scholarly journals Disaster, Displacement and International Law: Legal Protections in the Context of a Changing Climate

2020 ◽  
Vol 8 (4) ◽  
pp. 270-280 ◽  
Author(s):  
Miriam Cullen
Keyword(s):  
International Law ◽  
Extreme Weather Events ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Effective Implementation ◽  
Refugee Law ◽  
Legal Obligations ◽  
Weather Events ◽  
Recent Developments ◽  
National Governments

As the number of people displaced by disaster reaches record highs, this article describes how international law is relevant to disaster displacement, how refugee law is probably not the answer, and synthesises recent developments into contemporary application. New interpretations of international human rights law have advanced legal protections such that planning and preparedness to address future disasters now form an express component of states’ international legal obligations. At the same time, climate change is increasing the frequency and intensity of extreme weather events, exacerbating factors that cause disaster and displacement and rendering the effective implementation of international law more difficult. The further ‘othering’ of migrants during the Covid-19 pandemic could stymie the realisation of protections as national governments close borders, anti-immigration sentiment is stoked, and economies decline.

9 The Residual Receptacle

2021 ◽  
Author(s):  
d'Aspremont Jean
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal Law ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Customary International Law ◽  
Legal Obligations ◽  
The Common ◽  
General Principles Of Law ◽  
Common Understanding

This chapter explores customary international law that is constantly approached as the residual receptacle for international legal obligations that cannot be grounded in treaty law. It highlights the discursive performance that presupposes a sort of fetishization of the treaty as the first go-to source of international law as well as the idea that customary international law is second-best. It also cites the discursive performance that led some observers to claim that customary international law has become the generic category for practically all binding non-treaty standards. The chapter draws on international human rights law and international criminal law and highlights the discursive performance that is witnessed by customary international law. It formulates some observations on the consequences for general principles of law of the common understanding of customary international law as a residual receptacle for non-treaty international legal obligations.

Fundamental Standards of Humanity: What Future?

2002 ◽  
Vol 20 (2) ◽  
pp. 185-199 ◽  
Author(s):  
Jean-Daniel Vigny ◽  
Cecilia Thompson
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Humanitarian Law ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
International Human Rights ◽  
Effective Implementation ◽  
Refugee Law ◽  
International Human ◽  
International Instruments

This article focusses on the issue of fundamental standards of humanity, a set of principles to reflect both international human rights and humanitarian law, as a means to address the insufficient protection of persons in situations of internal violence. Such fundamental standards of humanity, applicable at all times, in all circumstances and to all parties, are necessary to address four areas: 1) States are not party to international instruments; 2) human rights obligations are derogated from; 3) international humanitarian law is not applicable or is so but is not applied; and 4) non-State actors may not be bound by obligations under international law. The article provides an overview of the steps taken by the international community to address the issue, discusses the sources of international human rights law, humanitarian law and refugee law from which fundamental standards of humanity could be drawn, and suggests further steps to be taken. The authors are convinced that fundamental standards of humanity would serve as an educational tool to enhance effective implementation of relevant international law.

Restricting Discretion: Judicial Review of Diplomatic Protection

2006 ◽  
Vol 75 (2) ◽  
pp. 279-307 ◽  
Author(s):  
Annemarieke Vermeer-Künzli
Keyword(s):  
Human Rights ◽  
International Law ◽  
Judicial Review ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
National Courts ◽  
Diplomatic Protection ◽  
International Law Commission ◽  
National Governments

AbstractIn the last 30 years, individuals have increasingly filed complaints against their national governments for failure to exercise diplomatic protection on their behalf, in particular in cases of serious violations of international human rights law. Despite the fact that diplomatic protection has traditionally been regarded as a discretionary right of states, the national courts have invariably decided to enter into the merits of the case and to review the exercise of diplomatic protection by the executive. Initially, a draft article on this subject was not accepted by the International Law Commission in the Draft Articles on first reading, but an encouraging provision was included in the Draft Articles adopted on second reading. The development discussed in this article shows support for an obligation to exercise diplomatic protection in case of serious violations of human rights law.

Human Rights, Israel, and the Political Realities of Occupation

2008 ◽  
Vol 41 (1-2) ◽  
pp. 87-174 ◽  
Author(s):  
Grant T. Harris
Keyword(s):  
Human Rights ◽  
International Law ◽  
Security Council ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Legal Obligations ◽  
International Human ◽  
Political Realities ◽  
Israeli Occupation

Various political realities influence the Israeli occupation of the West Bank and the Gaza Strip and, more generally, the vitality of the international law of occupation. The law of occupation—though ill-suited to modern international relations and ill-equipped for prolonged occupation—has been almost universally invoked as applicable to the Occupied Palestinian Territory (OPT). At the same time, international human rights law is increasingly viewed as applicable to occupation. This creates a dilemma for Israel because international humanitarian law and international human rights law contain conflicting prescriptions and policy goals with respect to the administration of occupied territory. In many instances, occupants seek United Nations Security Council action in order to reconcile this tension and to secure legal and political cover for their actions. By acting under Chapter VII of the United Nations Charter; the Security Council can create a select legal patchwork applicable to a particular occupation. This use of Chapter VII resolutions by the Security Council to create international law by fiat is an important trend in modern occupation. Yet geopolitics determines access to—and the content of—such resolutions, and the sensitive political context of the OPT currently makes this avenue unavailable to Israel. For the same reason, opponents of the Israeli occupation are unable to secure Security Council action to clarify and enforce Israeli legal obligations in the OPT. This Article considers these issues from the perspectives of both Israel and Palestinians in order to examine why the relative gain and loss in each case is not immediately clear. This Article also discusses how the legality of Israeli conduct in the OPT may be gauged in light of the conflicting international legal obligations imposed by human rights law and the law of occupation. A broader exploration of the impact of these phenomena reveals that these political realities serve to increase the influence of the Security Council while further undercutting the utility and relevance of the international law of occupation.

International Law and the Protection of People at Sea

2018 ◽  
Author(s):  
Irini Papanicolopulu
Keyword(s):  
Human Rights ◽  
International Law ◽  
Analytical Framework ◽  
Law Of The Sea ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Labour Law ◽  
International Human Rights ◽  
Refugee Law ◽  
Novel Approach

This is a book about how international law can be used to ensure a better protection of people at sea. The fundamental premise of the book is that international law provides numerous structural, procedural, and substantive rules that can be used towards this aim. These particular rules derive primarily from international human rights law and the law of the sea, as well as from other fields of international law, including maritime law, labour law, and refugee law. The book discusses in depth how these rules regulate the scope of State duties towards people at sea, as well as how they affect the content of these duties, adapting generic human rights requirements to the special nature of the marine environment. All of these rules can be conceptualized as a sui generis special regime of international law, the overarching principle of which is the duty of States to protect people at sea and to adopt all necessary acts with a view towards ensuring enjoyment of their rights. This novel approach advocates a systemic reading of international law and advances the proposal that a new regime is emerging in this area. Using insights from theories of conflict of norms and regime interaction, it presents an analytical framework within which to examine the relationships between different rules of international law, expounding the conceptual potential of thinking in terms of regimes and in terms of the system and the ability of international law to produce countless functional legal regimes.

Commentary on Part I of the Montreux Document on Pertinent International Legal Obligations and Good Practices for States Related to Operations of Private Military and Security Companies During Armed Conflict

2014 ◽  
Vol 96 (893) ◽  
pp. 305-358 ◽  
Author(s):  
Marie-Louise Tougas
Keyword(s):  
International Law ◽  
General Rule ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
Good Practices ◽  
Legal Obligations ◽  
Security Companies

AbstractThe Montreux Document on Private Military and Security Companies (Montreux Document) was adopted in 2008 by seventeen States to reaffirm and, as far as was necessary, clarify the existing obligations of States and other actors under international law, in particular under international humanitarian law (IHL) and international human rights law (IHRL). It also aimed at identifying good practices and regulatory options to assist States in promoting respect for IHL and IHRL by private military and security companies (PMSCs). Today, fifty-one States and three international organizations have endorsed the Montreux Document. It contains twenty-seven “Statements” – sections recalling the main international legal obligations of States in regard to the operations of PMSCs during armed conflicts. Each statement is the reaffirmation of a general rule of IHL, IHRL or State responsibility formulated in a way that clarifies its applicability to PMSC operations. This article aims to detail the basis of each legal obligation mentioned in the first part of the Montreux Document (Part I). The article follows the structure of Part I, in order to better facilitate its comprehension. The second part of the Montreux Document, relating to good practices, is not covered in this article.

DOMESTIC VIOLENCE ASYLUM CLAIMS AND RECENT DEVELOPMENTS IN INTERNATIONAL HUMAN RIGHTS LAW: A PROGRESS NARRATIVE?

2011 ◽  
Vol 60 (2) ◽  
pp. 459-484 ◽  
Author(s):  
Siobhán Mullally
Keyword(s):  
Domestic Violence ◽  
Human Rights ◽  
International Human Rights Law ◽  
Due Diligence ◽  
Human Rights Law ◽  
International Human Rights ◽  
Refugee Law ◽  
Recent Developments ◽  
Domestic Jurisdiction ◽  
International Human

Recent years have witnessed significant developments in international human rights law relating to domestic violence. No longer viewed as a matter ‘essentially within the domestic jurisdiction of the State’, domestic violence now frequently commands the attention of international human rights bodies. The obligations imposed on States include positive obligations of due diligence to prevent, investigate and to punish domestic violence, whenever and wherever it occurs.1 Judicial dialogue across the borders of human rights and refugee law has also expanded access to asylum for women fleeing domestic violence, bringing with it a gradual recognition of the positive obligations that international law now imposes on States. However, as recent cases such as Jessica Gonzalez v the United States2 and Opuz v Turkey3 reveal, significant gaps remain between the rhetoric of human rights law and the reality of everyday enforcement and implementation on the ground. These gaps are most keenly felt by refugee women. While State practice suggests greater gender inclusivity and sensitivity in the practice of refugee law, women fleeing domestic violence continue to face obstacles in making their claims heard.

Part II Predominant Security Challenges and International Law, National and Transnational Security, Ch.9 Internal Strife and Insurgency

2021 ◽  
Author(s):  
Henderson Christian
Keyword(s):  
International Law ◽  
Armed Conflicts ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Security Challenges ◽  
Law Of Armed Conflict ◽  
Recent Developments ◽  
The Government ◽  
Legal Frameworks

This chapter discusses internal strife and insurgency. The terms ‘internal strife’ and ‘insurgency’ encompass a range of situations from peaceful and violent protests and demonstrations to rebellions against the government to full-blown armed conflicts. Such situations may either occur entirely between the governmental forces of a State and a non-State armed group (or between two such groups) or, as is more often the case, may be fuelled by third States or even involve them directly. The chapter then provides a broad yet concise overview of the international legal frameworks that regulate internal strife and insurgency, with particular focus on international human rights law (IHRL) and the applicability of the law of armed conflict, and the ways that these frameworks interact. What is more, from a global security perspective, it is the possibility of outside intervention and the attendant frameworks and rules of international law that are arguably most pertinent and controversial. There have been several recent developments potentially impacting the international law governing internal strife and insurgency and the chapter explores these and some of the recent situations that illustrate them.

Armed Groups and Customary International Human Rights Law

2017 ◽  
Author(s):  
Katharine Fortin
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Armed Groups ◽  
International Human Rights ◽  
Customary International Law ◽  
Legal Obligations ◽  
International Human

Chapter 11 analyses arguments that armed groups are bound by human rights law by virtue of customary international law. In doing so, the chapter draws together theories that have been explored in Chapters 7 and 9 about the relevance of territory to the acquisition of legal obligations. The chapter starts by examining the debates about how customary international human rights law binding upon armed groups should be constituted, finding that it will be formed through State practice and opinio juris. It ends by examining different articulations of the theory that armed groups are bound by customary international law by accountability mechanisms, evaluating their credence and making suggestions for their improvement.

scholarly journals The Unintended Consequences of Expanding Migrant Rights Protections

AJIL Unbound ◽  
2017 ◽  
Vol 111 ◽  
pp. 487-491
Author(s):  
Ralph Wilde
Keyword(s):  
Human Rights ◽  
International Law ◽  
Legal Protection ◽  
Unintended Consequences ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Refugee Law ◽  
Forced Migrants ◽  
Scope Of Protection

One story that can be told about the development of legal protections for certain forced migrants in international law is, in terms of the scope of protection, a progressive one. From expanded definitions of who is entitled to refugee-law protection, to the development of complementary protection in human rights law, the ambit of that which the law purports to cover has moved wider. This might be seen as part of the broader trend in the expanding coverage of international human rights law generally. Yet, a counternarrative can also be told: a diminished commitment on the part of many states, particularly economically advantaged ones, to inward migration, including of forced migrants, as evidenced in the expanded scope of non-entrée, “closed borders” measures, from visa restrictions to carrier sanctions, push-back operations, and an unwillingness to engage in numerically significant refugee resettlements to their countries. This backlash trend can also be identified in human rights policy generally. Just as the scope of human rights legal protection in general, and the legal protection accorded to certain migrants in particular, has expanded, so too states have become less willing to provide such protection.

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