scholarly journals The Democratic Challenge of Incorporation: International Human Rights Treaties and National Constitutions

2007 ◽  
Vol 38 (2) ◽  
pp. 217
Author(s):  
Joanna Harrington
Keyword(s):  
Human Rights ◽  
Supreme Court Justice ◽  
International Human Rights ◽  
The United Kingdom ◽  
International Commitments ◽  
Human Rights Treaties ◽  
International Body ◽  
International Human ◽  
Domestic Law

According to Canadian Supreme Court Justice Claire L’HeureuxDubé, the global judicial community is engaged in a process of dialogue, especially in cases involving the determination of constitutionally protected human rights. However, as this author notes, if there is a process of dialogue taking place, it does not always include the international treaty monitoring bodies supported by the United Nations, even when there is a treaty link between the international body and the domestic state. The author considers the approach taken by courts in South Africa, the United Kingdom and Ireland with respect to the judicial consideration of international human rights decisions, linking the prospects for dialogue to the express mandates to consider such case law within their constitutions, while contrasting the experience with that of Canada and New Zealand, where no such express imperative exists. The author concludes by suggesting that such a constitutionallydeterminedapproach may well be the most democratic means of reconciling a state’s international commitments with its domestic law.

Human Rights Treaties, Invalid Reservations, and State Consent

2002 ◽  
Vol 96 (3) ◽  
pp. 531-560 ◽  
Author(s):  
Ryan Goodman
Keyword(s):  
Human Rights ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Legal Remedy ◽  
Human Rights Treaties ◽  
State Consent ◽  
International Human ◽  
Multilateral Treaties

A continuing debate in international human rights law concerns the result of invalid reservations to multilateral treaties. The cardinal rule holds that a reservation cannot be incompatible with the object and purpose of a treaty. Yet a normative puzzle remains: what legal remedy should follow the determination of the invalidity of a reservation? Leading commentators have discussed a limited set of options. Three choices can be identified:

The Application of Human Rights Treaties in the Development of Domestic and International Law: A Personal Perspective

2009 ◽  
Vol 22 (4) ◽  
pp. 753-759
Author(s):  
TERESA A. DOHERTY
Keyword(s):  
Human Rights ◽  
International Criminal Law ◽  
International Humanitarian Law ◽  
Personal Perspective ◽  
Humanitarian Law ◽  
International Human Rights ◽  
Human Rights Treaties ◽  
Domestic Legislation ◽  
International Human ◽  
Domestic Law

AbstractThis article considers the application of international human rights treaties or conventions to domestic law in common law countries and the historical differences in approach between some jurisdictions. It promotes the view that the judiciary of a country which has signed an international human rights treaty or convention may refer to such a treaty when interpreting domestic law, notwithstanding the fact that the treaty or convention has not been incorporated into domestic legislation. The article also suggests that international human rights treaties and conventions have a role in developing international criminal law and international humanitarian law. It cites the example of the decision that forced marriage is an inhumane act, a crime against humanity, by the Special Court of Sierra Leone, and gives the factual and jurisprudential background to that decision.

A Study of the Use of Sharia Law in Religious Arbitration in the United Kingdom and the Concerns That This Raises for Human Rights

2013 ◽  
Vol 15 (3) ◽  
pp. 293-315 ◽  
Author(s):  
Jessie Brechin
Keyword(s):  
Human Rights ◽  
United Kingdom ◽  
European Convention ◽  
International Human Rights ◽  
England And Wales ◽  
The United Kingdom ◽  
International Human ◽  
The Uk ◽  
Human Rights Standards

The use of Islamic norms in the determination of arbitration in England and Wales has become a source of great controversy. Concerns are raised for the human rights of vulnerable parties who may be pressured into arbitrations and who may not be treated fairly under the agreed rules of arbitration or by arbitrators themselves. The Arbitration Act 1996 limits the ability to appeal arbitration decisions and as such does not safeguard the rights of these parties. As a signatory to the European Convention on Human Rights the UK is under an obligation to uphold human rights standards domestically, and it is argued that the way in which arbitration on religious norms is currently regulated does not comply with this obligation. This article considers some of the possible adaptations or alterations that could rectify the situation, improving parties' experience of religious arbitration and ensuring that the system remains compatible with international human rights obligations.

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.

The Fallacy of Effective Human Rights Protection under Relevant Treaty Law when Armed Groups Commit Violations

2018 ◽  
Author(s):  
Tilman Rodenhäuser
Keyword(s):  
Human Rights ◽  
Human Rights Violations ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Armed Groups ◽  
International Human Rights ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Human Rights Treaties ◽  
International Human

Chapter 5 adds to the contemporary discourse on human rights obligations of non-state armed groups by showing that in many situations, there is a clear legal need for these obligations. This chapter first engages in the debate on whether and to what extent certain human rights treaties address armed groups directly. Second, it shows that under the law of state responsibility, states are generally not responsible for human rights violations committed by non-state entities. Third, it recalls that under international human rights law, states have an obligation to protect human rights against violations committed by armed groups. However, it argues that because this cannot be a strict obligation but is one that depends on states’ capacities and the particular circumstances, often this framework cannot adequately protect individuals against human rights violations by armed groups. The result is a legal and practical need for human rights obligations of non-state armed groups.

The Institutional Future of the Covenants

2018 ◽  
Author(s):  
Felice D Gaer
Keyword(s):  
Human Rights ◽  
Body System ◽  
International Human Rights ◽  
Human Rights Treaties ◽  
Treaty Monitoring ◽  
Treaty Body ◽  
International Human ◽  
Normative Standards ◽  
Individual Petition

Longstanding proposals to strengthen implementation of the international human rights treaties have often focused on procedural reforms such as harmonizing methods of work or consolidating ten treaty monitoring bodies into one. This article reviews past reform efforts and then considers proposals to create stronger individual petition mechanisms—including a ‘world court’—as a way of strengthening human rights implementation. After discussing these proposals, the author offers additional ways to make the system more effective and efficient. She rejects the oft-suggested proposal to create a ‘world court’ for human rights, noting legal, organizational, logistical, and financial obstacles. Rather than rushing to tear down the current treaty body system, the author offers a proposal for determining how consolidation of petition proceedings might affect normative standards.

The Influence of the Two Covenants on States Parties Across Regions

2018 ◽  
Author(s):  
Samantha Besson
Keyword(s):  
Human Rights ◽  
Domestic Institutions ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
The Third ◽  
International Human ◽  
Domestic Influence ◽  
Domestic Law

As a companion to the five regional reports in this volume, this chapter’s aim is a double one: first, to bring the comparison up to the regional level, and second, to analyse the international and domestic institutions, procedures, and mechanisms that affect how international human rights instruments influence domestic law. The chapter is therefore both a study in comparative international human rights law and a contribution to its methodology. Its structure is four-pronged. The first section clarifies the aim, object, and method of the comparison. The second section presents a comparative assessment of the Covenants’ domestic influence across regions and develops a grid of comparative analysis. The third section addresses the authority of the Committees’ interpretations of the Covenants, relying on a bottom-up comparative law argument. The fourth section discusses the role of human rights comparison and of regional human rights law in enhancing the legitimacy of the Committees’ future interpretations.

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