Conclusion

2018 ◽  
pp. 457-466
Author(s):  
Sandra Fredman
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Political Rights ◽  
Human Rights Law ◽  
Judicial Interpretation ◽  
Analytic Framework ◽  
Economic Rights ◽  
The Relationship ◽  
Fundamental Values

The first part of this book sets out the themes which form the analytic framework for subsequent chapters: the role of comparative materials; the meaning of human rights; the relationship between civil and political rights and socio-economic rights; the role of adjudication; and approaches to judicial interpretation. Subsequent chapters apply these themes to some of the most challenging issues in comparative human rights law. The coverage is not intended to be complete, but aims to bring comparative human rights to life, asking similar questions across several jurisdictions and a range of human rights topics. Judges faced with acutely difficult questions must refer to their textual mandate, the fundamental values informing the text, their own interpretive philosophy, and their perception of their role relative to the legislature. But increasingly, their decision-making can be enriched by considering, in a deliberative sense, how judges in other jurisdictions have faced these questions.

The Interests Protected by the Right to Security of Person

2019 ◽  
pp. 103-122
Author(s):  
Rhonda Powell
Keyword(s):  
Human Rights ◽  
South African ◽  
Capabilities Approach ◽  
European Convention ◽  
Political Rights ◽  
Bill Of Rights ◽  
Human Rights Law ◽  
Economic Rights ◽  
Canadian Charter ◽  
The Right

Drawing on the analysis of security in Chapter 3 and the capabilities approach in Chapter 4, Chapter 5 provides examples of the interests that the right to security of person protects. It also considers the extent to which human rights law already recognizes a link between those interests and security of person. Five overlapping examples are discussed in turn: life, the means of life, health, privacy and the home, and autonomy. Illustrations are brought primarily from the European Convention on Human Rights, the Canadian Charter, and the South African Bill of Rights jurisprudence. It is argued that protection against material deprivations that threaten a person’s existence are as much part of the right to personal security as protection against physical assaults. The right to security of person effectively overcomes the problematic distinction between civil and political rights and socio-economic rights because it sits in both categories.

The Role of Necessity in International Humanitarian and Human Rights Law

2013 ◽  
Vol 47 (2) ◽  
pp. 225-251 ◽  
Author(s):  
Lawrence Hill-Cawthorne
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
Armed Conflict ◽  
International Humanitarian Law ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
Current Article ◽  
The Relationship

The nature of armed conflict has changed dramatically in recent decades. In particular, it is increasingly the case that hostilities now occur alongside ‘everyday’ situations. This has led to a pressing need to determine when a ‘conduct of hostilities’ model (governed by international humanitarian law – IHL) applies and when a ‘law enforcement’ model (governed by international human rights law – IHRL) applies. This, in turn, raises the question of whether these two legal regimes are incompatible or whether they might be applied in parallel. It is on this question that the current article focuses, examining it at the level of principle. Whilst most accounts of the principles underlying these two areas of law focus on humanitarian considerations, few have compared the role played by necessity in each. This article seeks to address this omission. It demonstrates that considerations of necessity play a prominent role in both IHL and IHRL, albeit with differing consequences. It then applies this necessity-based analysis to suggest a principled basis for rationalising the relationship between IHL and IHRL, demonstrating how this approach would operate in practice. It is shown that, by emphasising the role of necessity in IHL and IHRL, an approach can be adopted that reconciles the two in a manner that is sympathetic to their object and purpose.

2. Some General Warnings for the Novice Tort Lawyer

2013 ◽  
Author(s):  
Simon Deakin ◽  
Angus Johnston ◽  
Basil Markesinis
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Real World ◽  
Tort Law ◽  
Ivory Tower ◽  
Human Rights Law ◽  
Liability Rules ◽  
The Real ◽  
The Relationship ◽  
Academic Interests

This chapter discusses issues that readers must bear in mind when encountering criticism of individual rules, decisions, and academic opinions in the remainder of the book. These are: how judicial mentality and outlook affects decision-making; academic interests and practitioners’ concerns; ivory tower neatness v. the untidiness of the real world; tort’s struggle to solve modern problems with old tools; need to reform tort law; whether liability rules are restricted because the damages rules have been left unreformed or because the relationship between liability and damages has been neglected; that tort law is, in practice, often inaccessible to the ordinary victim; and that human rights law is set to influence tort law, but this influence is likely to be gradual and indirect.

Peru’s ‘Intercultural Law’ Proposal

2020 ◽  
pp. 494-515
Author(s):  
Clara María López Rodríguez
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Indigenous Peoples ◽  
Human Rights Law ◽  
Investment Arbitration ◽  
International Legal System ◽  
Investment Law ◽  
Domestic Level

This chapter critically analyses the role of indigenous peoples in international decision-making focusing on two areas of international law: human rights law as adjudicated by the Inter-American Court of Human Rights (Inter-American Court) and investment law as applied by investment arbitration tribunals. The chapter shows that indigenous peoples’ participation in the international legal system can be better facilitated through the recognition of indigenous peoples’ jurisdiction. Focusing on Peru as a case study, this chapter provides a better understanding of the concept of indigenous peoples’ jurisdiction, analysing its nuances and difficulties, but also the importance of regulating such jurisdiction at the domestic level.

Comparative Human Rights Law

2018 ◽  
Author(s):  
Sandra Fredman
Keyword(s):  
Human Rights ◽  
Death Penalty ◽  
Political Rights ◽  
Human Rights Law ◽  
Economic Rights ◽  
Cultural Relativity ◽  
Foreign Materials ◽  
Speech Education ◽  
Similar Solutions ◽  
Rights Issues

Courts in different jurisdictions face similar human rights questions. Does the death penalty breach human rights? Does freedom of speech include racist speech? Is there a right to health? This book uses the prism of comparative law to examine the fascinating ways in which these difficult questions are decided. On the one hand, the shared language of human rights suggests that there should be similar solutions to comparable problems. On the other hand, there are important differences. Constitutional texts are worded differently; courts have differing relationships with the legislature; and there are divergences in socio-economic development, politics, and history. Nevertheless, there is a growing transnational conversation between courts, with cases in one jurisdiction being cited in others. Part I (Chapters 1–5) outlines the cross-cutting themes which shape the ways judges respond to challenging human rights issues. Chapters 1–5 examine when it is legitimate to refer to foreign materials; how universality and cultural relativity are balanced in human rights law; the appropriate role of courts in adjudicating human rights in a democracy; and the principles judges use to interpret human rights texts. The book is unusual in transcending the distinction between socio-economic rights and civil and political rights. Part II (Chapters 6–12) applies these cross-cutting themes to comparing human rights law in five jurisdictions. These chapters focus on seven particularly challenging issues: the death penalty, abortion, housing, health, speech, education, and religion, with the aim of inspiring further comparative examination of other pressing human rights issues. It is primarily court-centred, but also examines courts’ drawbacks.

scholarly journals Corporate Human Rights Obligations under Socio-economic Rights

2021 ◽  
pp. 64-102
Author(s):  
Jernej Letnar Černic
Keyword(s):  
Human Rights ◽  
Significant Contribution ◽  
Financial Resources ◽  
Political Rights ◽  
Human Rights Law ◽  
International Human Rights ◽  
Un Global Compact ◽  
Economic Rights ◽  
Business And Human Rights ◽  
Civil And Political Rights

In the chapter it is examined obligations of business in the field of socio-economic rightsThe author proceeds from the understanding of the importance of socio-economic rights to ensurethe livelihood of people and the creation of human opportunities, as well as their fundamental naturein terms of enjoying civil and political rights. The author is convinced that not only states, but alsocorporations, have certain obligations in the field of socio-economic rights. Because socioeconomicrights are linked to financial resources, corporations can make a significant contribution to securingthem in case of state fragility.The author analyzes international documents, compares national legal systems, as well as othersources (decisions of treaty bodies on human rights), and he concludes that corporate obligationsgain their legitimacy due to the horizontal application of national and international human rights law.It is noted that the UN Guiding Principles on Business and Human Rights, the OECD Guidelines forTransnational Enterprises, the UN Global Compact, the ILO Tripartite Declaration play a significantrole in promoting corporate human rights obligations in the field of socio-economic rights.The author also analyzes the significance of voluntary commitments of both individual corporationsand individual sectors that are generally the part of corporate policy and suggests their questionablelegal nature (lex imperfecta), as they do not provide sanctions for their violation.Analyzing the features of corporate obligations under socio-economic rights, the author takes asa basis the negative and positive dichotomy of human rights, as well as the approach embodied ininternational human rights law on three types of human rights obligations – to respect, protect, ensure.The author concludes that within each of the types of socio-economic rights obligations, corporationshave both preventive (negative and positive) and some corrective (negative and positive) obligations,especially where they control and/or or influence or in proximity of their operations.

scholarly journals Title to Territory and Jurisdiction in International Human Rights Law: Three Models for a Fraught Relationship

2018 ◽  
Vol 31 (2) ◽  
pp. 315-334
Author(s):  
LEA RAIBLE
Keyword(s):  
Human Rights ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Approximation Model ◽  
International Human Rights ◽  
Threshold Criterion ◽  
International Human ◽  
The Relationship ◽  
Separation Model

AbstractIt is by now uncontroversial that states may owe human rights obligations to individuals outside their territory. The debate about extraterritoriality has, so far, focused on the concept and interpretation of jurisdiction. The role of territory in general, and title in particular, in the conceptual landscape has received less attention in comparison. This article aims to fill this gap by showing that (a) title to territory continues to shape interpretations of jurisdiction, and (b) that this should be avoided. To this end, the article first defines jurisdiction in international human rights law and title to territory. Jurisdiction is best understood as a threshold criterion that triggers human rights obligations of states towards particular individuals. Title to territory, on the other hand, is a set of claims to territory designed to uphold minimal stability. The article then introduces three models – the approximation model, the differentiation model, and the separation model – of the relationship between title to territory and jurisdiction in international human rights law and evaluates them in light of their fit with the relational nature of human rights. The result is that the approximation and differentiation models – that is, those that maintain title's influence on the interpretation of jurisdiction in various degrees – fail the success criterion, while the separation model satisfies it.

Members of the Armed Forces and Human Rights Law

2014 ◽  
Author(s):  
Peter Rowe
Keyword(s):  
Human Rights ◽  
International Law ◽  
Military Service ◽  
Armed Conflict ◽  
Armed Forces ◽  
Human Rights Law ◽  
Complex Issue ◽  
The Right ◽  
The Relationship

The national law of individual states is generally clear as to the criteria for defining which entities make up the armed forces, as well as who is entitled to be a member of the armed forces. Whether a state is bound by its human rights obligations while taking part in an international armed conflict outside its own territory, is a complex issue. This chapter examines the term ‘armed forces’, who are entitled to be called members of the armed forces, a state’s national law in relation to its international law obligations, and the role of human rights law from the standpoint of members of the armed forces and others who take an active part in an armed conflict. It also discusses the relationship between peacekeeping and human rights, the role of the United Nations, why members of the armed forces commit human rights violations, the human rights of soldiers, and the right to conscientious objection to military service.

Part V Institutions and Actors, Ch.26 The Role and Impact of Treaty Bodies

2013 ◽  
Author(s):  
Rodley Nigel
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Decision Making Process ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Monitoring Committee ◽  
Human Rights Treaties ◽  
International Human

This article examines the role of treaty bodies in the development and enforcement of international human rights law. It explains that there are now nine core human rights treaties and each of them provided the establishment of its own monitoring committee which includes the Convention on the Elimination of Discrimination against Women (CEDAW) Committee, the Committee against Torture and the Committee on Enforced Disappearances (CED). This article discusses the composition, functions and the decision-making process of these committees.

2. Some Advice for the Novice Tort Lawyer

2019 ◽  
pp. 54-82
Author(s):  
Simon Deakin ◽  
Zoe Adams
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Real World ◽  
Tort Law ◽  
Ivory Tower ◽  
Human Rights Law ◽  
Liability Rules ◽  
The Real ◽  
The Relationship ◽  
Academic Interests

This chapter discusses issues that readers must bear in mind when encountering criticism of individual rules, decisions, and academic opinions in the remainder of the book. These are: how judicial mentality and outlook affects decision-making; academic interests and practitioners’ concerns; ivory tower neatness v. the untidiness of the real world; tort’s struggle to solve modern problems with old tools; need to reform tort law; whether liability rules are restricted because the damages rules have been left unreformed or because the relationship between liability and damages has been neglected; that tort law is, in practice, often inaccessible to the ordinary victim; and that human rights law is set to influence tort law, but this influence is likely to be gradual and indirect.

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