scholarly journals Disability, Deprivation of Liberty and Human Rights Norms: Reconciling European and International Approaches

2017 ◽  
Vol 2016 (22) ◽  
pp. 76
Author(s):  
Eilionóir Flynn
Keyword(s):  
Human Rights ◽  
Right To Health ◽  
European Convention ◽  
Font Size ◽  
Right To Life ◽  
International Human Rights ◽  
Persons With Disabilities ◽  
International Human ◽  
Human Rights Norms ◽  
Article 5

<p><span style="font-family: 'Helvetica',sans-serif; font-size: 12pt; mso-fareast-font-family: Calibri; mso-fareast-theme-font: minor-latin; mso-ansi-language: EN-GB; mso-fareast-language: EN-US; mso-bidi-language: AR-SA;">Persons with disabilities are subject to unique forms of deprivation of liberty, often justified by reference to the need to protect their right to life, right to health, and to protect the human rights of others. This paper examines disability-specific forms of deprivation of liberty, particularly those authorised in mental health and capacity law, in light of their compliance with European and international human rights frameworks. It explores the apparent tension between Article 5 of the European Convention on Human Rights, which permits deprivation of liberty of ‘persons of unsound mind’ in certain circumstances, and Article 14 of the UN Convention on the Rights of Persons with Disabilities, which states that ‘the existence of a disability shall in no case justify a deprivation of liberty.’ The challenges in attempting to comply with both provisions are illustrated through reference to developments in England and Wales. This paper also seeks to offer a way forward for States Parties to both Conventions, in order to protect the rights of persons with disabilities.</span></p>

Germany

2018 ◽  
Author(s):  
Valentin Aichele
Keyword(s):  
Human Rights ◽  
International Law ◽  
Direct Effect ◽  
Federal Courts ◽  
International Human Rights ◽  
Persons With Disabilities ◽  
Public International Law ◽  
Monitoring Mechanism ◽  
International Human ◽  
Human Rights Norms

This chapter analyses the use and interpretation of the Convention on the Rights of Persons with Disabilities (CRPD) in sixty-nine decisions of German federal courts between 2009 and mid-2016. German courts’ failure to be proactive in demonstrating ‘friendliness towards public international law’ when dealing with international human rights norms has been criticised. The National CRPD Monitoring Mechanism addressed problems in the application of the law. This chapter investigates the courts’ understanding of basic CRPD concepts, judicial techniques, interpretation methods and specific CRPD provisions. The importance of the concepts of self-executing provisions and direct effect is discussed. In quantitative terms, German courts have referred to the CRPD more often than any other UN international human rights instrument. Furthermore, in qualitative terms, federal courts have become more receptive towards the CRPD. However, it is clear that much of the potential for courts to use the CRPD in the realisation of the rights of persons with disabilities remains untapped.

Hassan v. The United Kingdom (Eur. Ct. H.R.)

2015 ◽  
Vol 54 (1) ◽  
pp. 83-129 ◽  
Author(s):  
Elizabeth Stubbins Bates
Keyword(s):  
Human Rights ◽  
Armed Conflicts ◽  
European Convention ◽  
International Humanitarian Law ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
International Human ◽  
Article 5

On September 16, 2014, the Grand Chamber of the European Court of Human Rights (the Court) gave its judgment in the case of Hassan v. United Kingdom.This is the Court’s first explicit engagement with the co-applicability of international humanitarian law and international human rights law in relation to detention in international armed conflicts. The judgment is significant for its rejection of the government’s argument that international humanitarian law operates as lex specialis to displace international human rights law entirely during the “active hostilities phase of an international armed conflict.” It is also noteworthy for the majority’s ruling that provisions on detention of prisoners of war and the internment of protected persons in the Third and Fourth Geneva Conventions of 1949 could be read into Article 5 (right to liberty and security) of the European Convention on Human Rights (the European Convention), creating a new ground for detention under Article 5(1) in international armed conflicts and modifying the procedural guarantees in Article 5(4).

The Emergence of International and Regional Value Systems as a Manifestation of the Emerging International Constitutional Order

2006 ◽  
Vol 19 (3) ◽  
pp. 611-632 ◽  
Author(s):  
ERIKA DE WET
Keyword(s):  
Human Rights ◽  
Value Systems ◽  
European Convention ◽  
International Human Rights ◽  
Value System ◽  
National Courts ◽  
European Court ◽  
International Human ◽  
Human Rights Norms ◽  
Jus Cogens

This article explores the composition of the emerging international value system, including its hierarchical components. It also contrasts this fragile international value system with the more strongly developed European value system (European public order), as concretized by the European Convention on Human Rights and the jurisprudence of the European Court of Human Rights. It first argues that international human rights norms constitute the ‘core content’ of a constantly evolving and layered international value system. Within this value system, a special but fragile hierarchical status is granted to those human rights norms that qualify as jus cogens and/or erga omnes norms. Thereafter it explores the manner in which the European Court of Human Rights has concretized the normative superiority of obligations under the European Convention on Human Rights for member states vis-à-vis other norms of public international law, to the extent that a conflict between these norms arises. It concludes by examining whether these developments could also strengthen the international value system through a spill-over effect via the work of international human rights bodies and national courts. This, in turn, would strengthen the ability of the international value system to determine the outcome of conflicts between international obligations stemming from different international regimes.

scholarly journals PENOLAKAN PEMBERIAN BANTUAN KEMANUSIAAN DARI PBB OLEH MYANMAR DALAM PRESPEKTIF HUKUM HAK ASASI MANUSIA INTERNASIONAL

Arena Hukum ◽  
2020 ◽  
Vol 13 (3) ◽  
pp. 589-606
Author(s):  
Fransiska Susanto ◽  
Keyword(s):  
Human Rights ◽  
Right To Health ◽  
The State ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Right To Life ◽  
International Human Rights ◽  
Right To Food ◽  
International Human ◽  
United Nation

The rejection from Myanmar over the United Nation humanitarian aids leads to unnecessary suffering for Rohingya in Myanmar. The rejection are not only for the foods but all kind of aids from the United Nation. The aid rejection violates a number of human rights such as right to life, right to food, and right to health. Although the Myanmar government could decline aids under their rights of sovereignty state, the state must first give sufficient aids to Rohingya. The state could not just cut or decline the humanitarian aids if the state is unwilling and unable to provide the humanitarian aids to the citizen. This paper investigates whether those actions of the Myanmar Government violates the human rights of Rohinya by analyzing the international human rights law instrument with the fact.

Municipal Courts and the International Interpretive Principle: Al-Kateb v Godwin

2020 ◽  
Vol 43 (3) ◽  
Author(s):  
Michael Kirby
Keyword(s):  
Human Rights ◽  
Common Law ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Global Problems ◽  
The Common ◽  
International Human ◽  
Human Rights Norms ◽  
Constitutional Adjudication

This article examines the decision in Al-Kateb v Godwin (2004) 219 CLR 562. It revisits the suggested ‘heresy‘ that international human rights law may influence the interpretation of the Australian Constitution and other legal texts. Accessing universal human rights law, including in constitutional adjudication, was endorsed in the Bangalore Principles on the Domestic Application of International Human Rights Norms 1988. The author suggests that interpreting statutory language in this way is not dissimilar to the common-law principle of interpreting statutes so as to uphold basic rights. But should an analogous approach be permissible in deciding the meaning of constitutional language? Although arguably invoked by the majority of the High Court in Mabo v Queensland [No 2] (1992) 175 CLR 1, in the context of declaring the common-law, so far this approach has not been accepted for constitutional elaboration in Australia. But should this be so in the age of global problems and internationalism?

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