Showing papers on "International human rights law published in 2020"

The United Nations and Human Rights: A Critical Appraisal

Abstract: Human rights remain a dominant and ever-present concern of the international community in the 1990s. The United Nations is the central focus of these concerns, and this book examines the functions, procedures, and performance of each of the major UN bodies dealing with human rights. It looks at the relationship between the various organs and - with the 50th anniversary of the United Nations and its Charter falling in 1995 - the success of each organ and the potential for major reforms and restructuring. This book should be of interest to: scholars and postgraduate students of international law; international relations; and human rights law; human rights activists and political scientists; diplomats; lawyers; and government representatives attached to human rights organizations.

Human rights for the 21st century : sovereignty, civil society, culture

Abstract: A new moral, ethical, and legal framework is needed for international human rights law. Never in human history has there been such an elaborate international system for human rights, yet from massive disasters, such as the Darfur genocide, to everyday tragedies, such as female genital mutilation, human rights abuses continue at an alarming rate. As the world population increases and global trade brings new wealth as well as new problems, international law can and should respond better to those who live in fear of violence, neglect, or harm. Modern critiques global human rights fall into three categories: sovereignty, culture, and civil society. These are not new problems, but have long been debated as part of the legal philosophical tradition. Taking lessons from tradition and recasting them in contemporary light, Helen Stacy proposes new approaches to fill the gaps in current approaches: relational sovereignty, reciprocal adjudication, and regional human rights. She forcefully argues that law and courts must play a vital role in forging a better human rights vision in the future.

Regarding Groundwater and Drinking Water Access through A Human Rights Lens: Self-Supply as A Norm

Abstract: Globally, some 2.5 billion people depend solely on groundwater to satisfy their daily drinking water needs. The reliance on this resource and its centrality to realize the human right to ‘safe’ drinking water has increased manifold, but this is yet to be fully acknowledged globally or by governments and political leaders at the national level. This paper analyses the interface of international human rights law, as corresponding to the obligations and responsibilities of different actors, regarding groundwater resources planning, management and protection. Drawing on the literature, we discuss the State’s duties to respect, protect and fulfil this right especially in relation to the freedom of end-users to self-supply from groundwater sources; the training and regulation of non-State service providers including drillers and private vendors; and health and safety concerns. Interpreting the State’s duty to ‘fulfil’ through direct water service provision ‘as a last resort’, this paper suggests that self-provision is the original norm for enjoying the right to water. This has significant implications for the State’s role in raising awareness concerning point source protection and aquifer recharge for water resources management and in decisions concerning water allocation. By ignoring self-provision, which is primarily from groundwater, the State is not only missing a tremendous opportunity but is jeopardizing the water security of future generations.

Values in translation : human rights and the culture of the World Bank

Abstract: The World Bank is the largest lender to developing countries, making loans worth over $20 billion per year to finance development projects around the globe. To guide its investments, the Bank has adopted a number of social and environmental policies, yet it has never instituted any overarching policy on human rights. Despite the potential human rights impact of Bank projects-the forced displacement of indigenous peoples resulting from a Bank-financed dam project, for example-the issue of human rights remains marginal in the Bank's operational practices.Values in Translation analyzes the organizational culture of the World Bank and addresses the question of why it has not adopted a human rights framework. Academics and social advocates have typically focused on legal restrictions in the Bank's Articles of Agreement. This work's anthropological analysis sheds light on internal obstacles including the employee incentive system and a clash of expertise between lawyers and economists over how to define human rights and justify their relevance to the Bank's mission.

COVID-19 pandemic and derogation to human rights

Abstract: Under international human rights law, States can limit the exercise of most human rights if it is necessary to protect the rights of others or collective interests. The exceptional circumstances brought by the COVID-19 global pandemic lead to more extensive, on both their scope and their duration, restrictions of human rights than in usual times. This article introduces the States' specific right to derogate to human rights in circumstances of public emergency and the conditions of a legitimate derogation in the context of COVID-19. It argues that States must ensure that the general measures they adopt to face the crisis do not disproportionally harm vulnerable people.

Trans health care from a depathologization and human rights perspective.

Abstract: Trans people are exposed to multiple human right violations in clinical practice and research. From 1975 on, gender transition processes have been classified as a mental disorder in diagnostic classification manuals, a classification that was removed recently from ICD, International Classification of Diseases, and continues in DSM, Diagnostic and Statistical Manual of Mental Disorders. Trans people in different world regions are forced to accept psychiatric diagnoses and assessment in order to get access to trans health care, subject to reparative therapies and exposed to transphobic institutional and social discrimination and violence. In many countries, gender identity laws include medical requirements, such as psychiatric diagnosis, hormone treatment, genital surgery, or sterilization. In the scientific literature, a frequent pathologization of trans experiences can be identified, by means of pathologizing conceptualizations, terminologies, visual representations, and practices, as well as ethnocentric biases. Trans activism and scholarship have questioned widely the pathologization of trans people in clinical practice and research. Over the last decade, an international trans depathologization movement emerged, demanding, among other claims, the removal of the diagnostic classification of transexuality as a mental disorder, as well as changes in the health care and legal context. International and regional bodies built up a human rights framework related to sexual, gender and bodily diversity that constitute a relevant reference point for trans depathologization activism. The Yogyakarta Principles, published in 2007 and extended in 2017 by means of the Yogyakarta Principles plus 10, establish an application of international human rights law in relation to sexual orientation, gender expression, gender identity, and sex characteristics. International and regional human rights bodies included demands related to depathologization in their agenda. More recently, advancements towards trans depathologization can be observed in the diagnostic classifications, as well as in the health care and legal context. At the same time, trans people continue being exposed to pathologization and transphobic violence. The Human Rights in Patient Care (HRPC) framework offers a human right-based approach on health care practices. The paper aims at analyzing the shared human rights focus and potential alliances between the trans depathologization perspective and the HRPC framework.

International Law and the abolition of the death penalty

Abstract: Three international law issues relating to capital punishment are addressed in this chapter. The first concerns the tension between the reform of capital punishment, as international legal norms governing its practice become increasingly stringent, and the overall goal of abolition. The second considers the validity of a category of States described as de facto abolitionist. It appears to be a very reliable predictor of permanent abolitionist status. The third examines the threats to the Philippines and Turkey, both of them abolitionist States, to return to capital punishment. Both States are blocked from doing this by treaty law. The situation poses a test for the effectiveness of international human rights law.

A Commentary on the International Covenant on Civil and Political Rights: The UN Human Rights Committee's Monitoring of ICCPR Rights

Abstract: A new and an essential reference work for any international human rights law academic, student or practitioner, A Commentary on the International Covenant on Civil and Political Rights spans all substantive rights of the International Covenant on Civil and Political Rights (ICCPR), approached from the perspective of the ICCPR as an integrated, coherent scheme of rights protection. In detailed coverage of the Human Rights Committee's output when monitoring ICCPR compliance, Paul M. Taylor offers extraordinary access to forty years of its Concluding Observations, Views and General Comments organised thematically. This Commentary is a solid and practical introduction to any and all of the civil and political rights in the ICCPR, and a rare resource explaining the requirements for domestic implementation of ICCPR standards. An indispensable research tool for any serious enquirer into the subject, the Commentary speaks to the accomplishments of the ICCPR in striving for universal human rights standards.

International migration management in the age of artificial intelligence

Abstract: This is the final version. Available on open access from Oxford University Press via the DOI in this record

Law Applicable to Armed Conflict

Abstract: Which law applies to armed conflict? This book investigates the applicability of international humanitarian law and international human rights law to armed conflict situations. The issue is examined by three scholars whose professional, theoretical, and methodological backgrounds and outlooks differ greatly. These multiple perspectives expose the political factors and intellectual styles that influence scholarly approaches and legal answers, and the unique trialogical format encourages its participants to decenter their perspectives. By focussing on the authors' divergence and disagreement, a richer understanding of the law applicable to armed conflict is achieved. The book, firstly, provides a detailed study of the law applicable to armed conflict situations. Secondly, it explores the regimes' interrelation and the legal techniques for their coordination and prevention of potential norm conflicts. Thirdly, the book moves beyond the positive analysis of the law and probes the normative principles that guide the interpretation, application and development of law.

Decriminalization of abortion - A human rights imperative.

Abstract: This chapter reviews the evolving consensus in international human rights law, first supporting the liberalization of criminal abortion laws to improve access to care and now supporting their repeal or decriminalization as a human rights imperative to protect the health, equality, and dignity of people. This consensus is based on human rights standards or the authoritative interpretations of U.N. and regional human rights treaties in general comments and recommendations, individual communications and inquiry reports of treaty monitoring bodies, and in the thematic reports of special rapporteurs and working groups of the U.N. and regional human rights systems. This chapter explores the reach and influence of human rights standards, especially how high courts in many countries reference these standards to hold governments accountable for the reform and repeal of criminal abortion laws.

The formula "freedom of religion or belief" in the laboratory of the European Union

Abstract: This article argues that more and better knowledge about the past and present of the formula ‘freedom of religion or belief’ is likely to result in a stronger consistency between the terminology and the concept, while being conducive to a richer national and international conversation on the protection and promotion of ‘religion or belief’ related rights and freedoms. In the first section (The emergence) the author maps the chronology and context of the emergence of the formula: while confirming the importance of the United Nations, it is emphasized that UN documents were not alone, and were not in isolation. In particular, the importance of the Conference, then Organisation for Security and Cooperation in Europe, and of a general international conversation, accelerated by the adoption in 1998 of the US International Religious Freedom Act, is underlined. In the second section (The features) the most significant features of the formula are identified, and it is suggested that those features should be taken as the reasons why in the last two decades the formula has proved successful at the UN and OSCE level, as well as in the context of the European Union, mainly in its external action. In the third section (The EU laboratory) the formula is mapped in the EU context and the EU framework is interpreted as a laboratory where the formula is received, challenged and reinvented in a variety of ways. In the fourth and final session (The translation) ten sets of questions are offered with respect to the linguistic and legal translation of the formula in EU Member States. If addressed, it is held, those questions might considerably improve knowledge on the formula in both its top-down and bottom-up dynamic unfolding, thus empowering scholars and actors engaged with combining the global power of the formula in English and its variations in different languages and cultures.

Balancing the Minimum Requirement to a Fair Trial in International Criminal Proceedings

Abstract: It is a sacrosanct principle that the accused received a fair trial in criminal proceedings. This article attempts to balance the tenuous relationship between the accused rights to a fair trial with those of other participants from a human right perspective in international criminal trials, drawing from the individual communications to the Human Rights Committee (HRC) and mainly the jurisprudence of the UN ad hoc tribunals in line with the frame of protection laid down in Article 14 paragraph 3 of the International Covenant on Civil and Political Rights (ICCPR) since human rights instruments afford a higher standard of protection. In light of this, it will examine the following: The right of anyone arrested to be promptly brought before a judge; to be informed of the charges; to prepare defence and communicate with counsel; to be tried within a reasonable time; to be present and choose defence; to call and examine witnesses; to have free assistance of an interpreter and the privilege against self-incrimination. This piece seeks to establish a nexus between international human rights law and international criminal law. It is important to point out that several works of literature in this subject have addressed the right of the accused to a fair trial either from a human right perspective in international criminal proceedings or from the prerequisites of international criminal trials.

Advanced Introduction to International Human Rights Law

Abstract: Contents: 1. Concepts and Foundations 2. Historical Overview 3. International Institutions 4. The Law of Human Rights 5. The Rights Guaranteed 6. Obligations 7. Compliance and Monitoring Mechanisms 8. Complaint Procedures 9. Enforcement 10. Stock-taking Index

In Defence of Direct Obligations for Businesses Under International Human Rights Law

Abstract: This article presents three arguments on why businesses have direct obligations under existing international law. Nevertheless, in the present state of international law, the obligations of businesses are limited and wholly dependent on the state’s further action of implementation and enforcement. To reach this conclusion, the article asserts that businesses have partial legal personality in international law; that legal obligations and the enforcement model must be distinguished as two separate issues; and that human rights are requirements of justice that emanate from the dignity of each human person to any social actor, including businesses and other non-state actors. The article attempts to contribute to the debate about a binding instrument on business and human rights and presents an alternative understanding of international law that can assist domestic tribunals in applying international human rights standards to businesses as they carry out activities in their jurisdictions.

Trials and Tribulations: Co-Applicability of IHL and Human Rights in an Age of Adjudication

Abstract: This chapter considers the applicability of international humanitarian law (IHL) and of international human rights law (IHRL) in turn, before exploring their interplay in theory and, most importantly, in practice. It begins by recognising the political, institutional and legal landscape within which the debate on applicability in this book arises and why it matters. These include notoriously selective state practice in cherry picking applicable law to the detriment of the protection of the person, the stark procedural imbalance between IHL and IHRL as regards independent judicial oversight. If, as Richard Baxter noted in the 1970s, ‘the first line of defense against international humanitarian law is to deny that it applies at all,’ a further line of defence against accountability under IHL is to deny and limit the applicability of IHRL. The chapter considers developments in the material, personal and geographic applicability of IHL and IHRL, noting growing overlap. It highlights the role that diverse forms of international adjudication have played in shaping the applicability of each area of law, contributing to the almost universal recognition today of (co)-applicability, and gradually (and still falteringly) probing what this means in concrete situations. The chapter sets out a law and practice-based framework for understanding interplay, which is norm-specific and deeply contextual, explored through the prism of particular issues e.g. lawful detention, targeted killings, cyber operations and investigations in armed conflict. It concludes with the need to embrace the inherent complexity of giving effect to law in armed conflict. If it ‘leans in’ to this complexity, international adjudication has a crucial role to play, alongside other processes, in grappling with the challenges of understanding, clarifying and as appropriate developing the law where it is needed most.

Transnational Corporations and Human Rights: Overcoming Barriers to Judicial Remedy

Abstract: The number of transnational corporations - including parent companies and subsidiaries - has exploded over the last forty years, which has led to a correlating rise of corporate violations of international human rights and environmental laws, either directly or in conjunction with government security forces, local police, state-run businesses, or other businesses. In this work, Gwynne Skinner details the harms of business-related human rights violations on local communities and describes the barriers, both functional and institutional, that victims face in seeking remedies. She concludes by offering solutions to these barriers, with a focus on measures designed to improve judicial remedies, which are the heart of international human rights law but often fail to deliver justice to victims. This work should be read by anyone concerned with the role of corporations in our increasingly globalized society.

Divisions over Distinctions in Wartime International Law

Abstract: Under what conditions International Human Rights Law (IHRL) applies in wartime? Who is a combatant, and who is a non-combatant, given that International Humanitarian Law (IHL) sets very different rules for each? When do armed conflicts begin and end, and what are their spatial boundaries, given that IHL only applies to armed conflict? What conditions distinguish international from non-international armed conflict ("IAC" from "NIAC"), given that distinct IHL corpus governs each? What law applies to cross-border fights between non-State and State forces ("transnational wars"): peacetime international law, IAC-law, NIAC-law, or a new IHL altogether? Since the early-2000s, such war-related legal classifications have been evermore, un-resolvability debated. This chapter addresses that classification crisis. It aims to enrich the discourse with the following five provocative thoughts: First, it refutes the received historical account that the current crisis results from the rise of a new kind of war. The attributes of current conflicts are much less novel than assumed. Second, it refutes the accepted (overly) Statist history of IHL, showing that IHL application to NIAC, and even to transnational wars, is much older than widely thought. Third, it shows that current uncertainty is, in part, not a crisis, rather a chronic fact of life, stemming from the inevitable nature of ‘law’ and of ‘war’. Moreover, the chapter presents a recently neglected IHL norm–The Adaptation Approach–that has long aided IHL in addressing such uncertainty. Four, it reveals the main cause for the current actual legal crisis: for two decades, a struggle has been waging in IHL, driven by the competing attempts of hardline-Statists and hardline-IHRL-advocates to take sole control over its shaping. Current escalating uncertainty primarily stems from these attempts and from the clash between them. Five, the chapter responds by rebutting the fundamental premise of each hardline faction: (a) It shows that the Hardline-Statist drive to loosen wartime legal constraints gravely underrates existing IHL. (b) It argues that IHRL-advocates over-estimate the benefits of extensive wartime application of IHRL; counter-intuitively, the co-application of IHRL and IHL diminishes (rather than increases) civilian protection. The chapter, thus, invites us to radically question the role IHRL should play in armed conflict.

Intersectionality and disability in international human rights law

Abstract: This article addresses the question of intersectionality in the field of international human rights law. While in this field much attention has been given to gender and race, here it is extended to...

Populism and International Human Rights Law Institutions

Abstract: Confronting hostile governments is nothing new for international human rights courts, treaty bodies, and other monitoring mechanisms Yet there is a growing sense that the recent turn to populism poses a new type of threat that international human rights law (IHRL) institutions are ill equipped to meet This chapter begins by identifying the facilitating conditions that have, until recently, supported the international human rights system It then assesses the distinctive challenges that populism poses to IHRL institutions Turning from diagnosis to prescription, the chapter reviews a range of legal and political tools that might be deployed to address those challenges and explores their potential efficacy and risks The chapter’s final section argues that IHRL institutions should adopt four survival strategies for an age of populism—playing a long game, circumspection in interpretation, publicity and outreach, and creating windows of opportunity for supporters to mobilize

Social Institutions and International Human Rights Law Implementation

Abstract: Having articulated numerous human rights norms and standards in international treaties, the pressing challenge today is their realisation in States' parties around the world. Domestic implementation has proven a difficult task for national authorities as well as international supervisory bodies. This book examines the traditional State-centric and legalistic approach to implementation, critiquing its limited efficacy in practice and failure to connect with local cultures. The book therefore explores the permissibility of other measures of implementation, and advocates more culturally sensitive approaches involving social institutions. Through an interdisciplinary case study of Islam in Indonesia, the book demonstrates the power of social institutions like religion to promote rights compliant positions and behaviours. Like the preamble of the 1948 Universal Declaration of Human Rights, the book reiterates the role not just of the State but indeed 'every organ of society' in realising rights.

Disability and vulnerability: a human rights reading of the responsive state

Abstract: Universal human rights of all are complemented with particular, targeted protection of some, especially those that traditionally have been left behind. By juxtaposing the ideas of universality and ...

International Law Perspectives on Cruise Ships and COVID-19

Abstract: Cruise ships have contributed to the spread of COVID-19 around the world and State responses to the pandemic have needed to account for the presence of these ships in their ports and the medical treatment of both passengers and crew on board This contribution outlines the key bodies of international law that must be brought to bear in deciding on State action in response to cruise ships and their COVID-19 cases: the law of the sea, international health law, shipping conventions and especially treaties protecting the rights of seafarers, international human rights law and laws relating to consular assistance While these laws tend to reinforce each other, it is argued that the need for humanitarian considerations to feature strongly in State decision-making is challenged by systemic weaknesses

Sendai Five Years on: Reflections on the Role of International Law in the Creation and Reduction of Disaster Risk

Abstract: This article offers a critical examination of the position of the Sendai Framework for Disaster Risk Reduction 2015–2030 within international law. It is argued that any interrogation into the relationship between international law and disaster risk reduction (DRR) must begin not with existing DRR laws and policies, but rather with an enquiry into the nature of disaster risk and the role of international law in its creation and reduction. It is demonstrated how, while areas such as international human rights law can be utilized to enforce obligations in support of DRR, other areas—in particular international investment law—actively work to undermine DRR efforts. In order for international law to be a productive tool in the reduction of disaster risk, international lawyers must engage with critical work in disaster studies and explore the role that international law has played, and can play, in creating and addressing hazards, vulnerabilities, and capacities.

Balancing Teacher Power and Children's Rights: Rethinking the Use of Picturebooks in Multicultural Primary Schools in England.

Abstract: This article offers an autoethnographic reconsideration of a primary school teacher’s practice and children’s interpretation of picturebooks in multicultural primary schools in England It considers the balance teachers strike between respecting children’s rights to freedom of thought and expression, and wielding their own power as directors of learning It links key aspects of international human rights law on children to concepts from literacy studies and multicultural children’s literature: representation of minority groups, pictorial interpretation, critical literacy and teacher power It brings out nuanced interpretations of the picturebook The Arrival as a ‘mirror’ for learners from migrant backgrounds This mirror may reflect children’s experiences but also offer a frosted, distorted or blank view where young learners do not empathise with characters We argue that children’s rights within education should include freedom of thought and expression and freedom to interpret literature; teachers should reflect on their intentions when using literature, and not pose barriers to this freedom

Questions on Theory of Law in International Human Rights Law

Abstract: The objective of this paper is to examine some specific question on the theory of law in international human rights law. International human rights law has played an important role in the evolution of International law. There are different ways of approaching and understanding International law, different schools and certain central theoretical questions. This paper tackles theoretical questions within international law in the light of International law of human rights, such as the questions of hierarchy, unity, coherence, structure, time, power, justice and legitimacy. Furthermore, analyse theoretical horizons, like the question evolution/revolution, progression/regression, justiciability, sustainability and efficacity.

AI for humanitarian action: Human rights and ethics

Abstract: Artificial intelligence (AI)-supported systems have transformative applications in the humanitarian sector but they also pose unique risks for human rights, even when used with the best intentions. Drawing from research and expert consultations conducted across the globe in recent years, this paper identifies key points of consensus on how humanitarian practitioners can ensure that AI augments – rather than undermines – human interests while being rights-respecting. Specifically, these consultations emphasized the necessity of an anchoring framework based on international human rights law as an essential baseline for ensuring that human interests are embedded in AI systems. Ethics, in addition, can play a complementary role in filling gaps and elevating standards above the minimum requirements of international human rights law. This paper summarizes the advantages of this framework, while also identifying specific tools and best practices that either already exist and can be adapted to the AI context, or that need to be created, in order to operationalize this human rights framework. As the COVID crisis has laid bare, AI will increasingly shape the global response to the world's toughest problems, especially in the development and humanitarian sector. To ensure that AI tools enable human progress and contribute to achieving the Sustainable Development Goals, humanitarian actors need to be proactive and inclusive in developing tools, policies and accountability mechanisms that protect human rights.