Customary law and human rights

2015 ◽  
Author(s):  
Evadné Grant
Keyword(s):  
Human Rights ◽  
Customary Law

scholarly journals Diplomatic protection in international law and the United Nations

2013 ◽  
pp. 667-681
Author(s):  
Bojan Milisavljevic
Keyword(s):  
Human Rights ◽  
United Nations ◽  
International Law ◽  
Customary Law ◽  
Diplomatic Protection ◽  
History Of ◽  
The United Nations ◽  
International Law Commission ◽  
The Impact ◽  
Law Commission

The paper deals with the issue of the diplomatic protection in international law and its development through the history of the international community. In this sense, the author investigates the practice of states regarding the application of diplomatic protection and the steps taken by the International Law Commission of the United Nations on the codification of this area. In 2004 International Law Commission adopted at first reading a full set of draft articles. In this paper is presented judicial practice, especially of the International Court of Justice, in the field of diplomatic protection in order to evaluate whether the approach of the Court to diplomatic protection has become more human-rights oriented in the last few years. Author presents the development of customary law rules relating to diplomatic protection and its transition into a whole system of rules through the work of the International Law Commission. In this sense, these are the basic stages in the codification of rules on diplomatic protection and the United Nations contribution to the protection of the rights of foreign nationals. This article points the development of universal and regional mechanisms to protect human rights and highlights the impact of those mechanisms on traditional measures of diplomatic protection.

Functions of compensation for human rights violation in international and national judicial decisions

2021 ◽  
Vol 11 (1) ◽  
pp. 81-101
Author(s):  
Dmitry Kuznetsov
Keyword(s):  
Human Rights ◽  
Effective Means ◽  
National Court ◽  
Case Law ◽  
The State ◽  
Customary Law ◽  
Human Rights Violations ◽  
Complex Nature ◽  
European Court ◽  
International Responsibility

When establishing human rights violations committed by the state, should it be violation of internationally protected rights or constitutional rights, the violator is obliged to compensate for the harm caused. In the meantime, neither international sources, nor national legal acts and case law answer the question whether the obligation to compensate is exhausted by the compensation awarded in accordance with a decision of an international judicial body or such a payment has punitive nature, and the state keeps the obligation to compensate the damage within the frameworks of national proceedings. Following the first part of opening remarks the second part of the article studies universal international law approach towards the state obligation to compensate for human rights violations, it reviews positions of the International Court of Justice, the model established in international customary law of international responsibility. The third part discusses the compensation mechanism of the European Court of Human Rights and a number of cases where the Russian Federation was the respondent state. The forth part considers national regulation of the Council of Europe states and case law thereof. The author argues that the established international case law in respect of awarding compensations for human rights violations is too restrictive – it does not take into account a complex nature of this phenomenon which includes both correction of the individual applicant situation (restitution of the pre-existed situation) and prevention of similar situations in the future. It is concluded that awarding the compensation by an international body primarily constitutes a measure of international responsibility whereas consideration by a national court is a more effective means of restitution of the applicants rights and that the national court shall not deny consideration of applicants claims due to the fact that they have already been awarded compensation by the international judicial body including the European Court of Human Rights.

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.

9 Occupation

2021 ◽  
Author(s):  
Dörmann Knut ◽  
Vité Sylvain
Keyword(s):  
Human Rights ◽  
Exceptional Case ◽  
Customary Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
International Court Of Justice ◽  
Occupied Territory ◽  
International Court ◽  
Occupied Territories

This chapter addresses the present state of the law of occupation, highlighting also the increasing importance of human rights for the protection of civilians in occupied territories. International law on belligerent occupation determines the rights and obligations of a party to an armed conflict which occupies territory of the adverse party. It also codifies the rights and duties of the residents of such occupied territory. The treatment of the population of an occupied territory is measured against standards set by international humanitarian law and human rights law concurrently. The International Court of Justice (ICJ) left no doubt that as a rule, the specific provisions of GC IV and relevant rules of customary law relating to belligerent occupation take precedence over human rights law, as law specifically drawn up for issues arising out of belligerent occupation (lex specialis). In an exceptional case, it may be determined that a human rights rule offers greater protection to the inhabitants of an occupied territory. When assessing the interplay between international humanitarian law and human rights law, this must be done on a right-by-right or case-by-case basis, respecting the special situation of occupation, rather than in a wholesale manner.

Non-State Armed Groups and the Power to Detain in Non-International Armed Conflict

2020 ◽  
Vol 53 (1) ◽  
pp. 3-33
Author(s):  
Joshua Joseph Niyo
Keyword(s):  
Human Rights ◽  
Armed Conflict ◽  
Case Law ◽  
Customary Law ◽  
International Humanitarian Law ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Legal Basis ◽  
Armed Groups ◽  
Critical Feature

The restriction of personal liberty is a critical feature in all conflicts, whether they are of an international character or not. With the increased prevalence of non-international armed conflict and the drastic proliferation of non-state armed groups, it is critical to explore whether such groups can legally detain or intern persons during conflict. This article proposes that there exists a power and a legal basis for armed groups to intern persons for imperative security reasons while engaged in armed conflict. It is suggested that this authorisation exists in the frameworks of both international humanitarian law and international human rights law, as it does for states engaged in such conflicts. It is proposed that such power and legal basis are particularly strong for armed groups in control of territory, and can be gleaned from certain customary law claims, treaty law, as well as some case law on international humanitarian law and human rights. Certain case law of the European Court of Human Rights on detention by de facto non-state entities conceivably reflects a change in traditional thinking on ‘legal’ detention by armed groups.

scholarly journals RELEVANSI KONSEP NEGARA HUKUM PANCASILA DENGAN WELFARE STATE DALAM IMPLEMENTASINYA DENGAN PELAYANAN PUBLIK DI INDONESIA

2017 ◽  
Vol 6 (1) ◽  
pp. 1
Author(s):  
I Ketut Cahyadi Putra
Keyword(s):  
Human Rights ◽  
Social Justice ◽  
Welfare State ◽  
The State ◽  
Customary Law ◽  
Public Welfare ◽  
Basic Formula ◽  
State Administration ◽  
Protection Of Human Rights ◽  
The Republic

The State of Pancasila Law essentially stems from the principle of kinship, deliberation of consensus based on customary law, and protection of human rights with the principle of balance between the rights and obligations and the function of the law of auxiliary. As contained in the Fifth Precept of Pancasila that is social justice for all Indonesian people, and the opening of the 1945 Constitution of the Republic of Indonesia related to the phrase "advancing public welfare" is the basic formula of welfare state ideology then manifested into the constitution of the state of Indonesia to be made Guidance of nation life and state administration. Negara Hukum Pancasila esensinya berpangkal pada asas kekeluargaan, musyawarah mufakat berlandaskan hukum adat, dan perlindungan hak asasi manusia dengan prinsip keseimbangan antara hak dan kewajiban dan fungsi hukum pengayoman. Sebagaimana yang terkandung dalam Sila Kelima Pancasila yaitu keadilan sosial bagi seluruh rakyat Indonesia, dan pembukaan Undang-Undang Dasar Negara Republik Indonesia Tahun 1945 terkait frase “memajukan kesejahteraan umum” merupakan rumusan dasar ideologi welfare state kemudian dimanifestasikan ke dalam batang tubuh konstitusi negara Indonesia untuk dijadikan pedoman hidup berbangsa dan penyelenggaraan kenegaraan.

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