Human Rights Theory and Comparative International Law Scholarship

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

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.

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.

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.

Rewarding in International Human Rights Law?

AJIL Unbound ◽

10.1017/aju.2021.29 ◽

2021 ◽

Vol 115 ◽

pp. 232-236

Author(s):

Siobhán McInerney-Lankford

Keyword(s):

Human Rights ◽

International Law ◽

Human Dignity ◽

Complex Structure ◽

Human Rights Law ◽

International Action ◽

Compliance in international law remains a challenge and the search to understand whether and why states comply with international human rights law endures as well. This essay endorses van Aaken and Simsek's contention that rewarding is an important yet underexplored mechanism for ensuring compliance with international law, but suggests that certain features of international human rights law may make rewarding less apposite in the human rights sphere for three interrelated reasons. First, compliance with international human rights law depends on domestic as well as international action, potentially rendering rewarding between states less relevant. Second, the unique and complex structure of international human rights law obligations and their measurement may make an assessment of the effectiveness of rewarding more difficult, at least for certain categories of rights and obligations. Third, rewarding may be inappropriate in international human rights law given its core normative purpose of protecting human dignity. As such, this essay explores whether rewarding can or should be pursued in international human rights law.

The Role of Domestic Courts in International Human Rights Law: The Constitutional Court of Colombia and Free, Prior and Informed Consent

International Journal on Minority and Group Rights ◽

10.1163/15718115-02303001 ◽

2016 ◽

Vol 23 (3) ◽

pp. 355-381

Author(s):

José Parra

Keyword(s):

Human Rights ◽

International Law ◽

Indigenous Peoples ◽

Soft Law ◽

Constitutional Court ◽

Human Rights Law ◽

Domestic Courts ◽

The internalization of international law by domestic courts is central to the effective implementation of international human rights law. This is particularly true for emerging rights rooted in soft law. In this regard, indigenous peoples’ rights have significantly expanded in international law over the past 20 years, essentially in the form of soft law. As a case study, the review of the jurisprudence of the Constitutional Court of Colombia illustrates ‘progressive’ interpretation of soft law, notably on free, prior and informed consent, which is enshrined in the United Nations Declaration on the Rights of Indigenous Peoples. Thus, domestic courts not only implement international human rights law, but they also foster its development.

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 ◽

The Fallacy of Effective Human Rights Protection under Relevant Treaty Law when Armed Groups Commit Violations

10.1093/oso/9780198821946.003.0007 ◽

2018 ◽

Author(s):

Tilman Rodenhäuser

Keyword(s):

Human Rights ◽

Human Rights Violations ◽

Human Rights Law ◽

Armed Groups ◽

Human Rights Protection ◽

Rights Protection ◽

Human Rights Treaties ◽

Chapter 5 adds to the contemporary discourse on human rights obligations of non-state armed groups by showing that in many situations, there is a clear legal need for these obligations. This chapter first engages in the debate on whether and to what extent certain human rights treaties address armed groups directly. Second, it shows that under the law of state responsibility, states are generally not responsible for human rights violations committed by non-state entities. Third, it recalls that under international human rights law, states have an obligation to protect human rights against violations committed by armed groups. However, it argues that because this cannot be a strict obligation but is one that depends on states’ capacities and the particular circumstances, often this framework cannot adequately protect individuals against human rights violations by armed groups. The result is a legal and practical need for human rights obligations of non-state armed groups.

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.

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.