Showing papers on "International human rights law published in 1992"

The European Court of Justice: taking rights seriously?

Abstract: It is easily assumed that the use of the language of fundamental rights protection by the European Court of Justice translates directly into an extension of the actual protection of those rights within the European Community. It is the purpose of this paper to question that assumption. Whilst it would appear to be widely accepted that the initial motivation for the adoption of the terminology of fundamental rights by the European Court of Justice was a desire to defend the supremacy of Community law over national law, a close analysis of certain recent cases in the European Court shows that the court has begun to use rights talk in a different way.

Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in a New South African Constitution

Abstract: The purpose of this article is to bring to international attention and defend the African National Congress's decision to attempt to include certain social rights in a new South African constitution. The authors hope to engender international academic and political debate concerning the limits and possibilities of entrenching social rights in a new South African constitution, as well as to offer thoughts that might be of broader relevance to other societies adopting or renewing their constitutions. Part I outlines two types of arguments against the constitutional justiciability of social rights. Part II addresses the legitimacy of social rights and contends that the exclusion of justiciable social rights from a South African constitution would threaten the realization of social justice in South Africa because of law's constitutive influence on society's and individuals' self-understandings. In Part III, the authors scrutinize and find wanting claims of institutional incompetence, notably claims which deny the capability of courts to impose positive obligations on governments and claims which allege that social rights are too imprecise for adjudication. Part IV discusses the "interdependence" of civil and political rights with social rights and argues that such interdependence helps to challenge further claims that judicial bodies can neither legitimately nor competently scrutinize social rights as a matter of constitutional review. Part V then shifts from international law to comparative constitutional law and invokes emergent jurisprudence of the Supreme Court of India, which is infused with the principle of interdependence, to tell a story of the rhetorical possibilities of constitutionalized social rights. Part VI offers some concrete textual and institutional strategies to minimize the antidemocratic potential of judicial review.

The Ideologies of children's rights

Abstract: Part I: Theory. Introduction: Rights, Ideology and Children. Children's Rights: The Theoretical Underpinning of the 'Best Interests of the Child'. The Limits of Children's Rights. The Rights of Children are Universal: The Perspective of the UN Convention on the Rights of the Child. The Relevance of Theories of Natural Law and Legal Positivism. The UN Convention and the Network of International Human Rights Protection by the UN. Changes in Child Images: Reflections in National and International Rules and Jurisdiction in Europe. Cultural and Regional Pluralism in the Drafting of the Convention on the Rights of the Child. Rights of Children in a Changing World. The Concept of the 'Best Interest' in Terms of the Convention on the Rights of the Child. Attitudes to Children -- Their Consequences for Work for Children. Theory and Practice. The Role of Children in the Making of Decisions which Affect Them. What Children's Rights Mean to Children: Children's Own Views. How do Children Perceive their Rights? An Outline for Research and Professional Discussion. Part II: Application. The Ideology of Liberal Individualism, Welfare Rights and the Right to Education. The Child's Right to Health. Reconstructing Child Abuse: Western Definition and Non-Western Experience. Juvenile Justice Policy: Mapping the Criteria. The Meaning of Human Rights for Children. Child Protection in Germany. The Development of Equitable Remedies for Children with Disabilities Cocaine's Smallest Victims: Advocacy on Behalf of Drug-Exposed Infants. Little Foreign Bodies: International Dimensions of Child Prostitution. The Protection of Children in Armed Conflict. Towards a More Integrated Base for the Children's Rights Movement: Objectives and Outcome of the First International Interdisciplinary Study-Group on Children's Rights. Index.

Greek National Identity: Religious Minorities, Rights, and European Norms

Abstract: The process of Greece's Europeanization, evident in its membership in the European Community and its adherence to the regional human rights instrument, is impeded by its deviance from European norms. This is particularly striking in the area of religious freedom, where Greece, in violation of the European Convention for the Protection of Human Rights and Fundamental Freedoms, restricts the rights of religious minorities. The constitutional prohibition of proselytism and a host of administrative, legislative, and judicial acts severely limit religious practice, especially that of Jehovah's Witnesses and Evangelicals. The difficulty Greece confronts in implementing religious freedom stems from its conception of Greekness, which is understood as an organic whole in which Greek Orthodoxy, the ethnos, and the state are a unity. This is buttressed, in turn, by a judicial philosophy of legal positivism. Violations of religious rights are dramatic; in addition, the ideological and legal foundations exist for potential restrictions of numerous individual rights. If Greece is to integrate into the European Community, a transformation of the notion of Greekness is essential.

The African Commission on Human and Peoples' Rights: A Five-Year Report and Assessment

Abstract: The Organization of African States (OAU) was conceived and born in 1963 in a context of nearly untrammeled state sovereignty, in which heads of states sought sedulously to safeguard the independence so recently won. Only passing mention was made in the OAU Charter of human rights. Eighteen years later, however, following a period of widely decried abuses of basic liberties in several member states, the OAU's policy-making body adopted the African Charter on Human and Peoples' Rights (the Banjul Charter).' In late 1987 the African Commission on Human and Peoples' Rights, created by the Banjul Charter, started to function. As the body nears its fifth anniversary, a preliminary report and assessment are in order. The armatures of human rights protections provided domestically by most African states, and regionally by the Banjul Charter, are far weaker than in Western European states, and significantly weaker than in most Western Hemisphere countries, that have ratified their respective regional conventions. That Africa has a Commission at all, therefore, may be somewhat surprising; that it confronts severe limitations on its effectiveness less so. Considering the special conditions of Africa-the lengthy, searing acquaintance with colonialism; the weakly established, often insecure organs of state government and restricted government capabilities; the perilous economic situation, particularly in the late 1980s; the heavy burdens that the poorly funded OAU Secretariat carries-the Commission has had to start its activities with several strikes against it. Furthermore, the abilities of the

Human Rights in States of Emergency in International Law

Abstract: Part 1 Human rights standards in states of emergency in the context of multilateral treaties - the legal regime of the derogation clause: the principle of exceptional threat - the existence of the emergency as envisaged in the three main multilateral treaties the principles of proclamation of the state of emergency the principle of notification the principle of non-derogability of fundamental rights the principle of proportionality the principle of non-discrimination the principle of consistency. Part 2 Human rights in states of emergency in general international law: customary international law and human rights - two preliminary questions first line of inquiry - human rights in emergencies, the doctrine of state necessity second line of inquiry - the emergence of some of the principles of the derogation clause as principles of general international law.

The European Court of Justice: Taking Rights Seriously?

Abstract: It is easily assumed that the use of the language of fundamental rights protection by the European Court of Justice translates directly into an extension of the actual protection of those rights within the European Community. It is the purpose of this paper to question that assumption. Whilst it would appear to be widely accepted that the initial motivation for the adoption of the terminology of fundamental rights by the European Court of Justice was a desire to defend the supremacy of Community law over national law, a close analysis of certain recent cases in the European Court shows that the court has begun to use rights talk in a different way.

Right to life of the unborn v promotion of trade in services : the European Court of Justice and the normative shaping of the European Union

Abstract: This Protocol, which by virtue of Article 239 EEC will have the same effect as a Treaty Article, exists to protect the Irish constitutional right to life of the unborn, not from the written provisions of the Treaty on European Union or feared secondary legislation thereunder, but from the jurisprudence of the European Court of Justice. This article argues that the Court has, by reference to its economic and federal teleology of Community objectives, evolved certain legal techniques applicable to human rights which will point the Community in new normative directions. These techniques, supported by the doctrines of supremacy over, and direct effect in, national law,2 are brought into play when national constitutional rights which the Court does not adopt as its own3 are held to have economic implications. The techniques are used to control the three dimensions of conflict between state and federal competencies, between a moral and an economic ideal of what is fundamental (and hence different ideas of fundamental rights), and between different legal doctrines of justification. The techniques are as follows. First, the definition of an act as a service solely on account of its economic significance, regardless of the unconstitutional and criminal nature of that act in national law. Second, the prohibition as a matter of principle of all impediments to the freedom of services, even if caused by disparities between national constitutional rights. Third, the use of fundamental rights to expand the free movement of services and to incorporate thereby supreme rights, based on different values and supported by the doctrines of supremacy and direct effect, for market participants. Fourth, the testing of national constitutional rights as derogations from economic principle. The article questions the desirability of th.ese techniques and also the general solution provided by the Treaty on European Union as well as the particular response to the Article 40.3.3 problem in the Protocol and the recent Declaration on the Protocol instigated by the Irish government. An alternative is proposed in the form of a teleological jurisdictional rule. This article focuses on the structure of argument in Society for the Protection of the Unborn Child v Grogan in the light of the Court's supporting decisions and

The Civil Rights Act of 1991.

Abstract: EDITOR'S NOTE: The text of the Civil Rights Act of 1991 (Pub. L. 102-166), as enacted on November 21, 1991, appears below with the following modifications: 1. The text of the sections of the CRA that amend the laws enforced by EEOC (i.e., Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act of 1990) is not printed below. Instead, these amendments are printed elsewhere in this publication. 2. The following portions of the CRA that are not enforced by EEOC are referenced, but not reprinted here: • Section 117 (coverage of the U.S. House of Representatives and agencies of the Legislative Branch); • Title II (The Glass Ceiling Act); and • Portions of Title III (Establishing the Office of Senate Fair Employment Practices). 3. Title V, which amends the Civil War Sites Study Act of 1990 (Pub. L. 101-628) is not reprinted here. 4. Cross references to the U.S. Code, where applicable, appear in italics following each section heading. Editor's notes also appear in italics.

Environmental change and international law: new challenges and dimensions.

Abstract: Issues in international environmental law International human rights law and environmental problems Future directions in international regimes Appendices.

Human rights in cross-cultural perspectives : a quest for consensus

Abstract: The essays in this collection examine particular cultural and ideological traditions and reinterpretations which aim to assist in overcoming the tensions and conflicts between those traditions and current international standards of human rights. Other essays present the views and priorities of specific indigenous perspectives in relation to national and international human rights regimes. The text is designed to enhance the credibility of national and international human rights standards by developing more effective approaches to their promotion and implementation.

Constitutionalism, Majoritarian Democracy and Socio-Economic Rights

Abstract: (1992). Constitutionalism, Majoritarian Democracy and Socio-Economic Rights. South African Journal on Human Rights: Vol. 8, No. 4, pp. 451-463.

In a Time of Trouble: Law and Liberty in South Africa's State of Emergency

Abstract: Part 1 South Africa internal security law - constitutional framework and statutory designs: Parliamentary supremacy and the constricted field of judicial review of legislation South African internal security statutes. Part 2 Hurley's case and the doctrinal bases for human rights jurisprudence in South Africa: Hurley and the character of legislative intention in South Africa the interpretation of intention. Part 3 The Rabie Court and the Judicial Protection of the State of Emergency: the Rabie era the rights denied. Part 4 The Rabie Court's protection of human rights: the rights not lost the rights protected the demands of the emegency against the claims of human rights. Part 5 The Corbett Court and the emergency: the change in the Court's decisions the common doctrinal ground of the Rabie and Corbett Courts the immediate causes of the change in the Court's approach. Part 6 Explaining the Court's performance - visions of law in South Africa: the Rabie Court - adherence to law in South African culture the Corbett Court - the Bar and the Judiciary as carriers of a human rights tradition. Part 7 Lawyers against the emergency: lawyers' moral responsibility for their work the value of emergency law work.

Rights in Twentieth-Century Constitutions

Abstract: Although this symposium has treated the subject of the Bill of Rights in the welfare state primarily within the context of American constitutional law, it is instructive and appropriate to compare the American experience with the experiences of other liberal democratic welfare states. Indeed, if a symposium on this subject had been held in 1991 at a university anywhere except in the United States, its approach almost certainly would have been cross-national from beginning to end. Most of the participants, no doubt, would have been invited to explore how some countries-for example, Canada, Denmark, France, Germany, Italy, Japan, Norway, and Sweden-have managed, more or less successfully, to remain simultaneously committed to political and civil rights, a well-developed welfare state, and a system of constitutional control of legislative and executive action. There would probably have been a session or two devoted to the transition of the East European countries from socialism to constitutional social democracy. Another major topic would have been how commitments made in international human rights instruments have affected national legal systems. Finally, in all likelihood, there would have been sessions devoted to two special cases: first, England, a welfare state without a system of judicial review or a bill of rights (in the modern sense); and second, the United States, a country with a venerable rights tradition and a strong system of judicial review, but with a minimalist welfare state. In this article, I cannot present such an extended comparative survey. My goal is rather to advance the proposition that American thinking about rights and welfare would benefit from examining the experiences of other liberal democracies,' and to speculate about the insights that might emerge from such a comparative

The Law Is a Good Thing (Psychology Is, Too) Human Rights in Psychological Jurisprudence*

Abstract: Psycholegal studies have been hampered by the lack of a theory to guide the choice of topics for research. Both judicial decision making and psychological research would be enhanced by emphasis on subjective experience in determining the scope of fundamental rights and fostering a legal system consonant with human dignity and responsive to social reality. International human rights law is presented as an example of the feasibility and utility of psychological jurisprudence.

The New Basic Laws on Human Rights: A Mini-Revolution in Israeli Constitutional Law

Abstract: Until the recent passage of the two basic laws on civil rights, the Basic Law: Freedom of Occupation and the Basic Law: Human Dignity and Freedom, Israel had no bill of rights. Pursuant to the 1951 Harari Resolution, according to which Israel's formal constitution would be drawn up in a piecemeal fashion by a series of basic laws, basic laws were enacted covering virtually all aspects of Israel's constitutional system. However, these basic laws did not include a basic law on civil liberties or human rights. The absence of a bill of rights was not for want of trying. Numerous attempts were made over the years by members of the Knesset, the Knesset Constitution and Law Committee and the Minister of Justice to further passage of a bill of rights. In recent years the most adamant opposition to a general bill of rights came from the religious parties, who have a principled objection to judicial review. This objection rests on the not-unfounded conviction that a bill of rights will enable the Supreme Court to exercise judicial review over legislation that was passed because of the strategic position of the religious parties in Israel's coalition system, but that is anathema to the secular majority in the country. The main examples of such legislation are the laws regarding religious marriage and Sabbath observance. The two basic laws enacted in the last session of the outgoing Knesset grew out of the realization that even it were impossible, for political reasons, to enact a general bill of rights it might be possible to enact a bill that deals with those rights that are less controversial from the political point of view. Thus it was that the first basic law on civil rights passed in Israel deals with a right that is not specifically mentioned in other constitutions and human rights documents, namely what has been called "freedom of occupation", i.e., the freedom to follow the vocation of one's choosing. The second law deals with a whole range of rights under the general rubric of "human dignity and freedom".

Individual Responsibility in International Law for Serious Human Rights Violations

Abstract: Abbreviations. Table of Treaties, Table of Cases. Resolutions of UN General Assembly. I. Introduction. II. Individual Responsibility in Positive Laws of War. III. Individual Responsibility in International Human Rights Law. IV. Patterns of Implementation. V. Codification of International Responsibility. VI. The Position of the Individual in International Law. VII. Emergence of a General Rule of Individual Responsibility for Serious Human Rights Violations. Annex: Draft Code of Crimes against the Peace and Security of Mankind. Bibliography. Index.

The Other Side of Right: Private Duties Under Human Rights Law

Abstract: This short article addresses private duties under human rights law – duties that appear expressly and by implication in various human rights instruments such as the Universal Declaration of Human Rights, the American Declaration of the Rights and Duties of Man, the International Covenant on Civil and Political Rights, and the African Charter on Human and Peoples’ Rights. Private duties under international criminal law are also addressed.

Human rights and social policy in the 21st century: A history of the idea of human rights and comparison of the United Nations Universal Declaration of Human Rights with United States federal and state constitutions.

Abstract: This volume traces the history and practice of human rights from ancient times until the present. It identifies major sources and stages of this quest, which has culminated in this century in the unopposed adoption, by the United Nation, of a Universal Declaration of Human Rights. This Declaration is gradually being perceived as customary international law and as a standard by which the policies and practices of different societies ought to be guided and judged. An important aspect of Dr Wronka's study is a comparison of human rights as defined by the United Declaration on the one hand, and by the Constitutions of the United States and its 50 States on the other. This comparison reveals significant gaps between the standards of the Universal Declaration and those of the American Constitution, and the policies and practices based on them.

In Defence of Moral Rights

Abstract: Out of a large number of objections that philosophers have made to what I call 'moral rights', I address only one in this lecture, and attempt to rebut it, and thus in a sense come to the defence of moral rights. But there are many other objections that are frequently made that I cannot even consider in this limited time, and for all we know, some of them may be cogent, even decisive objections. So the theory of moral rights may yet be untenable even if everything I say in this lecture is true. I do not claim to have proved that the theory is correct, or to have rebutted all the important objections to it. I attempt to make only a small point, namely that one kind of objection can be answered even if the others cannot. That is a little point, to be sure, but in philosophy the so-called big points are often just such little points strung together.