scholarly journals Zagrożenie życia narodu jako przesłanka wstępna derogacji zobowiązań w dziedzinie praw człowieka

2020 ◽  
pp. 9-41
Author(s):  
Tadeusz Jasudowicz
Keyword(s):  
Human Rights ◽  
International Law ◽  
Constitutional Law ◽  
Self Determination ◽  
Political Rights ◽  
States Of Emergency ◽  
Treaty Monitoring ◽  
Public Emergency ◽  
Civil And Political Rights

To determine the fate of human rights in extreme situations, the treaties contain a mechanism for derogating from obligations, i.e. derogations from their enforceability in such exceptional situations. The initial and fundamental criterion under which derogation steps are admissible is the existence of an exceptional public emergency that threatens the life of the nation, as referred to in Article 4(1) of the International Covenant on Civil and Political Rights and Article 15(1) of the European Charter of Human Rights, and about which Professor Anna Michalska wrote so competently in 1997. Neither the constitutions of modern states nor their practice of introducing states of emergency are helpful in defining this criterion more precisely; most often, they do not use it at all. Unfortunately, it is not to be found in Chapter XI of the Polish Constitution “States of Emergency”, nor in the laws of 2002 regulating these states. In the practice of the treaty monitoring bodies (Human Rights Committee in the ICCPR system; the European Commission and the Court of Human Rights in the ECHR system), we do not find incontestable nor indisputable indications. The concept of the “nation” is referred to society as a whole and is to be associated with its physical survival. In the author’s opinion, this is not the correct approach, as it is and must be about a “living nation”, a nation effectively exercising its rights. The enslavement of a nation, its subjugation, elimination of opportunities for its self-determination – far from its extermination – can unquestionably meet the requirements of the criterion of a threat to the life of the nation. The study of constitutional law (the nation-sovereign) and international law (the principle and right to self-determination of the nation) unequivocally confirms this thesis.

scholarly journals From High Hopes to Disillusionment: Indigenous Peoples' Struggle to (re)Gain Their Right to Self-determination

2008 ◽  
Vol 15 (1) ◽  
pp. 1-26 ◽  
Author(s):  
Timo Koivurova
Keyword(s):  
International Law ◽  
Indigenous Peoples ◽  
Self Determination ◽  
General Assembly ◽  
Political Rights ◽  
Draft Convention ◽  
Un General Assembly ◽  
Civil And Political Rights ◽  
The Right

AbstractThis article will examine three international processes wherein the right to self-determination of indigenous peoples has been taken up: the process whereby the United Nations (UN) General Assembly adopted the UN Declaration on the Rights of Indigenous Peoples (UN Declaration), the intention to negotiate a Nordic Saami Convention (Draft Convention) and the practice of the Human Rights Committee (HRC) in monitoring the observance of the International Covenant on Civil and Political Rights (Covenant). All of these processes have enunciated indigenous peoples' right to self-determination, but any claim to such a right has met with resistance from the states, with the reasons for such resistance examined here. The aim is to study why it is so difficult to insert indigenous peoples into international law as category and, in particular, to have states accept their right to self-determination. In the conclusions, it is useful to ask whether the problems experienced in promoting the right to self-determination of indigenous peoples are mere setbacks or whether they contain elements that might inform the international movement of indigenous peoples more generally.

Part 5 Cross-Cutting Issues, 5.1 Derogation

2016 ◽  
Author(s):  
Bielefeldt Heiner, Prof ◽  
Ghanea Nazila, Dr ◽  
Wiener Michael, Dr
Keyword(s):  
Human Rights ◽  
International Law ◽  
The State ◽  
Political Rights ◽  
Public Emergency ◽  
Civil And Political Rights

This chapter explains the international law provision which allows the State to derogate from certain human rights. The possibility for States to derogate from certain rights ‘in time of public emergency which threatens the life of the nation’ may be considered as an unfavourable risk by human rights defenders. The Human Rights Committee, however, recognizes the derogation provision of the International Covenant on Civil and Political Rights (article 4) as being of paramount importance for the system of protection for human rights under the Covenant. It should be noted that not every disturbance or catastrophe qualifies as ‘a public emergency’ for the purposes of article 4(1) and such measures should be of an exceptional and temporary nature, only imposed to the extent strictly required by the exigencies of the situation, subject to a regime of international notification, and should not involve discrimination.

ACCIDENT AND DESIGN: RECOGNISING VICTIMS OF AGGRESSION IN INTERNATIONAL LAW

2021 ◽  
Vol 70 (1) ◽  
pp. 103-132
Author(s):  
Shane Darcy
Keyword(s):  
Human Rights ◽  
United Nations ◽  
International Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
Future Application ◽  
Political Rights ◽  
Recent Developments ◽  
Civil And Political Rights

AbstractInternational law has not traditionally recognised individuals as victims of the crime of aggression. Recent developments may precipitate a departure from this approach. The activation of the jurisdiction of the International Criminal Court over the crime of aggression opens the way for the future application of the Court's regime of victim participation and reparation in the context of prosecutions for this crime. The determination by the United Nations Human Rights Committee in General Comment No. 36 that any deprivation of life resulting from an act of aggression violates Article 6 of the International Covenant on Civil and Political Rights serves to recognise a previously overlooked class of victims. This article explores these recent developments, by discussing their background, meaning and implications for international law and the rights of victims.

Introduction The customary law of human rights is hiding in plain sight

2021 ◽  
pp. 1-8
Author(s):  
William A. Schabas
Keyword(s):  
Human Rights ◽  
International Law ◽  
Customary Law ◽  
International Human Rights Law ◽  
Political Rights ◽  
Human Rights Law ◽  
Customary International Law ◽  
Regional Systems ◽  
Second World

Many areas of international law developed first as custom and were only subsequently, generally in the course of the twentieth century, subject to codification. Human rights law was different. It was viewed as quintessentially a matter of domestic concern, a subject shrouded in State sovereignty. Only following the Second World War was international human rights law recognised as a source of binding obligations, mainly through the adoption of the Universal Declaration of Human Rights and other instruments of the United Nations as well as the regional systems. Later, jurists began contending that the norms in these instruments might also be customary in nature. They struggled with identifying the two classic elements in the determination of custom, opinio juris and State practice. Most analysis of the content of customary international law was rather perfunctory and also quite conservative, confining itself largely to civil and political rights.

Striking a Balance between Free Association and Regulating Membership of a ‘Community’: Exploring s 235 of the Constitution of South Africa

2021 ◽  
Vol 28 (1) ◽  
pp. 91-116
Author(s):  
Bertus De Villiers
Keyword(s):  
South Africa ◽  
International Law ◽  
Judicial Review ◽  
Constitutional Law ◽  
Free Association ◽  
Self Determination ◽  
Freedom Of Association ◽  
Essential Question ◽  
Universal Standard

Section 235 of the Constitution of South Africa contains a promise of potential self-determination of language and cultural communities. An essential question arising from this promise is how an individual’s freedom of association interacts with the ability of a community to determine its membership. This article reflects on this question with reference to standards developed in international law and practices in the constitutional law of selected case studies. Whereas international law sets a universal standard of free association, states have developed practices whereby the individual’s right to free association is recognised, but where there are also some measures allowed to ensure that an individual is indeed accepted by and part of the community. Any conflicts that arise are, generally speaking, subject to a form of judicial review.

scholarly journals Ordre du droit et droit de l'ordre

2005 ◽  
Vol 28 (3) ◽  
pp. 699-729
Author(s):  
Jacques Zylberberg
Keyword(s):  
Human Rights ◽  
United Nations ◽  
International Law ◽  
Rule Of Law ◽  
International Organizations ◽  
The State ◽  
Political Rights ◽  
Sovereign State ◽  
The Rule Of Law ◽  
Civil And Political Rights

This essay undertakes a review of national and international law to demonstrate that law is mainly an ideological and variable instrument of the State and of the United Nations, which is a by-product of the states. In this perspective, the author opposes the pragmatical ideology of resistance against the sovereign state to the juridical legitimation and the behaviour of the States who reluctantly have conceded some civil and political rights. Those rights are endangered by the growing bureaucratization of the state, the inflation of the juridical norms and rules, in addition to the permanent repressive characters of the State. The criticism of the contradiction and the variation of the rule of law when it relates to "human rights" is also extended to international law as well as to the international organizations.

scholarly journals Extraterritorial application of the right to life on the high sea . Commentary to the Views adopted by the Human Rights Committee of 27 January 2021, A.S., D.I., O.I. and G.D. against Italy, Communication No. 3042/2017

2021 ◽  
Author(s):  
Bartosz Pacholski
Keyword(s):  
Human Rights ◽  
International Law ◽  
Subject Matter ◽  
Political Rights ◽  
Right To Life ◽  
Rescue Operation ◽  
Protection Of Human Rights ◽  
The Subject ◽  
Civil And Political Rights ◽  
The Right

The subject matter of this commentary, which instigates the Views of the Human Rights Committee of 27 January 2021, is the protection of one of the fundamental human rights – the right to life. The Committee, as an authority appointed to oversee compliance with the International Covenant on Civil and Political Rights, had to decide on the issue of Italy’s responsibility for failing to provide assistance to a boat in distress, even if the area in which the vessel was located was not within the territory of this state and other acts of international law attribute the responsibility for executing the rescue operation to a third country. According to the Committee’s views, which applied extraterritorial approach to the protection of the right to life, whenever states have the opportunity to take action for the protection of human rights they should do everything possible in a given situation to help people in need.

Freedom of Speech in International Law

2021 ◽  
pp. 192-212
Author(s):  
Michael Hamilton
Keyword(s):  
Human Rights ◽  
International Law ◽  
Freedom Of Speech ◽  
Political Rights ◽  
Civil And Political Rights ◽  
The Right ◽  
Domestic Law

This chapter traces the broad contours of the right to freedom of speech as it has evolved in international law, principally under Article 19(2) of the 1996 International Covenant on Civil and Political Rights (ICCPR or ‘the Covenant’). Any speech protective principles deriving from the international jurisprudence are qualified by the following factors: the contextual contingency of the value of speech, the inherently limited reach of international scrutiny, the changing nature of the marketplace, and emerging forms of censorship. The chapter then outlines the key human rights treaty protections for freedom of speech, before further exploring the scope of the right. It examines the permissible grounds for speech restriction, highlighting two contested categories of speech—namely, incitement to hatred and glorification of terrorism—where international law not only concedes the low value of such speech, but specifically mandates its prohibition in domestic law. States that introduce broadly framed speech restrictions may claim to be acting in satisfaction of this prohibitory requirement. In consequence, the intensity of any ensuing international scrutiny will inevitably be substantially reduced.

scholarly journals The 2013 Elections in Zimbabwe: End of an Era for Human Rights Discourse?

2013 ◽  
Vol 48 (3) ◽  
pp. 99-110 ◽  
Author(s):  
Cornelias Ncube
Keyword(s):  
Human Rights ◽  
The State ◽  
Self Determination ◽  
Coalition Government ◽  
Political Rights ◽  
Strained State ◽  
Civil And Political Rights ◽  
Rights Discourse ◽  
The Right ◽  
Human Rights Discourse

This paper examines the implications of Zimbabwe's 2013 harmonised elections on the opposition's continued deployment of the rights-based discourse to make moral and political claims against and demands of the state. Since 2000, two polarising strands of the human rights discourse −1) the right to self-determination and 2) civil and political rights – were deployed by the state and the opposition, respectively, in order to challenge extant relations and structures of power. The acutely strained state–society relations in post-2000 Zimbabwe emanated from human rights violations by the state as it responded to challenges to its political power and legitimacy. However, the relative improvement in the human rights situation in the country since the 2009 coalition government came into office, and during and since the recently concluded peaceful 2013 elections – the flawed electoral process itself notwithstanding – suggests a need for alternative new ways to make moral and political demands of the state in the future.

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