Law

Moral Concept ◽

Customary 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.

Germany

10.1093/oso/9780198786627.003.0006 ◽

2018 ◽

Author(s):

Valentin Aichele

Keyword(s):

Human Rights ◽

International Law ◽

Direct Effect ◽

Federal Courts ◽

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.

Governmental human rights focal points in federal contexts: The implementation of the Istanbul convention in Switzerland as a case study

Netherlands Quarterly of Human Rights ◽

10.1177/09240519211016947 ◽

2021 ◽

pp. 092405192110169

Author(s):

Matthieu Niederhauser

Keyword(s):

Domestic Violence ◽

Human Rights ◽

International Law ◽

Focal Points ◽

Human Rights Law ◽

Federal States ◽

The implementation of international human rights law in federal States is an underexplored process. Subnational entities regularly enjoy a degree of sovereignty, which raises questions such as whether they implement obligations of international law and how the federal level may ensure that implementation takes place at the subnational level. This article aims to answer these questions, using the implementation of the Convention on Preventing and Combating Violence against Women and Domestic Violence (Convention) in Switzerland as a case study. To implement the Convention at the cantonal level, federal actors decided to use networks of civil servants in charge of domestic violence issues, who act as governmental human rights focal points (GHRFPs). This article is based on original empirical data, on 25 interviews with State officials who participate in this implementation. The findings show how complex GHRFPs networks work in practice to implement the Convention and highlight the role played by numerous non-legal State actors in this process. As a result, the article argues that international human rights law implementation becomes more diversified both within and across federal States.

Testing for Negative Spillovers: Is Promoting Human Rights Really Part of the “Problem”?

International Organization ◽

10.1017/s0020818320000661 ◽

2021 ◽

Vol 75 (1) ◽

pp. 71-102

Author(s):

Anton Strezhnev ◽

Judith G. Kelley ◽

Beth A. Simmons

Keyword(s):

Human Rights ◽

International Law ◽

Instrumental Variable ◽

Burden Of Proof ◽

Negative Consequences ◽

Human Rights Law ◽

First Order ◽

Trade Offs ◽

AbstractThe international community often seeks to promote political reforms in recalcitrant states. Recently, some scholars have argued that, rather than helping, international law and advocacy create new problems because they have negative spillovers that increase rights violations. We review three mechanisms for such spillovers: backlash, trade-offs, and counteraction and concentrate on the last of these. Some researchers assert that governments sometimes “counteract” international human rights pressures by strategically substituting violations in adjacent areas that are either not targeted or are harder to monitor. However, most such research shows only that both outcomes correlate with an intervention—the targeted positively and the spillover negatively. The burden of proof, however, should be as rigorous as those for studies of first-order policy consequences. We show that these correlations by themselves are insufficient to demonstrate counteraction outside of the narrow case where the intervention is assumed to have no direct effect on the spillover, a situation akin to having a valid instrumental variable design. We revisit two prominent findings and show that the evidence for the counteraction claim is weak in both cases. The article contributes methodologically to the study of negative spillovers in general by proposing mediation and sensitivity analysis within an instrumental variables framework for assessing such arguments. It revisits important prior findings that claim negative consequences to human rights law and/or advocacy, and raises critical normative questions regarding how we empirically evaluate hypotheses about causal mechanisms.

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

Nordic Journal of International Law ◽

10.1163/157181008x374870 ◽

2008 ◽

Vol 77 (4) ◽

pp. 319-364 ◽

Cited By ~ 1

Author(s):

Lena Skoglund

Keyword(s):

Human Rights ◽

International Law ◽

War On Terror ◽

The State ◽

Security Threats ◽

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.

Judgment of the Supreme Court of Canada of February 28, 2020, on Nevsun v. Araya: a “quiet revolution” in the assessment of the status of corporations under public international law?

Meždunarodnoe pravosudie ◽

10.21128/2226-2059-2021-2-25-39 ◽

2021 ◽

Vol 11 (2) ◽

pp. 25-39

Author(s):

Vera Rusinova ◽

Olga Ganina

Keyword(s):

Human Rights ◽

Supreme Court ◽

International Law ◽

Supreme Court Of Canada ◽

Human Rights Law ◽

Public International Law ◽

The Supreme Court ◽

The article analyses the Judgment of the Supreme Court of Canada on the Nevsun v. Araya case, which deals with the severe violations of human rights, including slavery and forced labor with respect of the workers of Eritrean mines owned by a Canadian company “Nevsun”. By a 5 to 4 majority, the court concluded that litigants can seek compensation for the violations of international customs committed by a company. This decision is underpinned by the tenets that international customs form a part of Canadian common law, companies can bear responsibility for violations of International Human Rights Law, and under ubi jus ibi remedium principle plaintiffs have a right to receive compensation under national law. Being a commentary to this judgment the article focuses its analysis on an issue that is of a key character for Public International Law, namely on the tenet that international customs impose obligations to respect human rights on companies and they can be called for responsibility for these violations. This conclusion is revolutionary in the part in which it shifts the perception of the companies’ legal status under International Law. The court’s approach is critically assessed against its well-groundness and correspondence to the current stage of International law. In particular, the authors discuss, whether the legal stance on the Supreme Court of Canada, under which companies can bear responsibility for violations of International Human Rights Law is a justified necessity or a head start.