Showing papers in "Human Rights Law Review in 2006"

The Bosphorus ruling of the European Court of Human Rights: fundamental rights and blurred boundaries in Europe

Abstract: The recent case of Bosphorus Airlines v Ireland provided the European Court of Human Rights (ECtHR) with an opportunity to refine further its relationship with the EU. In particular, the ECtHR was called upon to clarify when States could be held responsible for actions taken under the banner of the EU. This article examines the status quo prior to the Bosphorus judgment, and then scrutinises the judgment itself, focusing particularly on the use and scope of the doctrine of 'equivalent protection' to determine State responsibility. The doctrine as outlined in Bosphorus is applied to some likely scenarios involving EU action and its relative merits and disadvantages are discussed. The article also briefly addresses the further global implications of the judgment, namely for the legal accountability of the UN Security Council and the ongoing issue of responsibility of international organisations under international law.

The UN Human Rights Norms for Corporations: The Private Implications of Public International Law

Abstract: Though many years in the making, the UN Human Rights Norms for Corporations only registered on the radars of most states, corporations and civil society organisations in August 2003 when they began to move up the ladder of the United Nation’s policy-making processes. Since then they have been subject to intense, and sometimes intemperate, debate, scrutiny and controversy. A particular legal feature of the deliberations has been the focus on the closely related questions of the legal standing of the Norms in their present format (namely, an imperfect draft, and therefore, of no direct legal force), and what they might become (possiblycthough not likely soonca treaty that speaks to corporations but binds states). A potent mix of distrust and suspicion, vested interests, politics and economics has given rise to a great deal of grand-standing *Professor, Chair in Human Rights Law, University of Sydney, Australia (davidk@law.usyd.edu.au). **Barrister, Cloisters Chambers, London (rch@cloisters.com). Research for this article was enabled through a three-year Linkage Grant from the Australian Research Council for a project researching human rights and multinational corporations. For details and the outcome of the project, see Castan Centre for Human Rights Law,‘Multinational Corporations and Human Rights’ (Projects) available at: http://www.law.monash.edu.au/castancentre/projects/mchr/. Themes in, and earlier versions of, the article were aired at a US Congressional Human Rights Caucus hearing in November 2004; at a session on the Norms at the Business for Social Responsibility Conference in New York, November 2004; and at a number of Human Rights and Global Economy graduate seminars at Monash University and Sydney University Law Schools and at Washington College of Law, American University in 2004 and 2005. In addition to the two anonymous referees of the article and the editorial board of the Human Rights Law Review, the authors would like especially to thank Chris Avery, Eric Biel, Scott Jerbi, Sarah Joseph, Richard Meeran, Justine Nolan, John Ruggie, John Sherman, Sune Skadegard Thorsen and Natalie Zerial for their insightful constructive criticisms, comments and suggestions, and also the last-named for her peerless editorial and research assistance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Human Rights Law Review (2006),1of 51 Human Rights Law Review Advance Access published October 28, 2006

The European Union and Human Rights: Towards A Post-National Human Rights Institution?

Abstract: There is growing evidence that the European Union (EU) is becoming more There is growing evidence that the European Union (EU) is becoming more involved in human rights protection and has the capacity to turn into an unprecedented post-national human rights protection institution. Based on that evidence, this article suggests different arguments in favour of a further development in this direction. These arguments stem not only from a general global justice approach to post-national institutions\textquoteright responsibilities, but also from the concept of human rights itself and the specific needs of human rights protection at the post-national level. The EU's institutional framework presents advantages that fit the general criteria of institutional design in the human rights context. Of course, many doubts and critiques may be raised against an entity which started primarily as a functional and economic institution, and important reforms, some of which are ventured in the present article, are still needed to get the EU closer to this institutional ideal. More generally, the article emphasises the unique example and precedent the EU may constitute for normative institutional thinking about global justice at the post-national level.

The Evolution of International Indigenous Rights in the Inter-American Human Rights System

Abstract: Indigenous communities in the Western hemisphere are increasingly relying on international law and international fora for enforcement of their human rights. When there are no domestic laws that recognise indigenous rights, or such laws exist but there is no political will to enforce them, indigenous peoples in the Americas may turn to the Inter-American human rights system. Consequently, the InterAmerican Court of Human Rights and the Inter-American Commission on Human Rights have developed a progressive case law in this area. In 2005 and 2006, the Inter-American Court decided seminal indigenous ancestral land rights cases and a political rights case. This article analyses these cases and the previous jurisprudence and decisions on indigenous rights in the Inter-American system.

Evaluating the Human Rights Performance of Legislatures

Abstract: Despite increased recognition of the role of legislatures in protecting human rights, particularly through their scrutiny of proposed legislation, there has been little detailed consideration of how best to evaluate their performance in discharging this role. This article aims to fill this significant gap by outlining and defending a methodology for carrying out such an evaluation. Our objective is to provide a rich and valid account of the performance of legislatures by identifying strengths and weaknesses of existing legislative institutions and processes. Such a process can also inform recommendations as to how institutions and processes, in particular legislatures, might be improved. © 2006 Oxford University Press.