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

2008 ◽  
Vol 77 (4) ◽  
pp. 319-364 ◽  
Author(s):  
Lena Skoglund
Keyword(s):  
Human Rights ◽  
International Law ◽  
War On Terror ◽  
The State ◽  
Security Threats ◽  
International Human Rights ◽  
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.

Jurisdictional Immunities of the State for Serious Violations of International Human Rights Law or the Law of Armed Conflict

2013 ◽  
Vol 50 ◽  
pp. 243-287 ◽  
Author(s):  
Paul David Mora
Keyword(s):  
Human Rights ◽  
International Law ◽  
Armed Conflict ◽  
The State ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Customary International Law ◽  
Law Of Armed Conflict ◽  
International Human

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.

Implementing Decisions of International Human Rights Institutions – Evidence from the United Nations Human Rights Committee

2019 ◽  
Vol 30 (3) ◽  
pp. 753-777
Author(s):  
Vera Shikhelman
Keyword(s):  
Human Rights ◽  
United Nations ◽  
International Law ◽  
The State ◽  
International Human Rights ◽  
Human Rights Protection ◽  
Rights Protection ◽  
International Human ◽  
The United Nations ◽  
Internal Capacity

Abstract In recent years, there has been an increasing amount of research about the implementation of international law. However, there has been almost no empirical research about implementing decisions of international human rights institutions. The decisions of those institutions are usually regarded as soft law, and states do not have a clear legal obligation to implement them. In this article, I bring original empirical data about how and when states implement decisions of the United Nations Human Rights Committee (HRC) in individual communications. I hypothesize that the following factors influence the readiness of states to implement the views of the HRC: (i) the level of democracy and human rights protection in the state; (ii) internal capacity; (iii) strength of civil society; (iv) type of remedy; (v) representation on the HRC; (6) subject matter of the communication. I find that the most important factor for implementing remedies granted by the Committee is the high human rights score of the state. The internal capacity of the state is also significant but to a lesser extent than found in previous studies. Also, I find a certain connection between the state being represented on the HRC and its willingness to implement the remedies.

Sovereign Rights of the State and the Scope of their Implementation in the Context of Development of the International Human Rights Law

2020 ◽  
Vol 11 (1) ◽  
pp. 164
Author(s):  
Iryna PROTSENKO ◽  
Кostiantyn SAVCHUK
Keyword(s):  
Human Rights ◽  
International Law ◽  
The State ◽  
Fundamental Rights ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Adequate Treatment ◽  
International Human ◽  
The Right

In the contemporary science of international law, the state sovereignty issue lacks adequate treatment. In particular, the list and essence of sovereign rights and duties of the state are not defined, although these are referred to in some international legal instruments and resolutions of international courts and arbitrations. In addition, particular circumstances are being under development, which require if not precise outlining of the catalogue of fundamental rights of states, then at least determining the essence of some of these rights and the scope of their implementation. It goes about developing the practice to limit specific sovereign rights of the state to ensure the implementation of human rights (notably, the ones not directly related to the respective rights of the state). In this very way, the state is limited in its right to determine its own immigration policy. The fact is that the European Court of Human Rights (ECtHR) has ruled in some of its judgments that by implementing this right, the state violates the right to respect for private and family life provided for by the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (ECHR). This resulted in ECtHR`s practice to be somewhat considered in the draft articles on the expulsion of aliens elaborated by the International Law Commission (ILC) in 2014. The examples from ECtHR`s practice analyzed in this paper provide the basis for the conclusion that the development of the International Human Rights Law is gradually narrowing the scope of the internal sovereign rights of the state.

scholarly journals Global laws for a global economy: A case for bringing multinational corporations under international human rights law

SURG Journal ◽  
2013 ◽  
Vol 6 (2) ◽  
pp. 14-23
Author(s):  
Alicia Grant
Keyword(s):  
Human Rights ◽  
International Law ◽  
Multinational Corporations ◽  
The State ◽  
International Human Rights Law ◽  
International Level ◽  
Human Rights Law ◽  
International Human Rights ◽  
Host State ◽  
International Human

Economic globalization has created a governance gap, often leaving powerful corporations largely unregulated. The result has been frequent and gross violations of human rights that too often go unpunished. This article outlines the mechanisms that currently exist for regulating the activities of multinational corporations including: (i) corporate self-regulation; (ii) regulation within the state where a company is operating (the host state); (iii) regulation within the state where a parent company is incorporated (the home state); and (iv) codes of conduct at the international level. The advantages and insufficiencies of each level are highlighted, and an argument is subsequently made that the governance gap will only be filled if firms are subjected to binding international law. The article then turns to an examination of international human rights law and discusses the place of non-state actors within this framework. It finds that corporations do have obligations under international human rights law despite the fact that systems for enforcing these duties do not currently exist. The final section discusses the difficulties that might be associated with creating enforcement mechanisms. The article ultimately argues that binding regulation at the international level is necessary in the long run; however, due to the difficulties in achieving this objective, regulation should also continue to be improved at the company, industry, host-state, and home-state levels. Keywords: multinational corporations; international law; human rights; corporate activity (regulation of)

scholarly journals Features of the status and protection of the rights of persons living on the occupied territories

2021 ◽  
pp. 433-446
Author(s):  
Oleksiy Kresin ◽  
Iryna Kresina
Keyword(s):  
Human Rights ◽  
International Law ◽  
Private Property ◽  
The State ◽  
International Humanitarian Law ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
International Human

Based on the concluded study, the authors demonstrate that international law recognizes the unconditional responsibility of the power occupying or exercising effective (overall, general, de facto) control over the territory for the human rights of its population, and in particular the civilian population as protected persons. Such liability exists independently of the personal liability of the representatives (agents) of that State. In this case, the state, which exercises control over the territory, is automatically responsible for any actions of organizations under its control. At the same time, it is quite difficult to determine the share of responsibility of a sovereign state for the implementation of human rights on a territory over which that state does not exercise control. The legislation of Ukraine imposes responsibility for the protection and violations of human rights in the ORDLO on Russia under both international humanitarian law and international human rights law. International humanitarian law imposes on the occupying state the obligation to ensure all the minimum humanitarian needs of the population, its basic rights related to the preservation of life, health and dignity (with special emphasis on the rights of women and children), private property, effective protection of these rights and protection from any unlawful violence, preservation of the infrastructure of the territory. The occupying State cannot be absolved of responsibility for serious human rights violations, including war crimes and crimes against humanity. Decisions of international courts unequivocally extend these obligations, as well as obligations under international human rights law, to all forms of illegal control of the territory of another state. At the same time, the Constitution and legislation of Ukraine do not provide for the refusal of the state to ensure and protect human rights on its territory, even in conditions of state of emergency or war. Ukraine ensures the realization of the rights of the ORDLO population on the territory of other regions of Ukraine. Ukraine also protect and restore human rights in the territory of the ORDLO with the means provided by international law.

scholarly journals The Handling Impact Of Foreigners Seeking Protection According To Australian Policies And Its Impact On Indonesia

2019 ◽  
Vol 1 (2) ◽  
pp. 49-58
Author(s):  
Faridh Al Wajidi ◽  
M. Alvi Syahrin
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
International Law ◽  
Asylum Seekers ◽  
Secondary Data ◽  
The State ◽  
International Human Rights ◽  
International Human ◽  
The Republic

The existence of a conflict that occurs in a country makes the citizens of the country feel uncomfortable with their country so that some of them decide to run for protection. The flight has an influence on the State of Australia because it is one of the countries that are the destination countries for Asylum Seekers and so on. This then made the State of Australia make a policy in terms of maintaining sovereignty and fighting human rights crimes such as trafficking and people smuggling. The policy is Operation Sovereign Borders which turns out to experience a conflict harvest because it is not in accordance with the requirements of international law. The ratification of this policy aims at how to handle protection seekers in accordance with the requirements of International Law and law enforcement in the event of a violation based on the Operation Sovereign Borders policy. Writing KTI uses the normative juridical method. The specifications used are descriptive-analytic. Then the data used is secondary data. In its implementation, Operation Sovereign Borders is still inappropriate so that it violates the sovereignty of the Republic of Indonesia and violates the ethics of neighboring countries (good neighborliness), besides that it also violates the principles of international law contained in the 1952 Convention and instruments of International Human Rights (non-refoulement principle)

Israel's Supreme Court and International Human Rights Law: The Judgement on ‘Moderate Physical Pressure’

2000 ◽  
Vol 69 (4) ◽  
pp. 413-447 ◽  
Author(s):  
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
International Law ◽  
International Human Rights Law ◽  
International Human Rights ◽  
Substantial Risk ◽  
International Human ◽  
Israeli Supreme Court ◽  
Human Rights Norms ◽  
Spiral Model

AbstractOn September 6, 1999, the Israeli Supreme Court, sitting as the High Court of Justice, handed down its latest judgement on the question of the use of ‘moderate physical pressure’. The lack of substantial references to international law in the Court's reasoning was notable. The present article examines the possible reasons for the reluctance to introduce international law and goes on to analyse the effects of this reluctance. The analysis finds that the reasons for leaving international human rights norms out are less than compelling and that keeping the necessity defence for interrogators using force against detainees leaves a substantial risk of abuse.The article goes on to place the judgement in the larger context of Israeli human rights practices. By applying the so-called ‘spiral model’, developed within international relations theory, it is possible to examine linkages between international norms and domestic change. The model allows for an evaluation of what progress has been achieved so far and for suggestions as to which measures are still needed. It is found that the judgement reasonably can be interpreted as a tactical concession and that further progress in efforts to eradicate the use of force against detainees is dependent upon a change in the attitude of the Israeli public. Future efforts should thus be aimed at influencing Israeli public opinion to ensure that torture is eliminated from Israeli interrogation practices.

scholarly journals Is All Fair in Distancing Human Rights from Customary International Law Rule on State of Necessity?

2020 ◽  
Vol 11 (3) ◽  
pp. 53
Author(s):  
Dmitry V. Krasikov ◽  
Nadezhda N. Lipkina
Keyword(s):  
Human Rights ◽  
International Law ◽  
Basic Research ◽  
The State ◽  
Theory And Practice ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Rfbr Grant ◽  
International Human

The international human rights law theory and practice traditionally follow the path of distancing human rights from the state of necessity under general international law. The existence of derogation clauses contained in major human rights treaties excludes the possibility for States parties to invoke the customary rule on necessity to excuse non-compliance with the obligations under such treaties (the narrow distancing approach). Presently, a broader distancing approach, covering human rights obligations outside the treaties’ derogation regimes, is evolving employing certain alternative grounds for departure from human rights obligations. The article argues that the way the broader distancing approach evolves raises doubts as to its conformity with its intrinsic rationale. To address this concern a due account should be taken of the pro homine reasoning for distancing human rights from the state of necessity. The present paper is a part of a larger project “Circumstances precluding wrongfulness of conduct: the analysis of functional role and applicability parameters in the framework of International Human Rights Law” supported by the Russian Foundation for Basic Research (RFBR Grant No. 18-011-00660).

scholarly journals Stanowisko Afganistanu wobec przyjęcia instrumentów międzynarodowej ochrony praw człowieka, cz. I: lata 1919–1973

2021 ◽  
Vol 19 (2) ◽  
pp. 16-33
Author(s):  
Klaudia Cenda-Miedzińska ◽  
Keyword(s):  
Human Rights ◽  
International Law ◽  
The State ◽  
Political Arena ◽  
Historical Sources ◽  
International Human Rights ◽  
Sharia Law ◽  
Degrading Treatment ◽  
International Human ◽  
International Instruments

The article is the first part of studies showing Afghanistan’s path towards adopting international instruments to protect human rights. Based on acts of national law, Sharia law, and historical sources, the text analyses the conditions that, from the time of regaining independence to the fall of the Kingdom of Afghanistan, led the State to accept or reject international human rights agreements. The structure of the article corresponds to the research objectives, which are: to show the codification of human rights in the internal legal order right after regaining independence, the role that Sharia and Pashtunwali played in the adoption of international human rights acts, the attitude of Afghanistan to these instruments in the context of the internal political situation of the State. Special attention was paid to the understanding of human rights in Nizam Nama-e-Dowlat Alliyeh Afghanistan, Osol-e-Assasi Dowlat-e-Allia-e- Afghanistan, Assasi Qanun, Pashtunwali, the conflict of Sharia law with international law concerning the equality of women, freedom from torture and inhuman, degrading treatment, right to life and religious freedom, analysis of changes in the political arena of the State.

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

2010 ◽  
Vol 1 (2) ◽  
pp. 117-135
Author(s):  
Bożena Drzewicka
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
International Human Rights ◽  
The West ◽  
Human Rights Protection ◽  
Rights Protection ◽  
The World ◽  
International Human

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.

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