scholarly journals The Ramifications of Reservations to Human Rights Treaties

2020 ◽  
Vol 8 (1) ◽  
pp. 150-165
Author(s):  
Lara Mullins
Keyword(s):  
Human Rights ◽  
International Law ◽  
The United States ◽  
The State ◽  
State Sovereignty ◽  
Political Climate ◽  
European Court ◽  
Human Rights Treaties ◽  
Conservative Values

This paper discusses the legal ramifications of reservations to multilateral human rights treaties. It examines the approach of the International Court of Justice (ICJ), compared to that of the European Court of Human Rights (ECtHR), in light of the general practice in international law relating to reservations and the International Law Commission’s commentary. The paper then discusses the scope for change and growth, given the nature of the two different approaches. Once it has set out the current law it describes the role of the evolving moral, social and political climate in society and the effect that it has on the conversation around human rights and treaty reservations. It answers three main questions around reservations: first, whether reservations are allowed; second, the conditions under which they are allowed; and third, if reservations are not allowed, whether the invalid reservation cancels a party’s membership of the treaty. Having answered these three questions, the paper draws to the conclusion that, ultimately, for international law to continue to be effective, state sovereignty must be given the utmost respect and importance in relation to reservations. With the current polarisation of the political climate, as is evidenced by the traditionally liberal states’ leaning towards conservative values, as in Britain and the United States, a push by the ECtHR to sever reservations from treaties and still bind the state will only alienate key players from the international stage. At face value, one may be inclined to think that the stringent protection of human rights values and limiting the reservations to such values is beneficial but, in reality, this would make participation in the international framework unappealing to states as their sovereignty would be infringed. Therefore, the ICJ’s approach is advantageous as it understands the role of reservations in achieving participation and it also understands the state practice element. Thus, in line with the ILC commentary and the ICJ’s judgements, the ECtHR’s recent rulings will not become the international law norm and state sovereignty with respect to reservations will continue to prevail.

Re-Conceptualizing the Right to Seek and Obtain Asylum in International Law

2015 ◽  
Vol 4 (2) ◽  
pp. 303-332
Author(s):  
Salvatore Fabio Nicolosi
Keyword(s):  
Human Rights ◽  
International Law ◽  
Asylum Seekers ◽  
International Human Rights ◽  
The Past ◽  
European Court ◽  
Triggering Factor ◽  
The Right ◽  
Human Rights Standards

Over the past few years the issue of asylum has progressively become interrelated with human rights. Asylum-related stresses, including refugee flows and mass displacements, have mitigated the traditional idea of asylum as an absolute state right, in so far as international human rights standards of protection require that states may have the responsibility to provide asylum seekers with protection. Following this premise, the article argues that the triggering factor of such overturning is significantly represented by the judicial approach to the institution of asylum by regional human rights courts. After setting the background on the interrelation of asylum with human rights, this article conceptualises the right to asylum as derived from the principle of non-refoulement and to this extent it delves into the role of the two regional human rights courts, notably the European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights (IACtHR), in order to explore whether an emerging judicial cross-fertilisation may contribute to re-conceptualisation of the right to asylum from a human rights perspective.

Part I Conclusion of Treaties, 4 Legal Consequences of an Impermissible Reservation to a Human Rights Treaty: Where Do We Stand?

2011 ◽  
Author(s):  
Simma Bruno ◽  
Hernández Gleider I
Keyword(s):  
Human Rights ◽  
International Law ◽  
The State ◽  
The Body ◽  
Special Rapporteur ◽  
Central Question ◽  
Human Rights Treaties ◽  
International Law Commission ◽  
Legal Consequences ◽  
Law Commission

The Vienna Convention's regime on reservations is particularly unfit to cope with the specific characteristics of human rights treaties due to the very limited and particular role played by reciprocity and the ‘inward-targeted’ nature of the obligations stipulated in such instruments. Regional human rights courts and UN human rights treaty bodies have developed certain methods of monitoring the reservations practice of states parties to the respective instruments, but a central question has hitherto remained very controversial, namely that of the legal consequences of a reservation to a human rights treaty which is considered incompatible with that treaty's object and purpose and therefore impermissible. After many years of dealing with the topic of reservations, the UN International Law Commission has finally addressed this issue: Special Rapporteur Alain Pellet has proposed a solution which finds itself essentially in accord with the ‘severability’ doctrine advocated by the human rights community, reconciling this approach and the principle of treaty consent through the introduction of a presumption of severability of an invalid reservation from the body of a human rights treaty, to which the State making such a reservation will then remain bound in full. This chapter supports the Special Rapporteur's proposal, traces its development, and discusses both the advantages and the specific challenges posed by a presumption of severability.

scholarly journals Fault, knowledge and risk within the framework of positive obligations under the European Convention on Human Rights

2020 ◽  
Vol 33 (3) ◽  
pp. 601-620
Author(s):  
Vladislava Stoyanova
Keyword(s):  
Human Rights ◽  
The State ◽  
European Convention ◽  
Main Argument ◽  
European Court ◽  
Normative Considerations

AbstractThe European Court of Human Rights has consistently reiterated that positive obligations under the European Convention on Human Rights arise when state authorities know or ought to have known about the risk of harm. This article attempts to describe and assess the role of state knowledge in the framework of positive obligations, and to situate the Court’s approach to knowledge about risk within an intelligible framework of analysis. The main argument is that the assessment of state knowledge is imbued with normative considerations. The assessment of whether the state ‘ought to have known’ is intertwined with, first, concerns that positive obligations should not impose unreasonable burden on the state and, second, the establishment of causal links between state omissions and harm.

Principles of National Constitutionalism limiting Individual Claims in Human Rights Law

ICL Journal ◽  
2013 ◽  
Vol 7 (1) ◽  
Author(s):  
Paul De Hert ◽  
Stefan Somers
Keyword(s):  
Human Rights ◽  
Church And State ◽  
Freedom Of Religion ◽  
Proper Function ◽  
Religious Conflicts ◽  
European Court ◽  
Margin Of Appreciation ◽  
Human Rights Treaties ◽  
The Relationship

AbstractThe scope of the fundamental right to freedom of religion has been broadly dis­cussed in recent jurisprudence and doctrine. Doctrine has however paid little attention to the role of constitutionalism and its principles such as this of the separation of church and state and the division of power. These principles are often not mentioned as such in inter­national human rights treaties. Does this mean that they are irrelevant in human rights adjudication?This article addresses the proper function of constitutionalism in human rights jurisprudence and in settling religious conflicts more in general. The Lautsi judgment of the European Court of Human Rights is used as a trigger to look at the relationship between religion, constitutionalism and human rights, and at the legitimacy of supranational courts. The article argues that international human rights jurisprudence must take national consti­tutionalism and its principles into account when dealing with the freedom of religion, even when those principles are not explicitly enshrined in human rights treaties. For this the use of the margin of appreciation seems to be appropriate.

The principle of subsidiarity as a constitutional principle in international law

2013 ◽  
Vol 2 (1) ◽  
pp. 37-62 ◽  
Author(s):  
ANDREAS FOLLESDAL
Keyword(s):  
International Law ◽  
The State ◽  
Legal Order ◽  
State Sovereignty ◽  
Public International Law ◽  
Constitutional Principle ◽  
The Us ◽  
State Compliance ◽  
State Consent

AbstractThis paper explores subsidiarity as a constitutional principle in international law. Some authors have appealed to a principle of subsidiarity in order to defend the legitimacy of several striking features of international law, such as the centrality of state consent, the leeway in assessing state compliance and weak sanctions in its absence. The article presents such defences of state-centric aspects of international law by appeals to subsidiarity, and finds them wanting. Different interpretations of subsidiarity have strikingly different institutional implications regarding the objectives of the polity, the domain and role of subunits, and the allocation of authority to apply the principle of subsidiarity itself. Five different interpretations are explored, drawn from Althusius, the US federalists, Pope Leo XIII, and others. One upshot is that the principle of subsidiarity cannot provide normative legitimacy to the state-centric aspects of current international law on its own. It stands in need of substantial interpretation. The versions of subsidiarity that match current practices of public international law are questionable. Many crucial aspects of our legal order must be reconsidered – in particular the standing and scope of state sovereignty.

scholarly journals The problem of applying reservations to international human rights agreements

2021 ◽  
pp. 68-73
Author(s):  
Ivanna Maryniv ◽  
Liubov Rudai
Keyword(s):  
Human Rights ◽  
International Law ◽  
Legal Regulation ◽  
European Convention ◽  
Effective Control ◽  
International Treaties ◽  
International Human Rights ◽  
European Court ◽  
Human Rights Treaties ◽  
International Human

A problem statement. Human rights law, as a branch of public international law, to date, is mainly codified and consists mainly of treaty rules contained in universal and regional conventions. At the same time, in most cases, the parties to these agreements make reservations of both a substantive and procedural nature that apply to all generations of human rights. The question arises as to the legitimacy of the reservations declared by states to international acts on human rights and freedoms. Аnalysis of research and publications. Many international lawyers deal with the issue of reservations to human rights treaties and their validity. Thus, the works of E.S. Alisievich, are devoted to this issue, I.I. Lukashuk, V.G. Butkevich, V.L. Tolstoy, M.V. Buromensky and others. However, there are a number of problems with the legal regime of reservations to human rights treaties. The main thesis that reveals their essence is that there is no mechanism for effective control over the legitimacy of such reservations. The main text. The article considers the concept of reservations to international treaties, examines the problem of issuing reservations to international human rights treaties. The application of the institution of reservations is studied on the example of certain international treaties in the field of human rights, such as: the European Convention on Human Rights, the Convention on the Elimination of All Forms of Discrimination against Women, the African Charter on Human and Peoples’ Rights. The case law of the European Court of Human Rights on the application of reservations to the European Convention on Human Rights is studied. Conclusions. Today, the sovereign right of every state to stipulate international treaties is firmly established in international law, but there is no clear legal regulation of this institution that would prevent abuses by states in this area. We see the need to further study the institution of reservations to human rights treaties, its development and the development of general principles, procedures, and control over their legitimacy.

scholarly journals STATE SOVEREIGNTY, INTERNATIONAL HUMAN MOBILITY AND HUMAN RIGHTS

2015 ◽  
Vol 12 (5) ◽  
pp. 198
Author(s):  
Luís Renato Vedovato ◽  
Samyra Haydêe Dal Farra Naspolini
Keyword(s):  
Human Rights ◽  
Human Mobility ◽  
The State ◽  
State Sovereignty ◽  
International Human Rights ◽  
The Past ◽  
Human Rights Treaties ◽  
International Human ◽  
The Right

International human mobility and human rights can be linked by the dinamogenesis theory. The State sovereignty isn’t the same it was in the past. The State can’t decide about the right to entry without consider international human rights treaties. The nationality has an important row in finding how dinamogenesis can modify the interpretation of the State sovereignty. The right to entry is built in the evolution of human rights. Now State has no more the discretion to decide who can enter its territory, due to dinamogenesis and human rights.

scholarly journals Human dignity: an illusory limit for the evolutive interpretation of the ECHR?

Amicus Curiae ◽  
2019 ◽  
pp. 20-28
Author(s):  
Pavel Bureš
Keyword(s):  
Human Rights ◽  
International Law ◽  
Human Dignity ◽  
Case Law ◽  
Senior Lecturer ◽  
Public International Law ◽  
European Court ◽  
The Subject ◽  
The Relationship

In this article Pavel Bureš (Senior Lecturer in Public International Law in the Faculty of Law at Palacky University, Czech Republic) aims to portray some basic elements of the relationship between the concepy of human dignity and the evolutive interpretation, setting out key elements, notions and considerations for further thoughts. The article presents some basic issues related to the subject matter, then focuses on the evolutive interpretation, and finally outlines the role of human dignity in the case law related to the evolutive interpretation. Index keywords: Human rights, human dignity, European Court of Human Rights

The Philippine President as Tortfeasor-in-Chief: Establishing Civil Liability for Constitutional Negligence

2009 ◽  
Vol 4 ◽  
pp. 1-54 ◽  
Author(s):  
Florin Ternal Hilbay
Keyword(s):  
United States ◽  
Human Rights ◽  
International Law ◽  
Civil Liability ◽  
The United States ◽  
Class Action ◽  
Information Ecology ◽  
Colonial Era ◽  
Culture Of Impunity

AbstractThis article analyzes the liability of the Philippine President for the tort of constitutional negligence in relation to the murders and forced disappearances of leftists, journalists, and other dissidents. It uses the international law doctrine of command responsibility as a form of attribution that may be used, by analogy, to hold the President accountable for a culture of impunity. The article describes the role of the President as the regulator of a human rights-conducive information ecology and argues that massive human rights violations meant to silence dissidents are a source of liability for which a class action suit is an available remedy. Finally, it looks at the concept of presidential immunity from suit from a comparative perspective and argues that the continued application of restrictive immunity rules established during the American colonial era is misplaced considering the universalist design of the present Philippine Constitution and developments in immunity jurisprudence in the United States.

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