scholarly journals Oversight of Kenya’s Counterterrorism Measures on Al-Shabaab

2019 ◽  
Vol 12 (1) ◽  
pp. 79-118
Author(s):  
Charles Alenga Khamala
Keyword(s):  
Human Rights ◽  
First Century ◽  
Constitutional Court ◽  
Due Diligence ◽  
Human Right ◽  
Criminal Trials ◽  
Liberal Democratic ◽  
Universal Human Rights ◽  
Criminal Intent ◽  
International Instruments

Abstract Citing comparative US, UK and European jurisprudence, this article proposes a pre-inchoate offence to punish terror suspects at the African Court of Justice and Human Rights. It traces the Kenya government’s twenty-first-century responses to distorted jihad fundamentalism culminating in the current escalating pogroms. Coercive executive counterterrorism responses make exceptions to universal human rights enshrined under liberal democratic constitutions and international instruments. Yet the legality principle constrains the use of pre-inchoate offences. Hence civil society’s resistance delayed the enactment of Kenya’s Prevention of Terrorism Act. Moreover, the Constitutional Court subsequently struck out as ‘vague and ambiguous’ the Security Law (Amendment) Act’s substantive provision which ‘presumed criminal intent for encouraging terror’. Procedurally, another dilemma arises. This concerns whether it is possible for an international terror suspect to have a fair domestic trial. Although ‘limited executive measures’ require some individuals to trade off their own liberties to safeguard the security of others, due diligence can prevent torture or targeted killings. Instead, following Kenyan ‘Operation Linda Nchi’s’ pre-emptive strikes since 2011, Al-Shabaab’s retaliation arguably spiralled into increased violations of the core human right to life. Enacting pre-inchoate offences instead deems Islamist terrorists, particularly secondary offenders, as rational actors. Using a ‘reverse harm thesis’ to justify the education of pre-inchoate offenders, I argue that regional criminal trials of terror suspects constitute better ‘effective oversight’ on human rights violations than executive, legislative or domestic judicial responses. Invoking ‘concurrent responsibility’ to prosecute Al-Shabaab suspects before the ACJHR can therefore facilitate AMISOM’s dignified ‘exit’ strategy from Somalia.

scholarly journals Should a Human Right Discourse be Applied to Labour Standards?

2015 ◽  
Vol 4 (1) ◽  
pp. 75
Author(s):  
Morteza Shirzad
Keyword(s):  
Human Rights ◽  
Human Right ◽  
Labour Rights ◽  
Comprehensive Theory ◽  
Universal Human Rights ◽  
Public Rights ◽  
Labour Standards ◽  
Rights Discourse ◽  
Human Rights Discourse

Whether a rights discourse should be applied to labour standards, entails addressing two issues. Firstly, what are the philosophical grounds for labour rights and whether they are human rights at all? Even if they cannot be regarded as human rights, should they be applied strategically? While, there is no single comprehensive theory identified to provide sufficient grounding for all labour rights, this paper argues, firstly, that labour rights certainly lack characteristics of universal human rights since they are time-bound and place-bound. Secondly, while recognising the relatively large strategic turn to human rights discourse by labour scholars and labour organisations, this paper argues that this is not a universally applicable strategy and in fact in some contexts application of human rights discourse is counterproductive. The paper, thus, concludes that not only deploying human rights approaches when it comes to countries authoritarian contexts are not effective, but also it is highly likely to be counterproductive, since human rights discourse needs public rights awareness public and authoritarian contexts lack this awareness.

scholarly journals Dismissal of KPK Employees from Legal Positivism and Alternative Solutions

2021 ◽  
pp. 175
Author(s):  
Dominikus Dalu Sogen ◽  
Dewa Ayu Putri Asvini ◽  
Detty Kristiana Widayat
Keyword(s):  
Human Rights ◽  
Legal Theory ◽  
Legal Positivism ◽  
Constitutional Court ◽  
Human Right ◽  
The Public ◽  
Positive Law ◽  
The People ◽  
National Human ◽  
The Law

Studying the philosophy of law means studying various schools of law. Amongst the variety of legal theories, there are adherents of legal positivism or the positive legal theory postulated by John Austin (a philosopher whose thoughts on law are outlined in a work entitled The Province of Jurisprudence Determined 1832). Are Austin's thoughts still relevant for the practice of law inthe modern era, considering that law is made for the public interest? Is it appropriate for the law to be made by authorities (superior) to bind subordinates (inferior), whereas the people are only in a position to obey the law? In a functioning democracy public participation is important in decision-making by the elected legislators. Presumably, law is not made arbitrarily or unilaterally, but it is supposed to take into account the interest of the public or the interest of the groups it is designed to address. A prominent example currently in the public spotlight isthe dismissal of 57 Corruption Eradication Commission (KPK) employees due to their stated ineligibility following their failure to pass the National Insight Test Assessment. For this matter, a judicial review (JR) has been requested from the Constitutional Court and the Supreme Court who in the meantime have published their decisions. In addition, there have been recommendations from the National Human Rights Commission (Komnas HAM) and the Indonesian Ombudsman regarding the occurrence of human rights violations and maladministration in the transfer of KPK employees to ASN. Where JR's decision by the two judicial institutions is different from what is recommended by Human Right Commission and the Indonesian Ombudsman. Here it can be seen that there are differences in the application of the law with the positive law that applies and is detrimental to the rights of KPK employees.

scholarly journals Proportionality of Interference with the Right to Peaceful Enjoyment of Property During the Seizure of Property in Criminal Proceedings in Ukraine

2020 ◽  
pp. 246-264
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
Case Law ◽  
Criminal Proceedings ◽  
Human Right ◽  
European Court ◽  
Protection Of Human Rights ◽  
European Standards ◽  
The Right ◽  
International Instruments

This article considers relevant science and law enforcement practice issues of state intervention’s legitimacy in the right to peaceful property enjoyment in criminal proceedings during property seizure. These issues are considered everywhere through international instruments’ prism, particularly the Convention for the Protection of Human Rights (ECHR) and Fundamental Freedoms, Article 1 of Protocol No. 1 to the Convention and the ECtHR case-law. Based on the ECtHR case law, the authors analyze the conditions under which the state may interfere in exercising a protected right, often called criteria for intervention. Based on the fact restrictions are permissible if they are prescribed by law, necessary in a democratic society and pursue a legitimate goal, the authors consider these conditions through the lens of national law enforcement practices of Ukrainian criminal proceedings. The authors emphasize the relevance of these criteria of the legality of individual rights restriction in criminal proceedings since when applying for property seizure, the Ukrainian legislator requires investigating judges to consider reasonableness and restriction proportionality of property rights, and apply the least onerous seizure method, not suspend or excessively restrict a person’s lawful business activities, or other consequences significantly affecting others’ interests. Due to the amendment of the Ukrainian criminal procedure legislation, the practice is slowly approaching the European Court of Human Rights practice’s European standards. However, proper systematic, logical and consistent court decisions limiting the human right to peaceful property possession remain critical. Based on the study, the authors offer a model of logical reasoning, following which the investigating judges can correctly formulate the motivational part of the decision to satisfy or deny the request for property seizure. Particular attention is paid to the reasonableness, suitability, necessity, and proportionality of the means of restricting the right to peaceful enjoyment of the property and describes each of them.

scholarly journals Some Useful Sources

2006 ◽  
Vol 5 (1) ◽  
pp. 161-165 ◽  
Author(s):  
Helen Jones
Keyword(s):  
Human Rights ◽  
Violence Against Women ◽  
Free Access ◽  
Due Diligence ◽  
Nation States ◽  
Universal Human Rights

There is fundamental recognition that the human rights of women are ‘an inalienable, integral and indivisible part of universal human rights’ (Vienna Declaration and Programme of Action, para. 18). Violence creates tremendous obstacles to the achievement of rights for women and nation states are obligated to exercise due diligence in the eradication of violence against women and to prevent violence against women wherever it occurs. The following list identifies key documents and resources available at International, European and UK levels. The list includes references to website gateways, documents, campaigns, organisations and publications. The websites provide free access to a wide body of literature and all sites were visited on 11 July 2005 to check that they were current. The list is not comprehensive but is indicative of key materials and services that are easily accessible.

scholarly journals KEWENANGAN PEMBUBARAN PARTAI POLITIK OLEH MAHKAMAH KONSTITUSI DITINJAU DARI PERSPEKTIF HAK ASASI MANUSIA (HAM)

2014 ◽  
Vol 3 (3) ◽  
Author(s):  
Putu Eva Ditayani
Keyword(s):  
Human Rights ◽  
Political Parties ◽  
Political Party ◽  
Descriptive Analysis ◽  
The State ◽  
Constitutional Court ◽  
Freedom Of Association ◽  
Legal Research ◽  
Human Right ◽  
Human Rights Act

This research examines the dissolution of political party by Constitutional Court, that becomes its authorities based on Article 24C UUDNRI 1945, from human right perspective. Indonesia as the state that implemented law of state of law acknowledge human rights as stated in the Constitution. Neverttheless, freedom of association as one of the principle of human rights as regulated in the Constitution, which used as the base of formation of a political party, can be ruled out and has limited implementation in which norms conflict arises. Limitation of freedom association is reflected in the sanction imposed by the Constitutional Court regarding dissolution of political party. The dissolution of political party by the Constitutional Court refers to certain regulation as Act No. 39 of 1999 that regulating Human Rights, Act No. 24 of 2003 that regulating The Constitutional Court, Act No. 2 of 2008 regulating Political Party, and The Constitutional Court Regulation governing the dissolution of a political party procedures by the Constutional Court. This research is a normative legal research that investigates the dissolution of a political party by the Constitutional Court that contrasts with formation of a political party as a representation of freedom of association, one of the human rights principle, without assessment on implementations or practices regarding those norms. According to descriptive analysis based on legal material regarding this issue, the limitation of freedom to associate can be performed based on Article 4 ICCPR 1966 because it can be considered as a right that its fulfillment can be limited by law. That dissolution by the Constitutional Court is not considered as violation of freedom to associate since the sanction only be imposed to violation of regulations by political parties. The purpose of limitation is only to protect the integrity of Republic of Indonesia and the discipline of the community, nation, and state members.

scholarly journals Human Rights for Life. The Experience of Ukraine

2018 ◽  
Vol 22 (36) ◽  
pp. 41-48
Author(s):  
Myroslava Hromovchuk
Keyword(s):  
Human Rights ◽  
Constitutional Court ◽  
Right To Life ◽  
Human Right

Abstract The article reveals the peculiarities of the normative and legal consolidation of the human right to life. The authors pay attention to the provisions of the decisions of the Constitutional Court of Ukraine that carry out the interpretation of the human right to life.

scholarly journals Are Universal Human Rights Universal?

Politeja ◽  
2021 ◽  
Vol 18 (2(71)) ◽  
pp. 67-77
Author(s):  
Ildus Yarulin ◽  
Evgeny Pozdnyakov
Keyword(s):  
Human Rights ◽  
Second World War ◽  
Fundamental Rights ◽  
World War ◽  
International Human Rights ◽  
Universal Human Rights ◽  
Human Rights Norms ◽  
The Individual ◽  
International Instruments ◽  
Second World

One of the issues constantly discussed in the context of human rights is their assessment as universal or relative. International human rights norms are universal, which corresponds to the nature of human rights. The process of universalization of human rights began after the second world war with the creation of the United Nations, whose Charter declared its determination to reaffirm faith in the fundamental rights of the individual, in the equality of men and women and in the equality of nations large and small. These intentions of the organization were confirmed by the adoption of universal documents: the International Bill of Human Rights, including the Universal Declaration of Human Rights of 1948, the International Covenants on Human Rights, opened for signature on December 16, 1966, and other acts. However, the problem lies in the fact that human rights recognized at the international level as universal and enshrined in international instruments, which must be respected by all and everywhere, lose the signs and qualities of universality under the influence of various socio-cultural, national traditions and customs, religious and other factors, and acquire the meaning or status of relative ones.

Impoverishment in the Anthropocene

2018 ◽  
pp. 454-476
Author(s):  
Upendra Baxi
Keyword(s):  
Human Rights ◽  
Global Warming ◽  
Global Poverty ◽  
Absolute Poverty ◽  
Human Right ◽  
Relative Poverty ◽  
Global Responsibility ◽  
The Earth ◽  
Universal Human Rights ◽  
Global Condition

This chapter explores the idea of impoverishment and the concept of poverty as a global condition. It makes a distinction between “poverty” and “impoverishment”—the latter being the conditions and policies that keep people mired in poverty. It also makes a distinction between absolute poverty—conditions that threaten survival—and relative poverty. Absolute poverty is often regarded as a human right, and this chapter details efforts by international entities such as agencies of the United Nations to include the abolition of global poverty within the idea of universal human rights. The chapter also discusses the nature of impoverishment in the Anthropocene era, in which global warming will threaten everyone within vast regions of the Earth. The notions of global responsibility and universal human rights will have to be expanded to include these problematic new circumstances.

scholarly journals Housing as a Human Right within an Era of International Exceptionalism

2021 ◽  
Vol 7 (2) ◽  
pp. 241
Author(s):  
Erin Elizabeth Davis
Keyword(s):  
Human Rights ◽  
Vulnerable Groups ◽  
Right To Life ◽  
Human Right ◽  
American System ◽  
Cultural Rights ◽  
Normative Development ◽  
European Court ◽  
The Right ◽  
International Instruments

The right to adequate housing is an internationally recognized human right, yet it has been incontrovertibly desecrated by a lack of recognition, disproportionately affecting vulnerable groups. Economic, social, and cultural rights have encountered many challenges in an ever-increasing era of international exceptionalism and challenges arise in the protection of these rights. The right to housing is achieved in two ways: as a normative right and as a derivative right encompassed within economic, social, and cultural rights. This article introduces: (1) the normative development of economic, social, and cultural rights as recognized human rights, and their regulatory implementation through international instruments; (2) the concept of individuals as right-holders and duty-bearers of economic, social, and cultural rights; (3) understanding how the restriction of the right to housing leads to the violation of other human rights, including (a) the right to life, (b) the right to freedom from discrimination, and (c) the right to humane treatment – and the types of vulnerable groups that face the most discrimination, such as indigenous persons and women; and (4) protection against forced evictions, through an examination of the jurisprudence of the Inter-American System, European Court of Human Rights, and African Court on Human and Peoples’ Rights.

scholarly journals The vision and interiorization of leisure and free time of post-degree students

2019 ◽  
pp. 10-19
Author(s):  
Sara Margarita Yañez-Flores ◽  
Jaquelina Lizet Hernández-Cueto ◽  
María del Consuelo Salinas-Aguirre ◽  
Alma Verena Solís-Solís
Keyword(s):  
Human Rights ◽  
Everyday Life ◽  
Leisure Activities ◽  
Female Students ◽  
Free Time ◽  
Human Beings ◽  
Human Right ◽  
Work Related ◽  
Universal Human Rights ◽  
The Way

Leisure and free time are a part of human beings’ life, and perhaps neither how nor why is thought of. In leisure, activities are individual and obligation free; free time activities, although can be chosen whether to do them or not, are linked to social pressures and included in the legislation and as universal human rights: Recreation, amusement and rest. The objective of the article is to analyze the way in which the post-degree students visualize and incorporate the leisure and free time in their everyday life. The used method is quantitative, explorational-descriptive, and transversal. The article contributes demonstrating the subjective wealth that impregnates the leisure forms and free time activities into the way each of the individuals do things, think, say, and spend time in their educational, social, and work related relationships and interrelationships. The questionnaire was answered by 70 post-degree students ―53 women and 17 men― most of them working. Some female students spend 15% of their week in free time activities and 27.5% to leisure; in both activities men said to spend 27% of their week. Only 16 women and six men consider free time as a fundamental human right.

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