Taking Universality Seriously: A Functional Approach to Extraterritoriality in International Human Rights Law

2013 ◽  
Vol 7 (1) ◽  
pp. 47-71 ◽  
Author(s):  
Yuval Shany
Keyword(s):  
Human Rights ◽  
Functional Approach ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
European Court ◽  
Normative Significance ◽  
International Human ◽  
The One ◽  
Relations Of Power

Abstract International human rights law (IHRL) has struggled to define a standard for determining the extraterritorial applicability of its norms that would reconcile the ethos of universal entitlement, on the one hand, with the centrality of borders in delineating state powers and responsibilities under international law, on the other hand. The case law of the UN Human Rights Committee and the European Court of Human Rights (ECtHR) favors barring states from engaging in conduct outside their borders that would be impermissible if undertaken inside their borders. Still, attempts to demarcate the precise scope of extraterritorial application through allusion to degrees of control over individuals or areas, or by the nature of the obligation itself – have led to unsatisfactory, if not arbitrary results. This article opines a move to functionalism as the basis for extraterritorial applicability – requiring states to protect IHRL in situations they can do so. Under this approach, which takes universality seriously, borders lose much their normative significance. I suggest limiting the functional approach to extraterritorial applicability in accordance with two key notions: (1) the intensity of power relations – factual relations of power entailing direct, significant and foreseeable potential impact – should result in the application of IHRL obligations; or, alternatively, (2) special legal relations – relations of power that put the state in a unique legal position to afford IHRL protection would also justify the imposition of extraterritorial obligations.

International Human Rights Law and Blockade

2018 ◽  
Author(s):  
Phillip Drew
Keyword(s):  
Human Rights ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
European Court ◽  
Power And Control ◽  
International Human ◽  
Extraterritorial Jurisdiction ◽  
And Control

The years since the beginning of the twenty-first century have seen a significant incursion of international human rights law into the domain that had previously been the within the exclusive purview of international humanitarian law. The expansion of extraterritorial jurisdiction, particularly by the European Court of Human Rights, means that for many states, the exercise of physical power and control over an individual outside their territory may engage the jurisdiction of human rights obligations. Understanding the expansive tendencies of certain human rights tribunals, and the apparent disdain they have for any ambiguity respecting human rights, it is offered that the uncertain nature of the law surrounding humanitarian relief during blockades could leave blockading forces vulnerable to legal challenge under human rights legislation, particularly in cases in which starvation occurs as a result of a blockade.

scholarly journals The European Court of Human Rights’ Engagement with International Human Rights Instruments: Looking at the Cases of Domestic Violence

2021 ◽  
pp. 79-96
Author(s):  
Ebru Demir
Keyword(s):  
Domestic Violence ◽  
Human Rights ◽  
Specific Area ◽  
Case Law ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
European Court ◽  
International Human ◽  
Scope Of Protection

In its recent jurisprudence on domestic violence, the European Court of Human Rights started to examine the domestic violence cases in the light of relevant international human rights law developed in this specific area. This article examines the engagement of the European Court of Human Rights with other international and regional human rights instruments in domestic violence cases. Upon examination, the article concludes that by integrating its case law into international human rights law the European Court of Human Rights broadens the scope of protection for domestic violence victims and maintains the unity of international law.

Good Governance and Property Rights of the State: The Dubovets Case before the European Court of Human Rights and the Russian Constitutional Court

2019 ◽  
Vol 44 (3) ◽  
pp. 296-304
Author(s):  
Grigory Vaypan
Keyword(s):  
Human Rights ◽  
Property Rights ◽  
Good Governance ◽  
Constitutional Court ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
European Court ◽  
International Human ◽  
The Government

This contribution discusses the recent Dubovets case before both the European Court of Human Rights and the Russian Constitutional Court, and its implications for the changing design of Russian property law as increasingly shaped by international human rights law and good governance principles. Communicated in December 2016, the application in Dubovets v. Russia continues the line of the European Court’s cases against Russia on the protection of good faith private owners of real estate against property claims by the government. Prompted by this case law, the Russian Constitutional Court in its Judgment of 22 June 2017 No 16-P struck down Article 302 of the Russian Civil Code as unconstitutional insofar as it entitled the government to reclaim possession of state property that had been previously alienated due to the government’s own negligence. This judgment manifests the increasing interdependence between private and public law – of classical property law, on the one hand, and international human rights law and good governance principles, on the other hand. It also contributes to ongoing evolution in the understanding of the state’s property rights in Russia: from the superior status of public property in Soviet times – to formal equality between public and private property rights in the landmark legal instruments of the 1990s – and now to the growing need for special protection of individual property rights vis-à-vis the state, in light of the latter’s double role as both the largest owner and the (quite unrestrained) regulator.

scholarly journals An Analysis of the Security Council Procedures in Managing Severe Violations of the International Human Rights

2016 ◽  
Vol 9 (8) ◽  
pp. 33
Author(s):  
Abdolsamad Doulah ◽  
Mirshahbiz Shafee
Keyword(s):  
Human Rights ◽  
Security Council ◽  
Human Rights Violations ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Peace ◽  
International Crises ◽  
International Human Rights ◽  
International Human ◽  
The One

The UN Security Council is primarily in charge of maintaining international peace and security. There has been raised various debates on how the Security Council manage international crises in the world, particularly severe violations of international human rights law. On the one hand, the traditional view to international peace has altered and the Security Council is also in charge of observing the standards of the international human rights. On the other hand, the international community has faced inconsistencies in the use of the veto by its permanent members on the international human rights violations. However, many analysts believe that the Security Council could take timely action to prevent violations of international human rights law. At that time, they fell into the trap of politics and proved insufficient. This article is in response to this important issue, indicating that the management of the Security Council has been fair in the case of international human rights violations. This study also aims to investigate whether the Security Council has been successful in adopting a procedure independent from the interests of its permanent members.

scholarly journals The European Court of Human Rights and Its Contribution to Judicial Fragmentation in International Human Rights Law

2019 ◽  
Vol 113 ◽  
pp. 92-95
Author(s):  
Elena Abrusci
Keyword(s):  
Human Rights ◽  
International Law ◽  
Regional Level ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
European Court ◽  
Commission Report ◽  
International Human ◽  
International Law Commission

Following the International Law Commission Report on Fragmentation in International Law (IL), scholars have started to question whether such fragmentation could also have affected its subbranches, and, especially, international human rights law (IHRL). Due to the proliferation of both IHRL norms and institutions, especially at the regional level, this appeared to be a real possibility.

scholarly journals THE CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES: ITS CONTRIBUTION TO THE DEVELOPMENT OF INTERNATIONAL HUMAN RIGHTS LAW

REVISTA ESMAT ◽  
2019 ◽  
Vol 11 (17) ◽  
pp. 209
Author(s):  
Mona Paré
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Persons With Disabilities ◽  
United Nations Convention ◽  
International Human ◽  
The One ◽  
The Impact

This article examines the impact that the United Nations Convention on the Rights of Persons with Disabilities (CRPD) has had on international human rights law. While it seems that the convention may have a narrow focus, as it focuses on a specific group of people, this paper argues that it has had an impact on international human rights law more generally. This impact started with the negotiation of the convention between 2002 and 2006, and is continuing with its implementation since its entry into force in 2008. The impact is of both procedural and substantive nature. On the one hand, the procedure that led to the development and adoption of the CRPD was innovative, as are the mechanisms that have been put into place to monitor its implementation. On the other hand, the convention introduces and develops concepts in a novel way in international law, such as new ways of considering the concept of equality, and to understand development, for example. The article concludes that the international community should capitalize on the new approaches, and that their application and interpretation should be closely monitored.

Sustainable Development and Human Rights: An Integrated Conception

1996 ◽  
Vol 45 (4) ◽  
pp. 796-818 ◽  
Author(s):  
Dominic McGoldrick
Keyword(s):  
Sustainable Development ◽  
Human Rights ◽  
Environmental Law ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Human Right ◽  
International Human Rights ◽  
International Environmental Law ◽  
European Court ◽  
International Human

This article seeks to present an integrated conception of sustainable development, with particular emphasis on the contribution of international human rights law and theory. Part II considers a structural conception of sustainable development. Part III considers parallels between sustainable development and self-determination. Part IV provides some general reflections on international environmental law and international human rights law in terms of analogous concepts, principles and systems. What similarities are there and what differences? Part V considers the progress made towards recognition of a “human right to the environment”. Part VI considers how international environmental claims could be brought within the existing international human rights complaint systems. Part VII analyses the judgment of the European Court of Human Rights in theLopez Ostracase (1994), the leading case on environmental claims to have reached that Court.

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