The treatment of aliens under contemporary international law : international human rights norms

Persons With Disabilities ◽

Public International Law ◽

Monitoring Mechanism ◽

International Human ◽

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.

The treatment of aliens under contemporary international law : international human rights norms

Recueil des Cours, Collected Courses, Volume 161 (2007) ◽

10.1163/ej.9789028609709.329-444.6 ◽

2010 ◽

pp. 390-408

Keyword(s):

Human Rights ◽

International Law ◽

International Human ◽

International Constitutional Law and Judicial Review of Domestic Human Rights Legislation

ICL Journal ◽

10.1515/icl-2018-0064 ◽

2019 ◽

Vol 13 (2) ◽

pp. 87-118

Author(s):

Laura-Stella Enonchong

Keyword(s):

Human Rights ◽

International Law ◽

Constitutional Law ◽

Human Rights Law ◽

Domestic Sphere ◽

Human Rights Regime ◽

International Human ◽

Abstract This article discusses the idea of international human rights law as ‘constitutional law’. It applies the French concept of Le contrôle de conventionnalité des lois, to demonstrate the constitutional potentials of international human rights law in the domestic sphere. In most monist constitutional systems based on the French civilian model, international law takes precedence over acts of parliament and other domestic legislation. Due in part to that hierarchy, conventionnalité permits the courts to review domestic law for compatibility with international law. From that perspective, international human rights norms can be said to have assumed a ‘para-constitutional’ function. Using two case studies from francophone Africa, this article argues that conventionnalité has the potential to play a significant role in the domestic implementation of international human rights and ultimately contributing to a more comprehensive domestic human rights regime.

Reconciliation between the Islamic Human Rights and International Law: Prospects and Complications

International Journal of Multicultural and Multireligious Understanding ◽

10.18415/ijmmu.v6i4.1157 ◽

2019 ◽

Vol 6 (4) ◽

pp. 609

Author(s):

Siamak Karamzadeh ◽

Massoud Alizadeh

Keyword(s):

Human Rights ◽

International Law ◽

Islamic Law ◽

Historical Aspect ◽

Historical Fact ◽

International Human ◽

Human Rights Norms ◽

The Relationship

The relationship between International Human Rights and Islamic Law has been always an arguable debate at the international level. This issue can be considered by jurists in two aspects. First, from National Law perspective, especially in the countries in which the law, to some extent is affected by Islamic rules. Second, by view of International Law to see that to what extent, there would be compatibility or likely contradiction between human rights norms and Islamic Law.Considering the historical aspect of the issue, this article is suggesting that although from the outset, International Law tried to separate religion from policy, but this historical fact would not prevent theoretical conciliation between religion and Human Rights rules. The review of the content of International Human Rights Law reveals that the rules in the systems in most part are compatible. However, in some cases the incompatibility between these two group pf rules is observed. The existence of different basis under Islamic Law and International Law makes the least difference unavoidable. The constant dialogue between Islamic scholars and publicists can decrease this difference in future.

Linking Self-Determination and Human Rights

10.1093/oso/9780198713258.003.0028 ◽

2018 ◽

Author(s):

Will Kymlicka

Keyword(s):

Human Rights ◽

International Law ◽

Self Determination ◽

International Human ◽

Human Rights Norms ◽

Special Responsibility ◽

Second International

Peter Jones argues that human rights can address violations of the determination principle, but cannot address violations of the selfhood principle. In this commentary, it is argued that international human rights norms should address both violations, for two key reasons. First, these violations are continuous in their underlying ideologies and in their effects on those whose rights to self-determination are denied. Second, international law was itself complicit in creating both categories of violations, and so has a special responsibility to correct them.

Domestic Application of International Human Rights Norms and Universal Jurisdiction

Oxford Research Encyclopedia of International Studies ◽

10.1093/acrefore/9780190846626.013.45 ◽

2010 ◽

Author(s):

Ronald C. Slye

Keyword(s):

Human Rights ◽

International Law ◽

Legal System ◽

The United States ◽

Universal Jurisdiction ◽

International Human ◽

Human Rights Norms ◽

Domestic Law

Domestic courts play an important role in the adjudication of international law, including international human rights law. The relationship between international and domestic law has often been characterized as a continuum between monism and dualism. In a monist system, international law is automatically a part of domestic law, and a conflict between the two is resolved in favor of international law. In a dualist system, domestic law is superior to international law within the domestic legal system, while international law is superior to domestic law within the international legal system. A conflict between domestic law and international law is thus not always resolved in the same way in both systems. In addition, one of the areas with the most active use of international law in a domestic legal system is under a theory of universal jurisdiction. Universal jurisdiction most often involves both the incorporation of international law into a domestic legal system and the assertion outward (extraterritorially) of domestic judicial system. Universal jurisdiction arose initially in the context of criminal prosecutions, but is also found to some extent in civil litigation, particularly in the United States. Under the principle of universal jurisdiction, a state may assert jurisdiction over an offender regardless of the nationality of the offender or victim, the place of commission of the wrongful act, or any other link to the state asserting jurisdiction.

The Machinery of International Law and Democratic Backsliding: The Problem of Term Limits

Law & Ethics of Human Rights ◽

10.1515/lehr-2020-2012 ◽

2020 ◽

Vol 14 (1) ◽

pp. 1-18

Author(s):

Tom Ginsburg

Keyword(s):

Human Rights ◽

International Law ◽

Term Limits ◽

Term Limit ◽

International Courts ◽

International Human ◽

AbstractOur era is one of democratic backsliding. International courts and institutions have provided some bulwark against this trend, but we are now witnessing leaders seeking to use international law to extend their power. Courts in several countries have relied on international human rights norms to facilitate term limit extensions by leaders seeking to retain power beyond what is constitutionally allowed. This Article documents these cases and calls for a more robust and substantive international law of democracy-protection.

Human rights implications of the NonRefoulement & Development

International Journal for Empirical Education and Research ◽

10.35935/edr/25161 ◽

2018 ◽

pp. 1-16

Author(s):

Imrul Sheikh

Keyword(s):

Human Rights ◽

International Law ◽

Asylum Seekers ◽

International Protection ◽

Customary International Law ◽

International Human ◽

Human Rights Norms ◽

Refugees And Asylum Seekers

States are obliged for protection of refugees under international law on account of their membership of United Nations and signature or accession to International Refugee Instruments as well as International Human Rights Instruments. The legal basis for this international protection may either be customary international law or conventional international law. The basic customary international laws applicable to them are those pertinent fundamental human rights found in the International Bill of Human Rights. Hence, it is submitted that all states should protect the fundamental human rights of refugees under customary international law. Principle of non-refoulement is one of them. The refugee regime has generated a serious body of law that elaborates basic human rights norms and has important implications in and beyond the refugee context. There are a number of universal, regional and domestic human rights instruments and mechanisms which can be employed to enhance the protection of refugees and asylum seekers. This research aims at finding out the role of principle of non-refoulement in protecting refugees and asylum seekers under international human rights law.

The Importance of Being Quasi-Democratic - the Domestication Of International Human Rights in American and Arab Politics

Victoria University of Wellington Law Review ◽

10.26686/vuwlr.v38i2.5523 ◽

2007 ◽

Vol 38 (2) ◽

pp. 317 ◽

Cited By ~ 1

Author(s):

David Mednicoff

Keyword(s):

Human Rights ◽

International Law ◽

The United States ◽

Democratic Legitimacy ◽

Legal Norms ◽

Political Processes ◽

Regime Types ◽

International Human ◽

The paper builds on a comparative treatment of the politics of contestation and incorporation of human rights law in the United States, Morocco and Tunisia to highlight the salience of international law's democratic legitimacy problems of popular representation and mobilization. The author shows that Morocco enjoyed the most sustained and broadest recent mobilisation of these cases in the domestic extension of international human rights norms. This finding suggests four conclusions. First, democratic legitimacy problems for international law are similar across more and less democratic regime types. Second, the democratic legitimacy problem allows states to use populist appeals to justify their internal deviations from international legal norms. Third, international human rights norms stand the best possibility of mitigating these legitimacy concerns and permeating domestic practice when they have a basis in a pattern of contestation that engages more than a narrow elite, and which might therefore be called quasidemocratic. Fourth, these points demonstrate the imperative of comparing the political processes for the domestic incorporation of international law across different spaces and regime types.

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

Nordic Journal of International Law ◽

10.1163/15718100020296396 ◽

2000 ◽

Vol 69 (4) ◽

pp. 413-447 ◽

Cited By ~ 3

Author(s):

Keyword(s):

Human Rights ◽

Supreme Court ◽

International Law ◽

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.