Free to Learn? Education in Australia’s Offshore Immigration Detention Centres

Central Asian States’ Compliance with International Refugee and Human Rights Law Both China and Central Asian states are parties to the major international human rights instruments that demand protection of the human rights of ethnic and religious minorities as well as protection of refugees from persecution based on their ethnicity and religious and political views. This chapter explores how Central Asian states have been balancing their international human rights obligations towards Chinese Uyghur asylum seekers and their regional obligations under the Shanghai Cooperation Organisation (SCO) to fight against terrorism, extremism and separatism. The author finds that Central Asian states have continuously treated Chinese asylum seekers as a political matter and have given preference to their regional commitments towards China over their international human rights obligations, which has resulted in the absence of any real protection for Chinese asylum seekers in the region. This chapter argues that while Central Asian states may see compliance with human rights obligations to be politically inconvenient, only due compliance with international refugee and human rights law in good faith will benefit these states in the long run. In particular, a strictly legal approach to Chinese asylum seekers will help Central Asian states assert their sovereign equality and independence within the SCO and balance out China’s growing influence on their domestic policy.

The 2016 icsid award in Urbaser v. Argentina affirmed for the first time the possibility of a counterclaim in investment arbitration based on an international investor obligation under the human right to water. But to denounce a break-through and fundamental change in both international investment and human rights law would be premature. This article deconstructs the award’s reasoning and sheds light on its doctrinal fallacies, in particular the award’s unclear construction of the integration of a human rights obligation into investment arbitration and its misled argumentation on the existence of an international human rights obligation of private actors under the human right to water. Concluding that the award cannot be sustained under the current state of international law, the article then reflects on the potential of the award’s conception of human rights counterclaims for the future of international investment law and international human rights law.

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.

The article examines approaches to the interaction of decisions of the Court of the European Union (CJEU) and international obligations in the field of human rights with the constitutional identity of states. Attention is focused on the concepts of “national identity” and “constitutional identity”, their relationship, and the introduction of the concept of “national identity” into the European legal order after the signing of the Maastricht Treaty (1993). Attention is drawn to the fact that the primary law of the EU does not contain the concept of “constitutional identity”, but this term is widely used in the decisions of the constitutional courts of several EU member states. In these decisions, the constitutional courts raised the issue of the protection of the constitution and constitutionality in the EU member state given the harmonization of legislation and/ or ultra vires decisions. The article notes that the concept of constitutional identity is broad, it covers the historical, political, cultural, and legal identity of the state, as well as the connection of national law with the international and autonomous legal order of the EU. The idea of constitutional identity is dynamic and constantly evolving due to the continuous development of the states themselves. The analysis of various approaches to this interaction based on the German Federal Constitutional Court, Hungarian Constitutional Court, and Italian Constitutional Court was carried out. It is noted that the interaction of CJEU rulings with constitutional identities is based on the principle of primacy of the EU law, and international human rights obligations are based on the conventional feature of the “obligation of uniform interpretation” and universal standards while ignoring the constitutional tradition of the states. It means that CJEU judgments have a higher legal force than national court judgments, while international human rights obligations should become precedents for subsequent national court judgments, not lowering the national standards of human rights protection.

This chapter addresses two crucial issues extraterritoriality presents—particularly when socioeconomic rights are taken into account. In order to identify extraterritorial human rights obligations we need to know why states are the primary duty bearers of international human rights law and which state owes international legal human rights obligations to which individuals. That is, we need to allocate the burdens that go along with human rights obligations and we need to justify this allocation. To do this, this chapter considers the Hohfeldian structure of rights, analyses accounts of justifying human rights, and argues that an interpretivist account of international human rights law as a normative context is the best way forward.

Human rights queryfalse are typically presented in terms of entitlements, correlative duties, claims, “trumps,” and remedies. 1 These framings, which draw principally on law and philosophy, emphasi...

Civil society organizations are key actors in the promotion and protection of human rights in Nigeria and have participated in all the Universal Periodic Review (UPR) circles of the Government of Nigeria. The UPR is a first of its kind innovation adopted in 2006 by the Human Rights Council to complement the works of treaty bodies and involves the review on a periodic basis, the human rights records of all Member States of the United Nations. As a peer review process comprising three distinct stages and involving three major sources of information, this article exclusively ex-rays the UPR civil society report on the implementation of Nigeria’s international human rights obligations. As one of the three sources of information relied upon by the Human Rights Council in the Universal Periodic Review of the human rights record of the Government of Nigeria, this article, while focusing on the civil society information submitted to the Human Rights Council pursuant to the United Nations General Assembly Resolution 60/251 concludes that despite advances in the promotion and protection of human rights claimed in its national report to be made in the implementation of international human rights obligations, there are still, from civil society lens, plethora of issues and gaps in the implementation of Nigeria’s international human rights obligations.

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

The 2017 Annual Conference of the Association of Human Rights Institutes (AHRI) held at the University of Leuven (KU Leuven) in Leuven (Belgium) from 27 to 28 April 2017 is the one of the leading events among the professional associations uniting international law scholars in human rights field. The conference focused on issues of monitoring compliance with international human rights obli-gations of States in the activities of universal and regional human rights bodies, particularly UN human rights mechanisms, human rights treaty bodies and regional and sub-regional human rights mechanisms within European, Inter-American and African human rights systems. Within these issues a particular at-tention was paid to the interaction between universal and regional human rights systems, specifically the role of regional mechanisms in the promotion and protection of human rights and enhancing univer-sal human rights standards enshrined in international human rights treaties. The paper provides a brief review of the selected reports presented at the conference, which raised a particular scientific interest of the author. The author describes the reports devoted to: 1) factors de-termining adoption and enforcement of international human rights obligations by States; 2) States’ im-plementation of international human rights norms through the lens of interplay between the internation-al, regional and national levels; 3) the interaction between the universal and European human rights sys-tems (European Court of Human Rights with human rights treaty bodies and special procedures of the UN Human Rights Council).

In 2014, Uganda’s Constitutional Court struck down the problematic Anti-Homosexuality Act (AHA). However, since the decision of the court was based on procedural rather than on substantive grounds, the AHA may very well be reintroduced, or, other anti-homosexuality laws in place can still be relied on to criminalise consensual homosexual conduct. The ideal solution is to have all the anti-homosexuality laws struck down in light of Uganda’s international human rights obligations. However, although a number of international human rights instruments lend impetus to the cause of decriminalisation in Uganda; these international standards have thus far not fully persuaded Uganda to have these discriminatory laws struck down. In this article, I argue that whereas arguments based on Uganda’s international and constitutional obligations form a good foundation for reform, these standards cannot of themselves form a complete solution to the prob- lem. Drawing on the various actors that were at the fore in the struggle towards the striking down of the AHA, I argue that translating the rights of lesbian, gay and bisexual and transgender (LGBT) people into a reality will require conscious efforts from a number of actors including the judiciary, international and national human rights defenders and faith-based organisations. I identify some of the mistakes made by the foregoing actors in advocating for the striking down of the AHA, and how these mistakes should be addressed if the cause of decriminalisation is to be effectively advanced. Although Uganda is placed at the heart of the discussion, the conclusions drawn are relevant to other African countries battling with this subject. Key words: Uganda, international human rights standards, Anti-Homosexuality Act, decriminalisation

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...

States are free to choose their own means for implementing international human rights obligations. Western states usually rely on legal means, in particular legally enforceable individual rights. However, law does not enjoy a monopoly. The receptor approach assumes that, especially in Eastern and Southern states, international human rights obligations can be implemented more fully through local social institutions. It identifies domestic social institutions capable of meeting human rights standards and assumes that, where these social arrangements fall short of human rights obligations, they will have to be improved and reformed. This should be done as much as possible with the help of home-grown remedies to foster the cultural legitimacy of international human rights standards.

International law and human rights obligations and norms are growing universally by states practice and consent, especially in national legislation and smoothly constitution. Principles of international law and human rights obligations are increasingly adopted in national legislation. Since the foundation of the United Nations (1945) and adoption of the Universal Declaration of Human Rights (1948), subjects such as state, sovereignty, humankind, and rights have been keeping updating and upgrading from conceptual and contextual perspectives. However, the fact is that most constitutions were promulgated before the establishment of United Nations (1945), while many of them have been updated (amended) after that. Statistically, in the late 1990s, more than half of the current constitutions came into force. The proportion was up to a third in the twenty-first century. The number of amendments is increasing periodically. These newly amended constitutions are not only facing international law normative updates but also their antecedent states’ obligations of incorporated human rights. International law and human rights are making a significant contribution to the conceptual and contextual changes in constitutions. While constitutions are the national matters, consequently public law, the question is the possibility of classification and evaluation of constitutions by international law and human rights at the first stage. The second question is the connection of two different fields of law, i.e., international law and constitutional law; the hypothesis approximates the two through the comparative, transnational approach and use of standard ground connections. Scrutiny of the updated constitutions which are affected by international obligations and norms, improves the rule of law and good governance by shedding light on public law dimensional sphere which is a gap from a common point of international and constitutional law view. This study is trying to find common international law and human rights values for classification of constitutions and rendering the extracted values as a sample evaluation index.

A human rights approach: The right to education in the time of COVID‐19

SummaryTo secure greater inter-state cooperation in criminal law enforcement, Canada has entered into a number of extradition treaties. Yet alongside this network of extradition treaties lies a network of human rights treaties to which Canada has also agreed to be bound. Given the inherently international nature of extradition, and the interconnection between Canada's human rights treaties and its obligations under the Canadian Charter of Rights and Freedoms, one would have thought that Canada's international human rights obligations might play some role in bolstering the protection afforded by the Charter to the rights of an individual facing extradition from Canada, even if the threshold for invoking the latter remains high. And yet, while a review of Canada's extradition jurisprudence for the past thirty years confirms that a role for human rights has emerged in Canadian extradition law, scant attention has been paid to Canada's international human rights treaty obligations as treaty obligations when deciding whether to extradite upon receiving a valid request. The author argues that if Canada's international human rights obligations were considered, along with Canada's domestic Charter obligations, greater guidance would be made available as to the appropriate balance of rights and obligations at stake, while also affording equal treatment to all of the treaty obligations relevant to extradition.