scholarly journals The Role of Customary International Law in Regulating the Activities of Armed Groups in the Field of Human Rights

2021 ◽  
Vol 16 (5) ◽  
pp. 195-204
Author(s):  
R. I. Sharipov
Keyword(s):  
Human Rights ◽  
International Law ◽  
Armed Conflicts ◽  
International Human Rights Law ◽  
Armed Groups ◽  
Customary International Law ◽  
Protection Of Human Rights ◽  
Jus Cogens ◽  
Relationship Of ◽  
Peremptory Norms

Over the past decades, there has been a significant increase in the number of armed groups involved in armed conflicts around the world, as well as in their impact on the rights and freedoms of the population under their control. Facing various situations of systematic violations of human rights by non-state actors, experts in the field of international human rights law began to consider the theoretical justification for the mandatory nature of the provisions on the observance and protection of human rights for armed groups. In this regard, a number of scholars have turned to the theory of customary international law, the acceptability of which is being investigated by the author of this paper. The author examines the provisions underlying this theory and the persuasiveness of the argumentation used by its supporters. Based on an analysis of the nature of customary international law, its structural elements, their interpretation by the UN International Court of Justice in its decisions and the relationship of customary international law with peremptory norms of jus cogens, the author concludes that the theory under consideration is currently unable to explain the existence of obligations of armed groups in the field of human rights.

Facilitating humanitarian assistance in international humanitarian and human rights law

2009 ◽  
Vol 91 (874) ◽  
pp. 371-397 ◽  
Author(s):  
Rebecca Barber
Keyword(s):  
Human Rights ◽  
International Law ◽  
Humanitarian Aid ◽  
Humanitarian Assistance ◽  
Armed Conflicts ◽  
International Human Rights Law ◽  
Aid Workers ◽  
Human Rights Law ◽  
Civilian Population ◽  
Customary International Law

AbstractIn 2008, 260 humanitarian aid workers were killed or injured in violent attacks. Such attacks and other restrictions substantially limit the ability of humanitarian aid agencies to provide assistance to those in need, meaning that millions of people around the world are denied the basic food, water, shelter and sanitation necessary for survival. Using the humanitarian crises in Darfur and Somalia as examples, this paper considers the legal obligation of state and non-state actors to consent to and facilitate humanitarian assistance. It is shown that the Geneva Conventions and their Additional Protocols, as well as customary international law, require that states consent to and facilitate humanitarian assistance which is impartial in character and conducted without adverse distinction, where failure to do so may lead to starvation or otherwise threaten the survival of a civilian population. This paper considers whether this obligation has been further expanded by the development of customary international law in recent years, as well as by international human rights law, to the point that states now have an obligation to accept and to facilitate humanitarian assistance in both international and non-international armed conflicts, even where the denial of such assistance does not necessarily threaten the survival of a civilian population.

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.

Making Human Rights a Reality

2013 ◽  
Author(s):  
Emilie M. Hafner-Burton
Keyword(s):  
Human Rights ◽  
International Law ◽  
World Population ◽  
International Human Rights Law ◽  
Legal Norms ◽  
Human Rights Protection ◽  
National Human ◽  
The World ◽  
Protection Of Human Rights ◽  
National Human Rights Institutions

In the last six decades, one of the most striking developments in international law is the emergence of a massive body of legal norms and procedures aimed at protecting human rights. In many countries, though, there is little relationship between international law and the actual protection of human rights on the ground. This book takes a fresh look at why it's been so hard for international law to have much impact in parts of the world where human rights are most at risk. The book argues that more progress is possible if human rights promoters work strategically with the group of states that have dedicated resources to human rights protection. These human rights “stewards” can focus their resources on places where the tangible benefits to human rights are greatest. Success will require setting priorities as well as engaging local stakeholders such as nongovernmental organizations and national human rights institutions. To date, promoters of international human rights law have relied too heavily on setting universal goals and procedures and not enough on assessing what actually works and setting priorities. This book illustrates how, with a different strategy, human rights stewards can make international law more effective and also safeguard human rights for more of the world population.

The Idea of International Human Rights Law

2019 ◽  
Author(s):  
Steven Wheatley
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Moral Concept ◽  
Customary International Law ◽  
Human Rights Treaties ◽  
International Human ◽  
Fragmentation Of International Law

International Human Rights Law has emerged as an academic subject in its own right, separate from, but still related to, International Law. This book explains the distinctive nature of the new discipline by examining the influence of the moral concept of human rights on general international law. Rather than make use of moral philosophy or political theory, the work explains the term ‘human rights’ by examining its usage in international law practice, on the understanding that words are given meaning through their use. Relying on complexity theory to make sense of the legal practice in the United Nations, the core human rights treaties, and customary international law, The Idea of International Human Rights Law shows how a moral concept of human rights emerged, and then influenced the international law doctrine and practice on human rights, a fact that explains the fragmentation of international law and the special nature of International Human Rights Law.

Jurisdictional Immunities of the State for Serious Violations of International Human Rights Law or the Law of Armed Conflict

2013 ◽  
Vol 50 ◽  
pp. 243-287 ◽  
Author(s):  
Paul David Mora
Keyword(s):  
Human Rights ◽  
International Law ◽  
Armed Conflict ◽  
The State ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Customary International Law ◽  
Law Of Armed Conflict ◽  
International Human

SummaryIn its recent decision in Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening), the International Court of Justice (ICJ) held that Italy had failed to respect immunities enjoyed by Germany under international law when the Italian courts allowed civil actions to be brought against Germany for alleged violations of international human rights law (IHRL) and the law of armed conflict (LOAC) committed during the Second World War. This article evaluates the three arguments raised by Italy to justify its denial of immunity: first, that peremptory norms of international law prevail over international rules on jurisdictional immunities; second, that customary international law recognizes an exception to immunity for serious violations of IHRL or the LOAC; and third, that customary international law recognizes an exception to immunity for torts committed by foreign armed forces on the territory of the forum state in the course of an armed conflict. The author concludes that the ICJ was correct to find that none of these arguments deprived Germany of its right under international law to immunity from the civil jurisdiction of the Italian courts.

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.

Title to Territory and JurisdictionThree and a Half Models

2020 ◽  
pp. 159-181
Author(s):  
Lea Raible
Keyword(s):  
Human Rights ◽  
International Law ◽  
Political Power ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
International Human ◽  
Relationship Of ◽  
The Relationship

The very term ‘extraterritoriality’ implies that territory is significant. So far, however, my argument focuses on jurisdiction rather than territory. This chapter adds clarifications in this area. It examines the relationship of jurisdiction in international human rights law, whether understood as political power or not, and title to territory in international law. To this end, I start by looking at what international law has to say about jurisdiction as understood in international human rights law, and territory, respectively. The conclusion of the survey is that the two concepts serve different normative purposes, are underpinned by different values, and that they are thus not the same. Accordingly, an account of their relationship should be approached with conceptual care.

4. Human Rights in International Law

2016 ◽  
Author(s):  
Rhona K. M. Smith
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Customary International Law ◽  
Legal Context ◽  
National Human ◽  
International Human ◽  
United Nations System

This chapter examines the international legal context of human rights. It first considers the historical evolution of international human rights law, with particular emphasis on the reincarnation of philosophical ideals as international laws (treaties), before discussing the principal sources of international human rights law such as customary international law and ‘soft’ law. It then describes the various forms of expressing human rights, along with the core international human rights instruments. It also explores the mechanisms for monitoring and enforcing human rights, including the United Nations system, regional human rights systems, and national human rights systems. Finally, it explains the process followed for a state wishing to be bound to the provisions of a treaty and the benefits of listing human rights in treaties.

II. INTERNATIONAL COURT OF JUSTICE: QUESTIONS RELATING TO THE OBLIGATION TO EXTRADITE OR PROSECUTE (BELGIUM v SENEGAL) JUDGMENT OF 20 JULY 2012

2013 ◽  
Vol 62 (3) ◽  
pp. 753-769 ◽  
Author(s):  
Mads Andenas ◽  
Thomas Weatherall
Keyword(s):  
Human Rights ◽  
International Law ◽  
Universal Jurisdiction ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
Jus Cogens ◽  
Heads Of State ◽  
Peremptory Norms

This case1 marks the first pronouncement by the International Court of Justice (ICJ) on the obligation to extradite or prosecute (aut dedere aut judicare) in international law. It is the second contentious case in which the ICJ has held the defendant country in breach of its obligations under a human rights convention. The ICJ both added to the corpus of norms it has formally recognized as peremptory norms (jus cogens) and also reinforced the principle that former heads of state are subject to universal jurisdiction for grave violations of international law.

Part V Jus Cogens beyond the Vienna Convention, 23 The Metamorphosis of Jus Cogens: From an Institution of Treaty Law to the Bedrock of the International Legal Order?

2011 ◽  
Author(s):  
Zemanek Karl
Keyword(s):  
International Law ◽  
Recent Trend ◽  
Vienna Convention ◽  
Customary International Law ◽  
National Courts ◽  
International Legal Order ◽  
The Will ◽  
Ordre Public ◽  
Jus Cogens ◽  
Peremptory Norms

When the Vienna Convention on the Law of Treaties confirmed the existence of peremptory norms of international law (jus cogens) they were conceived, like Roman jus publicum, as absolute law that could not be altered by the will of individual States. Scholars then transformed the concept into the manifestation of public policy (ordre public). They also argued for widening the scope of its application to unilateral legal acts and customary international law. A recent trend in academic theory assigns jus cogens an essential role in the constitutionalization of international law, postulating it either as hierarchically higher order or as embodying the constitutional principles. In view of the rashness of scholars in proclaiming the peremptory character of norms and also of the inexpertness of the European and national courts in applying supposedly peremptory international norms in their decisions, it seems better to keep jus cogens at its original task.

Sign in / Sign up

Export Citation Format

Share Document