The Idea of International Human Rights 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.

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 ◽

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.

Introduction

The Idea of International Human Rights Law ◽

10.1093/oso/9780198749844.003.0001 ◽

2019 ◽

pp. 1-16

Author(s):

Steven Wheatley

Keyword(s):

Human Rights ◽

International Law ◽

Complexity Theory ◽

Human Rights Law ◽

The Moon ◽

Moral Concept ◽

The Introduction observes the emergence of International Human Rights Law as a discipline in its own right, related to, but different from, international law. It notes the criticisms made by some general international lawyers of the distinct methodologies used by human rights lawyers, making the point that any differences between ‘international law’ and ‘international human rights law’ can only be explained by the influence of the moral concept of human rights on international law doctrine and practice—in the same way the Moon influences the Earth’s tides. The work explains how we can use complexity theory to examine the influence of human rights on international law, introducing complexity theory as a methodology in international law. It then explains the general approach in the book.

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.

Theory and Evidence Regarding the Effectiveness of Human Rights Treaties

Oxford Research Encyclopedia of Politics ◽

10.1093/acrefore/9780190228637.013.544 ◽

2017 ◽

Author(s):

Daniel W. Hill, Jr.

Keyword(s):

Human Rights ◽

International Law ◽

Good Evidence ◽

Human Rights Law ◽

International Treaties ◽

Human Rights Treaties ◽

Sources Of Variation ◽

The adoption by the United Nations of the Universal Declaration of Human Rights in 1948 marked the beginning of the modern international human rights regime. Since then the number of international treaties that protect human rights, as well as the number of internationally recognized rights, has greatly increased. The increasing number and scope of international treaties attests to the fact that advocates for human rights view treaties, which are legally binding in principle, as useful tools for promoting respect for the various rights identified in international law. Only recently have scholars begun to collect and systematically examine evidence concerning the effectiveness of human rights treaties. This new body of research is motivated by a question that has obvious normative import and policy relevance: do we have good evidence that the widespread adoption of international human rights law has had any meaningful impact on the level of respect that states exhibit for the rights articulated in international law? To date, this literature suggests three sources of variation in the effectiveness of human rights treaties: (1) variation in the domestic political and legal institutions that facilitate enforcement and compliance, (2) variation in the nature of the rights protected by different treaties and the nature of violations, and (3) variation in the strength of governments’ commitments to the UN treaty regime. All three sources of variation point to opportunities to advance our understanding of the conditions under which international human rights law can achieve its goals.

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

Domestic Human Rights Adjudication in the Shadow of International Law: The Status of Human Rights Conventions in Israel

Israel Law Review ◽

10.1017/s0021223717000164 ◽

2017 ◽

Vol 50 (3) ◽

pp. 331-388 ◽

Cited By ~ 1

Author(s):

Barak Medina

Keyword(s):

Human Rights ◽

International Law ◽

Democratic Legitimacy ◽

Human Rights Law ◽

Quarter Century ◽

Human Rights Treaties ◽

International Human ◽

The Government

The quarter-century anniversary of Israel's ratification of the major United Nations (UN) human rights treaties is an opportunity to revisit the formal and informal interaction between domestic and international Bills of Rights in Israel. This study reveals that the human rights conventions lack almost entirely a formal domestic legal status. The study identifies a minor shift in the scope of the Israeli Supreme Court's reference to international law, as the Court now cites international human rights law to justify decisions that a state action is unlawful, and not only to support findings that an action is valid. This shift may be the result of other reasons, for instance, a ‘radiation’ of the Court's relatively extensive use of international humanitarian law in reviewing state actions taken in the Occupied Territories. However, it may also reflect a perception of enhanced legitimacy of referring to international human rights law as a point of reference in human rights adjudication following ratification of the treaties.At the same time, the Court continues to avoid acknowledging incompatibility between domestic law and international law. It refers to the latter only to support its interpretation of Israeli constitutional law, as it did before the ratification. This article critically evaluates this practice. While international human rights law should not be binding at the domestic level, because of its lack of sufficient democratic legitimacy in Israel, it should serve as an essential benchmark. The Court may legitimise a human rights infringement that is unjustified according to international law, but such incompatibility requires an explicit justification. The Court, together with the legislature and the government, are required to engage critically with the non-binding norms set by the ratified UN human rights treaties.

Why Do National Court Judges Refer to Human Rights Treaties? A Comparative International Law Analysis of CEDAW

The American Journal of International Law ◽

10.5305/amerjintelaw.109.3.0534 ◽

2015 ◽

Vol 109 (3) ◽

pp. 534-550 ◽

Cited By ~ 6

Author(s):

Christopher McCrudden

Keyword(s):

Human Rights ◽

International Law ◽

National Court ◽

Human Rights Law ◽

Human Rights Treaties ◽

Similarities And Differences ◽

International Human ◽

Domestic Level

Comparative international law promises to bring fresh attention to the similarities and differences in how international law is understood and approached at the domestic level. Comparative international human rights law applies this focus to similarities and differences in the ways that international human rights law is, for example, interpreted at the domestic level by courts.

Human Rights Theory and Comparative International Law Scholarship

10.1093/oso/9780198786627.003.0019 ◽

2018 ◽

Author(s):

Christopher McCrudden

Keyword(s):

Human Rights ◽

International Law ◽

Human Dignity ◽

Human Rights Law ◽

Human Rights Treaties ◽

Domestic Courts ◽

Domestic Use ◽

An account of what we know about the use by domestic courts of international human rights law is identified, based on the findings in this volume and earlier work on the use of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). From that, three aspects of the domestic functions of international human rights treaties are tentatively identified as particularly significant: international human rights law is only partly internationally-directed; domestic courts very seldom appear to be acting as ‘agents’ of international human rights law; and ‘human dignity’ (sometimes by itself, sometimes alongside ‘autonomy’ and ‘equality’) acts as an important meta-principle in the domestic use of international human rights law. The implications these functions have for normative theorising about human rights, in particular practice-dependent theories of human rights, is considered, and a theory of human rights law consistent with this practice is identified.

The Idea of International Human Rights Law

The Idea of International Human Rights Law ◽

10.1093/oso/9780198749844.003.0008 ◽

2019 ◽

pp. 189-204

Author(s):

Steven Wheatley

Keyword(s):

Human Rights ◽

United Nations ◽

International Law ◽

Human Rights Law ◽

Legal Practice ◽

Moral Concept ◽

International Human ◽

The United Nations

Chapter 7 summarizes and clarifies the argument in the book, explaining the distinctive nature of International Human Rights Law. It reminds us that states invented human rights in 1945 with the inauguration of the United Nations Charter. They explained the meaning of the term ‘human rights’ three years later with the adoption of the Universal Declaration of Human Rights, although the concept evolved in a radically different direction than originally expected as states responded to events in apartheid southern Africa. The central insight of this final chapter is that the moral concept of human rights, which emerges from the legal practice, then influences the legal practice. We see this with the introduction, without debate, of the system of Universal Periodic Review, in the pro homine approach to the interpretation of human rights treaties, and in the modern methodology for customary international law formation, which looks first to the communication acts of the United Nations General Assembly. The book concludes by showing how the influence of the idea of human rights on the legal practices can explain the fragmentation of international law and, relatedly, the special nature of International Human Rights Law.

Armed Groups and Customary International Human Rights Law

10.1093/oso/9780198808381.003.0011 ◽

2017 ◽

Author(s):

Katharine Fortin

Keyword(s):

Human Rights ◽

International Law ◽

Human Rights Law ◽

Armed Groups ◽

Legal Obligations ◽

Chapter 11 analyses arguments that armed groups are bound by human rights law by virtue of customary international law. In doing so, the chapter draws together theories that have been explored in Chapters 7 and 9 about the relevance of territory to the acquisition of legal obligations. The chapter starts by examining the debates about how customary international human rights law binding upon armed groups should be constituted, finding that it will be formed through State practice and opinio juris. It ends by examining different articulations of the theory that armed groups are bound by customary international law by accountability mechanisms, evaluating their credence and making suggestions for their improvement.