Expert Opinion on the Reform of the Common European Asylum System for the German Federal Ministry of the Interior: Minimum Requirements Under EU Primary Law and International Refugee Law for Rules in Secondary Legislation on the Rejection of Applications for Asylum as Inadmissible with a View to Protection and Housing Options in Third Countries (Transit and Other Countries) or in

The nature of the relationship between international humanitarian law and international human rights law remains a vexed one. In recent years, human rights lawyers and activists have sought to apply human rights norms to military conduct in international and internal conflicts, and during belligerent occupations. With varying degrees of success, complainants have brought their cases before international tribunals, and to national courts able to apply international human rights standards. This development has occurred largely because forums exist to hear human rights claims, whereas they do not for persons claiming individual redress for violations of international humanitarian law. However, human rights norms have also been seen as more restrictive: as placing greater constraints on States' freedom to conduct hostilities, preventively detain, and administer occupied territories. It is for this reason that some States have resisted attempts to extend the reach of international human rights law into areas traditionally seen as governed by international humanitarian law. This chapter argues that principles have now developed to govern the relationship between the two bodies of law. However, their application to different situations remains a work-in-progress and controversies remain. In particular, despite valient efforts, it remains unclear what what happens in situations where the two bodies of law cannot be read together? There are only few rules of norm-conflict resolution in international law, all of which have limited application in the context of the relationship between international humanitarian law and human rights law. Most inconsistencies between the rules of the two bodies of law are not true conflicts at all, as they do not require States to conduct themselves in different ways. It is simply that international humanitarian law is the more permissive system. In such situations, to argue that the two bodies of law are ‘complementary and mutually reinforcing’ is to do little more than issue a policy prescription. In reality, in such cases States have to make a choice as regards which rules they wish to comply (a choice which is likely to be a political one) and take the consequences. There are fundamental incompatibilities between international humanitarian law and human rights law, not only as regards discrete rules but in their theoretical bases. Attempts can be made to reconcile them, to avoid conflicts, but they can only be provisional and on a case-by-case basis. The legal tools available cannot always provide an answer. Absent legislation, conflicts will remain. And in a world of States with differing interests and values, the adoption of new rules governing armed conflict and belligerent occupation will be difficult, if not impossible. One difference between the two bodies of rules, in particular, remains fundamental. Despite developments over past decades which are said to indicate a ‘humanization of humanitarian law’, international humanitarian law, in contrast to human rights law, is not based on an individual rights paradigm. It is this difference, even excluding the differences in the substantive protections accorded individuals under the two bodies of law, which will ensure that individuals continue to bring complaints regarding their treatment in situations of armed conflict before human rights bodies. And even if human rights bodies take the view that States’ human rights obligations in situations of armed conflict are to be interpreted using the yardstick of international humanitarian law, their interpretations of humanitarian law are likely to differ from lawyers advising States’ defence ministries and armed forces, who are likely to continue to be unhappy with such trespasses into what they see as their chasse gardee.

Globalizing What:Education as a Human Right or as a Traded Service? Katarina Tomasevski Introduction Globalization tends to be described as an extralegal phenomenon.1 This image does not apply to education for which there is international law, albeit composed of two parallel and disconnected legal regimes. International human rights law defines education as a human right; international trade law defines it as a service. 2 International human rights law is older than the law on trade in services, and domestic educational laws tend to be even older.3 Most of these define education [End Page 1] as compulsory and also as a right.4 Accordingly, they specify the corresponding governmental obligations. Large budgetary allocations for education reflect the legally defined extensive role of the state in education,5 and teachers are often the largest segments of the civil service.6 Against that role of the state in providing and/or financing education, globalization (defined as interaction across national borders unmediated by the state) fosters disengagement from education. The key facet of globalization, liberalization, is predicated on increasing the privatization of education,7 which demands decreased involvement of the state. In the 1990s, [End Page 2] this facet was built into the international law on trade in services, resulting in two conflicting legal regimes for education. International human rights law mandates state intervention, requiring it to ensure, at least, free and compulsory education for all children. International law on trade in services legitimates the sale and purchase of education, excluding those who are unable to purchase it, thereby jeopardizing the key human rights requirements that at least primary education should be free and compulsory. This article examines the practice of states in accommodating this legal duality of education. It focuses on the developing regions and countries in transition8 because the poverty of families, communities, and countries precludes access to education for many, if not most, unless education is free, namely provided or financed by the state. Its point of departure is international human rights law, which defines human rights—including the right to education—as universal. Its translation into reality would entail a minimum entitlement to education throughout the world, to be secured through international cooperation. Thereby governments would collectively comply with their human rights obligations. Consequently, globalization of education would be guided by a universal human rights obligation to ensure that education is free and compulsory for all school-age children in the world. However, the creation of international human rights law during the Cold War divided human rights into civil and political on the one hand, and economic, social, and cultural, on the other hand. Although education belongs in both categories, it also has been categorized as an economic, social, and cultural right. Its civil and political dimensions require respect of freedom; its social and economic dimensions mandate state provision and/or financing of education, while education as a cultural right often necessitates its affirmation as a collective right.9 [End Page 3] For the majority of countries in the world that recognize economic, social, and cultural rights,10 the corresponding human rights obligations presuppose governments' willingness and ability to raise revenue and devote the maximum available resources to human rights. An important aim is to ensure that education is free at the point of use, at least for compulsory education. Therein originates the conflict of laws. While international human rights law recognizes every child's entitlement to free education, international trade law makes access to education dependent on the ability to pay.11 Free trade does not have safeguards for the rights of the poor, least of all, for poor children. Hence, state intervention to safeguard free education for the millions of poor children necessitates corrective steps for the free market in education, facilitated by international cooperation. However, global development finance policies work in the opposite direction, as does trade in educational services.12 These counterpoised pressures, especially upon the governments of poor, impoverished, or indebted countries, result in an increasing incidence of for-fee rather than free education. [End Page 4] The phenomenon is not new; it was marked memorably by the United Nations International Children's Emergency Fund's (UNICEF) "Adjustment with a Human...

Economic Sanctions Against Human Rights Violations

The Nuremberg tribunal was the expression and the beginning of states' recognition of their duty to prosecute genocide and other gross human rights violations. It was a first step towards fulfillin...

Environmental factors impact on the enjoyment of human rights in a number of ways. However, the exact nature of the relationship between the environment and human rights in international human rights law remains unsettled, most notably in relation to the concept of a human right to a good environment. While the idea of a substantive right to an environment of a particular quality has received considerable support, it has yet to be adopted in any international legal instrument and remains the subject of much debate. This thesis interrogates the concept of a right to a good environment from a variety of perspectives to provide a comprehensive analysis of its suitability for inclusion in international human rights law. Given that climate change represents the biggest environmental challenge to have faced the international community, the thesis considers whether the right to a good environment is capable of providing new approaches for addressing the human rights implications of climate change. This thesis analyses the theoretical, legal, practical and political implications of the right to a good environment. It considers the theoretical foundations of human rights to assess whether the right is justifiable. It is concluded that a ‘good environment’ cannot be linked to human dignity, autonomy or interests without relying on rights which are already protected under existing law, such as the rights to health, food and water. It concludes that, without an independent justification, legal recognition of the right would risk undermining the existing human rights framework. The thesis also considers existing human rights approaches to environmental protection and to climate change in particular to determine whether a new right offers any significant practical benefits which might otherwise justify its recognition. The transnational, cumulative and ongoing impacts of climate change create significant challenges for enforcing human rights and it is argued that these effects would be even more problematic in relation to the right to a good environment. Because international legal recognition of new human rights depends on having the support of States, the thesis considers the current attitudes of States towards environmental human rights and human rights approaches to climate change. States are currently reluctant to acknowledge that they owe human rights obligations with respect to climate change and it is argued that they would be particularly unwilling to accept obligations under a new right to a good environment. Without the support of States, there is little likelihood that the right to a good environment would be adopted into international human rights law. The thesis concludes that continued proposals to recognise the right to a good environment in international law should be abandoned. The various theoretical, legal, practical and political considerations examined in the thesis indicate that it is not possible to settle on a definition of the right which would be both practically useful and independently justifiable. Further attention should instead be directed to clarifying the application of existing human rights law to environmental degradation, including the impacts of climate change.

This study undertakes a philosophical examination of the intersection of international criminal law and human rights law, revealing the paradoxical tensions between the pursuit of justice and the protection of human rights. Through a critical analysis of the normative foundations of these two fields, this research discloses the differing ontological and epistemological assumptions underlying international criminal law and human rights law. Employing a qualitative research methodology, this study conducts an in-depth examination of the major international criminal law and human rights law instruments, including the Rome Statute of the International Criminal Court and the Universal Declaration of Human Rights. Additionally, this research undertakes a critical discourse analysis of the jurisprudence of international criminal law and human rights law institutions, including the International Criminal Court and the European Court of Human Rights. This study argues that the paradox of justice at the intersection of international criminal law and human rights law stems from the differing conceptions of justice and human rights that underlie these two fields. While international criminal law prioritizes retributive justice and the punishment of perpetrators, human rights law emphasizes restorative justice and the protection of human dignity. To reconcile this paradox, this research proposes a philosophical framework that integrates the insights of both fields. Drawing on the concepts of "justice as recognition" and "human rights as capabilities," this study develops a novel approach to understanding the intersection of international criminal law and human rights law. The findings of this study contribute to a deeper understanding of the complex relationships between justice, human rights, and international law. This research informs strategies for enhanced cooperation and accountability between international criminal law and human rights law institutions, ultimately promoting a more just and equitable international legal order. This study employs a qualitative research methodology, including critical discourse analysis and philosophical inquiry. The research questions guiding this study include: What are the differing ontological and epistemological assumptions underlying international criminal law and human rights law? How do these differing assumptions give rise to the paradox of justice at the intersection of international criminal law and human rights law? How can a philosophical framework that integrates the insights of both fields reconcile this paradox?. The study's findings suggest that a philosophical framework that integrates the insights of both fields is necessary to reconcile the paradox of justice. The research also highlights the importance of enhanced cooperation and accountability between international criminal law and human rights law institutions in promoting a more just and equitable international legal order. The key lessons from this study include the importance of understanding the complex relationships between justice, human rights, and international law, and the need for a philosophical framework that integrates the insights of both fields. The study also emphasizes the importance of enhanced cooperation and accountability between international criminal law and human rights law institutions.

Non-State armed groups exert extensive influence on populations around the world. However, international law does not effectively regulate the relationship between armed groups and populations subject to their authority or influence and so much of this interaction occurs in a legal vacuum. This chapter proposes international human rights law as a solution. The application of international human rights law obligations to armed groups is increasingly accepted, but the precise content of the resultant obligations is unclear. Significantly, the development of the law in this regard presents a unique opportunity to actively engage armed groups, and to encourage their compliance with human rights law, and international law more broadly. It is suggested that if the practice of armed groups and their motivations are incorporated into the development of human rights obligations, then the resultant obligations can be used not only to regulate armed group activity but also to guide it. Human rights law can be used to demonstrate to armed groups how they can govern in the best interests of the affected population—thereby promoting human rights protection—and why it is in their interest that they do so—thereby promoting compliance. This chapter examines armed groups’ practice, motivations, and ideology and discusses armed group governance activities related to the administration of justice and service provision in order to illustrate how the proposed approach could proceed. Although the focus is on international human rights law, where international humanitarian law is applicable it must also inform the development of any obligations.

The concept and the rights of environmental refugee have attracted national, international governance and scholars’ attention. I have tried to analyses through descriptive and explanatory approach the current trend of environmental refugees’ legal protection and its limitation and achievement. Thus, the objective of this research work is first to review legal scholars’ work, relating to environmental refugees to show the current trend, relating to environmental refugees protection. Second, to analyse the existing legal framework to show, whether it adequately has governed the issue of environmental refugees’ rights and identify the gap. Third, it explains the ways forward. The international refugee law (the 1951 refugee convention and the 1969 OAU refugee convention), the international environmental law, international law on Stateless persons, the international human right law and the system of temporary protected status. Environmental refugees could be referred otherwise as environmental migrants, environmentally displaced persons, climate refugees, climate change refugees, environmental refugees and ecological refugees, thus it implies the same thing in this context. The legal concepts are making that definition, such as well-founded fear, persecution, crossing international border, exclusion from refugee status (undeserving cases), and cessation of refugee status. The UN High Commissioner for Refugees state that 36 million people were displaced by natural disasters in 2009, and about 20 million of those were forced to move for climate change-related issues. According to other estimates, there could be as many as 150 million by 2050. In accordance with the estimates of UN Environment Programme, by 2060 there could be 50 million environmental refugees in Africa alone.

This book is concerned with the international regulation of non-state armed groups. Specifically, it examines the possibility of subjecting armed groups to international human rights law obligations. First addressed is the means by which armed groups may be bound by international law. Of particular interest is the de facto control theory and the possibility that international law may be applied in the absence of direct treaty regulation. Application of this theory is dependent upon an armed group's establishment of an independent existence, as demonstrated by the displacement of state authority. This means that armed groups are treated as a vertical authority, thereby maintaining the established hierarchy of international regulation. At issue therefore is not a radical approach to the regulation of non-state actors, but rather a modification of the traditional means of application in response to the reality of the situation. The attribution of international human rights law obligations to armed groups is then addressed in light of potential ratione personae restrictions. International human rights law treaties are interpreted in light of the contemporary international context, on the basis that an international instrument has to be applied within the framework of the entire legal system prevailing at the time of interpretation. Armed groups' status as vertical authorities facilitates the vertical application of international human rights law in a manner consistent with both the object and purpose of the law and its foundation in human dignity. Finally, if international human rights law is to be applied to armed groups, its application must be effective in practice. A context-dependent division of responsibility between the territorial state and the armed group is proposed. The respect, protect, fulfil framework is adapted to facilitate the application of human rights obligations in a manner consistent with the control exerted by both the state and the armed group. - See more at: http://www.bloomsburyprofessional.com/uk/human-rights-obligations-of-non-state-armed-groups-9781509901630/#sthash.TxdNfTUu.dpuf

Reviewed by: Mobilizing for Human Rights: International Law in Domestic Politics David Cingranelli (bio) Beth Simmons, Mobilizing for Human Rights: International Law in Domestic Politics (Cambridge Univ. Press 2009) 451 pages, ISBN 9780521885102. This is one of the most important books in decades on the effectiveness of international law in affecting human rights practices. It is an outstanding example of testing theory using a combination of qualitative and quantitative analyses. For students and scholars who want to understand how and when international human rights law works this book is a must-read. Simmons argues that international human rights law has made a positive contribution to the realization of human rights in much of the world. In support of this argument, she shows that governments that ratify human rights treaties improve their treaty-relevant human rights practices more than governments that do not. Although governments sometimes ratify human rights treaties insincerely, gambling that they will experience little pressure to comply with them, Simmons contends that this is not typically the case. Focusing on rights stakeholders within ratifying countries rather than external pressure from the United Nations or other states, she demonstrates that the ratification of treaties leads to better rights practices on average. By several measures, civil and political rights, women’s rights, a right not to be tortured in government detention, and children’s rights improve, especially in the very large heterogeneous set of countries that are neither stable autocracies nor stable democracies. Simmons argues that the international community should give more practical and rhetorical support to international human rights law as a supplement to broader efforts to address conflict, development, and democratization. She devotes about 40 percent of the book to developing theoretical arguments about why governments commit themselves to be bound by international law and then subjecting those arguments to empirical tests. The author uses most of the rest of the book to develop arguments about why states comply with their treaty commitments and subjecting those arguments to empirical tests. Her main argument about compliance is that treaties alter politics and human rights practices in certain settings by providing opportunities for social mobilization. There are four findings chapters—each focused on estimating the effects of joining a different human rights treaty. The last chapter is a well written summary of her findings, how they relate to her theories of commitment and compliance, and the implications of her findings for policy and practice. The two appendices to the book will be especially useful to those who wish to replicate her study or conduct similar studies. Appendix one provides a detailed account of the measures used in the quantitative analyses. Appendix two shows the countries included in her study broken down by the degree of the rule of law and by regime type—two of the most important characteristics explaining treaty commitment and compliance. [End Page 761] Simmons acknowledges that her arguments about the effectiveness of human rights treaty commitments run counter to most previous research. She notes that most previous relevant research in the fields of international law and human rights has relied on evidence from intensive case studies about treaty participation effects in individual countries. Her research, in contrast, looks for evidence of relationships between commitments to human rights treaties and human rights performance over a broad span of time and space. The data shows patterns that were not easily demonstrated in the previous quantitative or case study work conducted by other scholars. Simmons complements her quantitative evidence with detailed discussions of how treaties have influenced politics and practices in particular countries. The qualitative work in the book is useful in exploring the causal mechanisms by which government commitments to treaties are translated into subsequent better human rights practices. Her argument is that commitments to human rights treaties do not affect human rights practices by all the governments that make such commitments. They matter most where they have “domestic political and legal traction.”1 Her book is focused on identifying the conditions under which such traction is possible. Thus, even her quantitative research is more nuanced than most previous quantitative studies on this topic, which have generally reached more pessimistic conclusions about the effectiveness of international human rights...

As is well known, different countries may have a different attitude toward the formal rank of international human rights law in domestic legal order. In those countries that qualify the ratified international human rights law merely as statute, the formal rank of international human rights law is often used as an argument against the binding force of international human rights law on domestic constitutional law. Through a comparative analysis between Germany and Taiwan, though, this paper shows that, despite similar determinations on the formal rank of international (human rights) law, the German and the Taiwanese Constitutional Courts have developed quite different views on the normative significance of international human rights law to their domestic constitutional orders. The different constitutional practices in Germany and Taiwan thus not only reflect Taiwan’s unique international status, but also indicate that the formal rank of international human rights law does not have much to do with its normative binding force on domestic constitutional law. Those who use formal rank as an argument against the binding force of international human rights law on constitutional law presuppose the absolute dichotomy of international and domestic law and thereby overlook the potential compatibility between international human rights law and constitutional law. From a human rights perspective, I argue that international human rights law should not be regarded as an “external” law, but rather as a framework order which delegates domestic constitutional orders to concretize international human rights law according to their own needs or interests so as to fulfill their international task of human rights protection on national level. Viewed this way, the determination on the formal rank of international human rights law in domestic legal order matters only because it has to do with the determination of a certain constitutional order on the way in which it concretizes international human rights law.

International refugee law is a mechanism whereby States deal with persons seeking asylum within their borders. While this area of law has its roots in international human rights concepts, it has been influenced by less noble forces over the years. This article looks at how interactions between international human rights law, international relations and domestic decision making have impacted the ability of international refugee law to protect one of the most powerless groups, namely, stateless people. By exploring the analytical approaches applied by the Courts in the United Kingdom, the United States, Canada, Australia and New Zealand, this article attempts to demonstrate the ways in which stateless persons have been excluded from effective international human rights protection. Specifically, the article argues that states have not considered their own human rights obligations when making individual refugee status decisions. Further, it observes that, in some cases, decision makers have tended to refer to international compendia on international refugee law and international human rights law rather than to reflect directly on the law itself. This in turn has encouraged an increasingly restrictive approach to refugee determination. In its conclusion, this article offers suggestions for reintegrating the foundations of international human rights law into claim determinations for stateless persons. It suggests that a return to first principles and foundational concepts will realign the implementation of international refugee law with its intended purpose: the protection of the world's most vulnerable people.

International Criminal Tribunals are not party to any human rights convention, which raises the question whether they have human rights obligations under international law at all. If so, these must stem from other sources of international law. This chapter therefore investigates whether the ICTs, as legal entities, are bound by general international human rights law. To that end, this chapter first addresses the legal status of the ICTs in international law, and the two rationales that have prevailed in international legal doctrine for considering international organizations with legal personality to be bound by international law: the so-called transfer thesis and the subject thesis. Subsequently, three concerns are identified that must accompany the conclusion that the ICTs are bound by international human rights law. First, it is difficult to establish the existence of norms contained in the unwritten sources of general international law: custom and general principles of law. Second, international human rights norms are, to a certain extent, inherently flexible and differ considerably from the procedural norms that the ICTs primarily apply in the context of their proceedings. Third, the relationship between the legal instruments of an ICT and IHRL is fundamentally different from the relationship of domestic law with IHRL, because there is no a priori hierarchy between the law of international criminal procedure and IHRL since both are branches of international law. Therefore, the fact that the ICTs are bound by IHRL does not mean that they are, from a formalist perspective, fully precluded from deviating from the norms contained in this body of law.

The 1951 Convention Relating to the Status of Refugees (“Refugee Convention”) defines ‘persecution’ based on five enumerated grounds: race, religion, nationality, membership of a particular social group, and political opinion. This list of protected groups has not changed in the nearly 70 years since its inception, although the political and social context that gave rise to the Refugee Convention has changed. This article examines how ‘membership in a particular social group’ (“MPSG”) has been interpreted, then surveys international human rights law, transnational criminal law, international humanitarian law, and international criminal law instruments to determine whether MPSG can encompass the broader protections afforded under other international law regimes. It concludes that the enumerated grounds are largely consistent with other instruments and protects, or at least has the potential to protect, many of the other categories through MPSG. However, as this ground is subject to domestic judicial interpretation and various analytical approaches taken in different countries, protection could be enhanced by amending the Refugee Convention to explicitly include additional protected groups from these other areas of international law, specifically international human rights law and international criminal law.

The British House of Lords recently considered whether Augusto Pinochet was entitled to immunity from arrest and possible extradition to Spain for human rights abuses allegedly committed during his reign as Chile?s head of state. In its second decision in the case (after the first one was vacated due to a conflict of interest), the House of Lords concluded that Pinochet was not entitled to immunity for acts of torture and related conduct committed after Britain?s 1988 ratification of an international convention against torture. In addressing this immunity issue, the parties and judges in the Pinochet case looked closely at the large and growing body of U.S. case law involving civil suits against foreign officials for alleged human rights abuses committed in foreign countries. In this article, we in effect do the opposite: we assess how the Pinochet decision might be relevant to international human rights litigation in U.S. courts. The article focuses on three issues in particular. It first considers whether developments in international human rights law limit the scope of the domestic immunity available to foreign governments and officials. The House of Lords held that these developments did limit the scope of Pinochet?s immunity from criminal process in Great Britain. In the United States, however, the political branches and the federal courts have, with narrow and specific exceptions, declined to permit developments in international human rights law to limit the scope of foreign sovereign immunity from civil process. As we explain, the adverse political consequences that might flow from otherwise-unfettered private lawsuits against foreign officials for human rights abuses justify the broader immunities available in U.S. domestic courts. The second issue is the legitimacy of a U.S. counterpart to the British rule, invoked by some of the Law Lords in Pinochet, that customary international law ("CIL") is part of the British common law. In the United States, plaintiffs and scholars have argued for a similar rule of incorporation to justify the domestic application of substantive international human rights law. As we explain, however, the constitutional implications of an automatically-incorporated CIL are substantially different for the United States than they are for Great Britain. And, when faced with claims of international immunity, such as the claim of head-of-state immunity that was at issue in Pinochet, U.S. courts do not apply the CIL governing this immunity directly. Instead, they seek and follow political branch authorization. The failure by courts to apply CIL as automatically-incorporated common law in this context, involving traditional rules of CIL that are a central component of international relations, casts substantial doubt on the conventional wisdom that international human rights law should be applied as self-executing federal common law. Finally, the article defends the United States? general resistance to the domestic application of international human rights law. This resistance has two dimensions. First, the United States does not apply international human rights law to domestic officials. This approach is justified by the profound uncertainty regarding the source and content of international law, and the general adequacy of U.S. domestic human rights protections. Second, the United States permits the domestic application of international human rights law against foreign governmental officials, but only in very narrow contexts. This limited embrace of international human rights law reflects a legitimate concern with giving private citizens, and unelected judges, too much influence over U.S. foreign relations. As we explain, both of these justifications for resistance to the domestic application of international human rights law ? the vagueness of international norms and the danger that private lawsuits will interfere with foreign relations ? find support in the House of Lords? decision in Pinochet.