National Security and Human Rights in International Law

The post war-on-terror era has witnessed several developments in international law, including the nature and function of national security. This article establishes a link between national security and human rights by looking at some practical implications from a State policy perspective and theoretical views. Any discussion on the two distinct areas of ‘national security’ and ‘human rights’ are, of course, not equal. However, the discussions in this article relate to how international law interacts with national security over human rights given that national security relates to a State’s domestic affairs but with implications for the international legal system. Thus, through theory and practice, this article demonstrates that national security and human rights are unstable. This article addresses the question of whether national security and human rights obligations are in conflict or whether international law has been over-responsive or under-responsive to either human rights or national security concerns.

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National Security and Human Rights in International Law

10.31228/osf.io/2cw3r ◽

2020 ◽

Author(s):

P. Sean Morris

Keyword(s):

Human Rights ◽

National Security ◽

International Law ◽

War On Terror ◽

Theory And Practice ◽

International Legal System ◽

Post War ◽

Domestic Affairs ◽

And Function ◽

Practical Implications

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Diplomatic Assurances Against Torture – An Effective Strategy? A Review of Jurisprudence and Examination of the Arguments

Nordic Journal of International Law ◽

10.1163/157181008x374870 ◽

2008 ◽

Vol 77 (4) ◽

pp. 319-364 ◽

Cited By ~ 1

Author(s):

Lena Skoglund

Keyword(s):

Human Rights ◽

International Law ◽

War On Terror ◽

The State ◽

Security Threats ◽

International Human Rights ◽

Actual Risk ◽

Substantial Risk ◽

International Human ◽

Controversial Area

AbstractHuman rights organisations have warned repeatedly that basic human rights are being challenged in the so-called 'War on Terror'. One particularly controversial area is the use of diplomatic assurances against torture. According to international human rights instruments, the state shall not return anyone to countries in which they face a substantial risk of being subjected to torture. In the 'War on Terror', an increasing number of non-citizens are being deemed 'security threats', rendering them exempt from protection in many Western states. To be able to deport such 'threats' without compromising their duties under international law, states are increasingly willing to accept a diplomatic assurance against torture – that is, a promise from the state of return that it will not subject the returnee to torture. There is wide disagreement as to whether and/or when diplomatic assurances can render sufficient protection to satisfy the obligations of non-refoulement to risk of torture. Whereas the human rights society label such assurances as 'empty promises', others view them as effective, allowing states to retain their right to remove non-citizens without violating international law. This article reviews international and selected national jurisprudence on the topic of diplomatic assurances against torture and examines if and/or when such assurances might render sufficient protection against torture to enable removals in accordance with international law. The courts and committees that have reviewed the use of diplomatic assurances against torture have identified essential problems of using them, thus rejecting reliance on simple promises not to torture. However, they have often implied that sufficient protection might be rendered by developing the assurances. I argue that this approach risks leading the governments into trying to perfect a system that is inherently flawed – whilst, incidentally, deportations to actual risk of torture continue. Even carefully modelled assurances render only unreliable protection against torture. For this, and reasons connected to undesirable side-effects of their use, I argue that the practice should be rejected.

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Book IV Multilateral Diplomacy, Human Rights, and International Organizations, 16 Theory and Practice of Multilateral Diplomacy

10.1093/law/9780198739104.003.0016 ◽

2016 ◽

Author(s):

Parry Emyr Jones

Keyword(s):

Human Rights ◽

United Nations ◽

International Organizations ◽

Theory And Practice ◽

Modern State ◽

Cooperative Action ◽

Bretton Woods ◽

Post War ◽

Multilateral Diplomacy ◽

Bretton Woods Institutions

This chapter considers the theory and practice of multilateral diplomacy. The multilateral approach to diplomacy became increasingly common post-1945. It was partly a generic consequence of the modern state system, and partly a response to the challenges of the post-war period when the Bretton Woods institutions and the United Nations were finding their place. This approach also became increasingly common as regional/global efforts grew to address issues which concerned many countries, and were not confined to the territory of one State. The realization that comprehensive solutions to certain challenges for a State could not be met by that State acting alone, but required cooperative action by several States, fuelled the need for multilateral approaches. Indeed the responses required cooperative action by many. Paradoxically this evolution of cooperative action was firmly anchored on the territorial integrity and the equality of States, while nevertheless helping to facilitate peaceful change.

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Limitations of Fundamental Human Rights and Freedoms in International Law and Novations in the Russian Criminal Legislation

Journal of Russian Law ◽

10.12737/1209 ◽

2013 ◽

Vol 1 (11) ◽

pp. 75-84

Author(s):

Юрий Ромашев ◽

YUriy Romashyev

Keyword(s):

Human Rights ◽

National Security ◽

International Law ◽

Criminal Code ◽

Public Order ◽

European Court ◽

State Secret ◽

The Russian Federation ◽

Criminal Legislation ◽

State Secrets

The author analyses new amendments related to state secrets protection: amendments to Article 275 ‘High Treason’, Article 276 ‘Espionage’, Article 283 ‘Disclosure of a State Secret’, and adopted Article 283.1 ‘Illegal Receipt of Information Constituting a State Secret’ of the Criminal Code of the Russian Federation in respect to their conformity with acceptable restrictions of fundamental human rights and freedoms. Special attention is paid to theoretical and action-oriented aspects of restrictions of fundamental human rights and freedoms. The author investigates relevant provisions of international documents, practice of the European Court of Human Rights, doctrines of leading experts in this sphere. The author notes that the criteria for restricting fundamental human rights and freedoms should be established entirely under the law and be indispensable and applicable in a democratic society, be aimed at the protection of national security and public order. The author draws the conclusion on the urgent character and timeliness of introducing the abovementioned novations into the Russian criminal legislation, and their conformity with generally recognized principles and rules of international law.

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The right to the truth in international law: fact or fiction?

International Review of the Red Cross ◽

10.1017/s1816383106000518 ◽

2006 ◽

Vol 88 (862) ◽

pp. 245-273 ◽

Cited By ~ 30

Author(s):

Yasmin Naqvi

Keyword(s):

Human Rights ◽

International Law ◽

Criminal Law ◽

The State ◽

Legal Concept ◽

The Right ◽

Practical Implications ◽

Legal Right

The right to the truth has emerged as a legal concept at the national, regional and international levels, and relates to the obligation of the state to provide information to victims or to their families or even society as a whole about the circumstances surrounding serious violations of human rights. This article unpacks the notion of the right to the truth and tests the normative strength of the concept against the practice of states and international bodies. It also considers some of the practical implications of turning “truth” into a legal right, particularly from the criminal law perspective.

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The Principle of "Effectiveness" in the Recent Jurisprudence of the European Court of Human Rights: Its Different Dimensions and Its Consistency with Public International Law – No Need for the Concept of Treaty Sui Generis

Nordic Journal of International Law ◽

10.1163/157181010x12668401899039 ◽

2010 ◽

Vol 79 (2) ◽

pp. 245-277 ◽

Cited By ~ 3

Author(s):

Daniel Rietiker

Keyword(s):

Human Rights ◽

International Law ◽

Point Of View ◽

European Convention ◽

Vienna Convention ◽

Four Dimensions ◽

European Court ◽

Different Dimensions ◽

International Legal System ◽

Teleological Interpretation

AbstractThe recent past has shown an ever-growing fragmentation of the international legal system where lawyers and judges are facing more and more the phenomenon of the same legal question being discussed in different fora. This is particularly the case in the field of human rights that entails the dispersal of responsibilities for interpretation of numerous instruments among various different judicial and quasi-judicial bodies, of both universal and regional nature. In order to secure coherence and legal certainty in the system, it is important to respect a set of principles and rules of general international law, in particular Articles 31–33 of the 1969 Vienna Convention of the Law of Treaties (VCLT). The first goal of this article is to analyse whether the Court applies the rules of the VCLT to the interpretation of the European Convention on Human Rights (ECHR). Secondly, assuming that the VCLT fully applies, it will be analysed whether Article 31(1) VCLT is flexible enough to allow nevertheless some leeway for the development of specificities, especially as a result of the particular nature of the ECHR. Thirdly, it will be shown that the Court has indeed developed a set of specific methods of interpretation, aiming to render the rights enshrined in the ECHR effective. From the author's point of view, they can all be regarded as sub-forms (or partial aspects) of the teleological interpretation. He distinguishes between four dimensions of the principle of "effectiveness".

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Interstitial rules and the contested application of human rights law and the laws of war in counterterrorism

Global Constitutionalism ◽

10.1017/s2045381716000071 ◽

2016 ◽

Vol 5 (2) ◽

pp. 207-237 ◽

Cited By ~ 1

Author(s):

MICHAEL E. NEWELL

Keyword(s):

Human Rights ◽

Law Enforcement ◽

International Law ◽

War On Terror ◽

International Human Rights Law ◽

Human Rights Law ◽

Laws Of War ◽

Legal Norms ◽

Drone Strikes ◽

The Law

Abstract:The laws of war and international human rights law (IHRL) overlap, often with competing obligations. When two or more areas of the law overlap, political agents attempt to address these areas of ambiguity with interstitial rules. However, a lack of consensus on interstitial rules can destabilise the law, leading to increased contestation of legal norms and principles. Such is the case for international law in counterterrorism. Prior to the 11 September 2001 attacks (9/11), international agreements and US domestic practices placed counterterrorism within the framework of law enforcement. After 9/11, the Bush Administration replaced law enforcement with armed conflict and the laws of war as the dominant paradigm for counterterrorism, but this decision, among other legal justifications in the War on Terror, has been contested by the international legal community. As IHRL still applies in law enforcement operations, international law in counterterrorism now sits within a contested overlap of IHRL and the laws of war. The contestation of US policies in the War on Terror, including the use of drone strikes in particular, is a product of this unresolved overlap and the lack of clear interstitial rules. Lacking these rules, US counterterrorism policies risk undermining the rule of law.

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The United Nations Children’s Fund

10.1093/oso/9780190672676.003.0009 ◽

2018 ◽

Author(s):

Benjamin Mason Meier ◽

Mitra Motlagh ◽

Kumanan Rasanathan

Keyword(s):

Human Rights ◽

Child Health ◽

International Law ◽

Right To Health ◽

Implementation Framework ◽

Child Rights ◽

Health And Human Rights ◽

Rights Of The Child ◽

Health Programming ◽

Practical Implications

This chapter assesses UNICEF efforts to implement the child’s right to health, reviewing UNICEF’s evolving governance to address global health, examining the influence of the Convention on the Rights of the Child (CRC) on UNICEF’s mission, and analyzing the opportunities and challenges in using a rights-based approach to advance children’s health. Where UNICEF had long been concerned by the practical implications of implementing human rights, the 1989 CRC solidified UNICEF’s central institutional role in the development and implementation of child rights. This development under international law created a burgeoning implementation framework to advance child health and human rights. Based upon this CRC mandate, UNICEF has sought to implement the child’s right to health across its health programming, assistance to states, and work with the Committee on the Rights of the Child.

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Three Human Rights Agendas

Canadian Journal of Law & Jurisprudence ◽

10.1017/s0841820900004094 ◽

2006 ◽

Vol 19 (02) ◽

pp. 237-254 ◽

Cited By ~ 4

Author(s):

David A. Reidy

Keyword(s):

Human Rights ◽

International Law ◽

Criminal Liability ◽

Prima Facie ◽

International Order ◽

Theory And Practice ◽

Political Obligations ◽

The Third ◽

Voluntary Initiative ◽

Necessary And Sufficient

In this paper I distinguish between three conceptions of human rights and thus three human rights agendas. Each is compatible with the others, but distinguishing each from the others has important theoretical and practical advantages. The first conception concerns those human rights tied to natural duties binding all persons to one another independent of and prior to any institutional context and the violation of which would “shock the conscience” of any morally competent person. The second concerns the institutional conditions necessary and sufficient for particularist legal and political obligations to take on prima facie moral force so that the members of different polities face one another in an asymmetric moral relationship, with each side having a rightful claim to political self-determination. The third concerns those human rights arising exclusively as a matter of positive international law out of the voluntary undertakings of legitimate polities within the international order. Each of these different conceptions is tied to a different human rights agenda. The second is tied to the struggle to realize recognitional norms of legitimacy within the international order. The third is tied to the ongoing effort to incorporate into positive international law through voluntary initiative an ever expanding moral consensus between legitimate polities. The first is tied to the emerging practice of humanitarian intervention and system of international criminal liability. Thus, while all human rights share certain features - they’re universal, and so on - human rights differ in important ways. Attending to these differences would likely improve both the theory and practice of human rights.

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Human rights violations by war crimes: Theory and practice

Journal of the National Academy of Legal Sciences of Ukraine ◽

10.37635/jnalsu.28(4).2021.270-278 ◽

2021 ◽

Vol 28 (4) ◽

pp. 270-278

Author(s):

Volodymyr P. Pylypenko ◽

Khrystyna T. Sliusarchuk ◽

Pavlo B. Pylypyshyn ◽

Svitlana V. Boichenko

Keyword(s):

Human Rights ◽

International Law ◽

Modern Society ◽

War Crimes ◽

Legal Regulation ◽

Theory And Practice ◽

Human Rights Violations ◽

Legitimate Interests ◽

Legislative Amendments ◽

Comprehensive Study

This paper provides a comprehensive study of theoretical and practical issues of violation of human rights by war crimes, protection of legitimate interests of individuals in national and international law as a result of such violation. The purpose of this study is a comprehensive analysis of theoretical and applied issues related to the protection of violated rights and legitimate interests of individuals in public international law as a result of the commission of war crimes, and the formulation of scientifically sound proposals for improving the current legislation of Ukraine and the practice of its application in this area. The paper analyses the current scientific opinions and legislation on the regulation of illegal acts and liability for damage caused to victims as a result of violation of human rights and fundamental freedoms by war crimes. Furthermore, the existing forms, methods, and means of protecting the rights and legitimate interests of such persons in Ukraine and in the international arena were determined. The paper also provides a comprehensive study of the existing concept, legal nature and main features of war crimes and their legal regulation in Ukrainian legislation. Legislative amendments to the regulations governing this issue are proposed and the study justifies the position regarding the existence of an exclusively judicial procedure for resolving issues of human rights violations by war crimes, the result of which should be the adoption of a court decision. As a result of the study, the current scientific statements and achievements are clearly identified, as well as those that have emerged due to the constant development of public relations and substantial changes in international relations of various states, which causes armed conflicts and war crimes. One of the achievements of the scientific study is the proof of the importance of the problem of violated human rights in modern society and the extreme need for its research. After all, modern legislation requires substantial changes and improvement of the existing provisions with the subsequent possibility of their practical application

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