The limits of refugee protection in mass influx situations

This book examines the scope and content of article 16 of the 1951 Refugee Convention relating to the Status of Refugees. It assesses the obligations that bind Contracting States to provide asylum seekers and refugees with access to courts under article 16 of the 1951 Refugee Convention, and whether these obligations extend beyond those that otherwise bind States under international human rights treaties, customary international law, and general principles of law. The book analyses issues on which scholars’ views have evolved over time on article 16. Through doctrinal analysis, it investigates the historical origins of article 16, the extent to which its protections have been subsumed by international human rights law, customary international law, and general principles of law, and its ultimate scope. It concludes that gaps remain in the protective framework of international human rights law and general international law, but that the interpretative approach taken by courts and treaty bodies to the human rights treaties analysed—particularly on the principle of effectiveness—could usefully be adapted to interpret article 16. Applying an evolutionary, teleological approach to the interpretation of the 1951 Convention, the book then analyses article 16’s scope and content in light of the issues canvassed. It concludes that article 16 remains a relevant and robust source of protection for asylum seekers and refugees.

Since the general framework of international human rights law has been built in the 1960s to the 1980s, a new generation of questions has arisen, which focuses more on the effectiveness of that framework and, particularly, on its impact at national level. The role of national authorities is vital in this respect. International human rights can only be effective on the ground, where they really matter, if national courts, parliaments, and governments rely on them, and if civil society mobilizes in order to hold authorities accountable on that basis (see, e.g. D. Beyleveld, ‘The Concept of a Human Right and Incorporation of the European Convention on Human Rights', (1995) Public Law, 577; C. Heyns and F. Viljoen, The Impact of the United Nations Human Rights Treaties on the Domestic Level (The Hague: Kluwer Law International, 2002); O. Schachter, ‘The Obligation to Implement the Covenant in Domestic Law’ in L. Henkin (ed.), The International Bill of Rights. The Covenant on Civil and Political Rights (New York: Columbia University Press, 1981), p. 311; on the role of national courts in applying international human rights, see B. Conforti and F. Francioni (eds.), Enforcing International Human Rights in Domestic Courts (The Hague: Martinus Nijhoff, 1997)).

Social Rights in Refugee Law and Human Rights Law: The Non-discrimination Principle as a Harmonization Tool

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...

INTRODUCTION. The year of 2018 marks with a global celebration of 70th anniversary of Universal Declaration of Human Rights, the landmark international document which represents the universal recognition that basic rights and fundamental freedoms are inherent to all human beings which is solemnly proclaimed by the UN member states. The most debatable and ambiguous issue is the determination of the legal status of this essential document. Given the fact that the Declaration was adopted by the UN General Assembly in a form of the resolution, it has a recommendatory character. However, the Declaration which adopted as “standard to which all nations and states should strive to achieve” has undergone a certain legal transformation related to the constant development and refinement in the process of concluding a rich body of legally binding international human rights treaties that affected both domestic and international law. In this regard, the statements on the necessity of recognition of the certain provisions of the Declaration as norms of the international customary law are timely and fully justified. The article analyzes national judicial practice of sovereign states and the International Court of Justice in order to identify the possibility of such recognition. MATERIALS AND METHODS. The article is based on a considerable amount of materials, including the Universal Declaration of Human Rights, working materials of the UN Commission on Human Rights, statements made during General Assembly meeting (documented as verbatim records) on adoption of the Declaration, decisions and advisory opinions of the International Court of Justice, as well as the doctrinal positions of different authors. The methodological basis of the research comprises the general scientific methods (the dialectical, historical, statistical methods, methods of generalization and system analysis) and special methods of cognition (comparative legal and formal legal methods, methods of interpretation of legal norms). RESEARCH RESULTS. In the basis of the study of the international legal acts and international judicial practice, national legislation and judicial practice of concrete states, as well as doctrinal positions of scientists, the author makes conclusions on the legal status of the Universal Declaration of Human Rights. DISCUSSION AND CONCLUSIONS. In the article the author gives a historical reference on the diplomatic contestation in the period of the adoption of the Declaration which subsequently affected the final text of the document. Taking into account the moral significance, as well as weighty contribution of the Declaration to the adoption of international and regional human rights treaties, national legislation and judicial practice, the author comes to the conclusion that the certain provisions of the Declaration should be recognized as norms of the international customary law. The author also concludes that in modern conditions, when a number of states are still not a party to the main international human rights treaties, the provisions of the Universal Declaration of Human Rights should act for them as binding norms of international customary law that are formed as a result of international practice of states and are gradually recognized by them as a legal norm. This conclusion is also formed on the basis of the practice of the International Court of Justice, the decisions and advisory opinions of which are analyzed by the author in this article.

Though Taiwan is not a member state of the United Nations, it is determined to incorporate some international human rights treaties in the same way a usual state does. In 2009, the Government made every effort to “ratify” the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the Convention on the Elimination of All Forms of Discrimination against Women into the domestic legal system in accordance with the “treaty obligation.” Unsurprisingly, none of the instruments of ratification were successfully deposited with the Secretary-General of the United Nations. Two years later, the Government submitted its initial reports under the two Covenants to a group of ten international independent experts for review in Taiwan. In this connection, the Government and people of Taiwan have come to recognize that international human rights law constitutes an integral part of the legal system of Taiwan. With this recognition, the courts have occasionally applied or referred to the two Covenants in their decisions and judgments in spite of the doubts and criticism as to the validity of the international human rights treaties’ rules. Apparently, the determination to internalize international human rights law into the domestic legal system of Taiwan is beyond any doubt; however, several problems have emerged subsequent to the failure of completing the process of ratification under international law. The problems may be summarized as follows. First, the question concerning the capacity to conclude international treaties and the nature of the legal effect as regards the unilateral act by Taiwan in the context of international law. Second, the status and effect of international human rights treaties in the domestic legal order of Taiwan, Third, there are questions concerning the method of incorporating international human rights treaties by enacting the Implementing Act, which was specifically designed to create the binding force of the treaty law within the jurisdiction of Taiwan. Fourth, the practice applied by the courts or in constitutional interpretation as regards the rights and freedoms in the human rights treaties. Without proper theory and adequate practices concerning how to incorporate international human rights treaties in Taiwan, international human rights law is nothing but an unexpected and unwelcome international law that has caused an unpleasant disturbance in the domestic legal order. That said, this chapter intends to elucidate the legal implications of these questions and the problems therein and to deliberate a possible solution for the judiciary to take the rights and fundamental freedoms seriously.

Existing case law under human rights treaties, in particular Article 8 of the European Convention on Human Rights, includes several findings and interpretations related to sexual rights. The sexual identity and orientation of a person, as well as his or her sexual autonomy and integrity have found protection under the right to respect for one's private and family life. Among other important treaty provisions giving protection to sexual rights in the framework of international human rights law are the prohibition of torture and other inhuman or degrading treatment, the prohibition of discrimination, the right to a fair trial and the right to marry and to found a family. Under humanitarian law rape, one of the main forms of violations of sexual integrity and autonomy, is defined as a crime against humanity, with the consequence of individual criminal responsibility arising. Rape committed by a public official during detention has been defined as form of torture by the European Court of Human Rights. Positive state obligations exist under the right to respect for an individual's private life to sanction rape or other breaches of sexual autonomy and integrity when committed by other private individuals. Sexual identity and its manifestations, again, enjoy protection under the right to private and family life, as has been shown by international case law related to homosexuality and transsexualism. Here, the autonomous and independent non-discrimination clause in Article 26 of the International Covenant on Civil and Political Rights is a basis for further guarantees.

This paper on unilateral exceptions to human rights and international law in the fight against terrorism seeks to take stock of a whole range of arguments, doctrines or constructions that states may resort to when seeking to justify their unilateral exceptions to human rights norms in the fight against terrorism. The following constructions are discussed: (a) Denial of the applicability of human rights law during armed conflict (b) Denial to individuals of status as protected persons under international humanitarian law (c) The United Nations Charter as lex superior compared to human rights obligations (d) Denial of attribution to an individual state of action by intergovernmental organizations (e) Denial of extraterritorial effect of human rights (treaties) (f) Reservations to human rights treaties (g) Persistent objection to norms of customary international law (h) Derogation during times of emergency (i) Overly broad use of permissible limitations or restrictions (j) Withdrawal from treaties. Many of those constructions have a valid legal basis and a proper scope of application. However, they often affect only a specific treaty, or the availability of a procedure, but do not affect the substantive obligations of the state in question under international law. Some of the constructions are open to abuse, i.e. bad faith efforts to distort international law to the detriment of human rights. Because of the complexity of the overall consequences of the various excuses and exceptions, there is need for a holistic approach that seeks to address the combined effect of the various constructions of unilateral exception.

This study analyses US state court behaviours in citing international human rights treaties to advance human social rights. Employing case analysis and logistic regression, we find that US state court citation practices to human rights treaties provide support for human social rights depending upon the type of human rights treaty cited; whether the case opinion is a published decision; and, whether the judicial opinion is a criminal or civil case. These judicial citation practices provide US state judges with the institutional capacity to advance universal human social rights. Theoretical and empirical implications are presented in the concluding section.

This chapter examines the potential role that criminal law might play in a business and human rights treaty. It takes as its point of departure the criminal law components of existing human rights treaties, rather than international or national criminal law, that may be of relevance in this context. The chapter explores how international human rights law has incorporated criminal law into existing instruments. It then turns to consider the acts that give rise to criminal liability and what might be understood by ‘gross human rights violations’ in international law. The chapter’s third section examines the issue of criminal liability, and considers how a treaty might address both the modes of liability for individual employees, officers or directors of a company, and that of the company itself as a legal person, through the doctrine of corporate criminal liability. The chapter draws on other areas of international law of relevance to this issue, including treaties relating to corruption, terrorism and organised crime. While national legal systems provide numerous examples of the application of criminal law to companies or associated individuals, this chapter consciously focuses on existing international law, particularly human rights law, in order to determine the extent of international agreement regarding the modalities of the application of criminal law to corporate activities that violate human rights. In light of this approach, the concluding section includes a suggested article on criminal liability for legal persons for inclusion in the potential business and human rights treaty.

The topic of reservations and derogations is a complex issue in treaty law. Reservations define the content and extent of a legal obligation for a party to a treaty. They thereby allow states to accommodate their specific interests in the framework of multilateral treaties. The starting point for any examination of reservations is the 1969 Vienna Convention on the Law of Treaties (VCLT). According to the definition contained in Article 2(1)(d) VCLT, a reservation means “a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.” Some unresolved and controversial issues in treaty law include the legal effects of objections to reservations, the legal effect of impermissible reservations, and the legal status of interpretative declarations. The VCLT does not address the notion of derogations. Typically, in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, states may take measures derogating from their obligations under certain treaties to the extent strictly required by the exigencies of the situation. This is provided that such measures are not inconsistent with their other obligations under international law. Specific clauses which lay down specific procedures on derogations are usually incorporated in human rights treaties. However, it is unclear under what precise circumstances a state may derogate from its treaty obligations, or what procedure is to be followed in this regard. The concepts of reservations and derogations have been of interest for many years, not least in the context of human rights treaties. In this article, the main focus is on reservations to and derogations from multilateral treaties. Historical Background of Reservations to Treaties Prior to the 1969 VCLT gives a historical overview of the development of the regime of reservations to treaties prior to the adoption of the 1969 VCLT. Reservations Under the Regime of the 1969 VCLT addresses reservations under the 1969 VCLT regime. Legal Effects of and Procedure Regarding Reservations deals with the legal effects of permissible reservations. Legal Effects of Impermissible Reservations addresses the legal effects of invalid reservations, and Reservations to Human Rights Treaties addresses reservations to human rights treaties. Practice of Human Rights Bodies on Reservations to Human Rights Treaties looks at some approaches of human rights bodies with respect to reservations to human rights treaties. Interpretative Declarations addresses the issue of interpretative declarations, and 2011 ILC Guide to Practice on Reservations discusses the 2011 Guide to Practice on Reservations to Treaties. Lastly, Derogations deals with the notion of derogations, with a particular emphasis on derogations from norms ius cogens and human rights treaties.

This study investigates the legal obstacles related to sovereignty, climate-induced displacement, and human rights, emphasizing deficiencies in current international legal frameworks. This research offers a complete legal analysis of climate displacement and statehood loss, highlighting their interdependence, unlike earlier studies that have examined these topics independently. It also examines various legal remedies, including enhanced refugee rights, international acknowledgment of climate-displaced individuals, and novel legal frameworks for stateless communities. Rising sea levels provide unparalleled legal and humanitarian concerns, especially for low-lying island states confronted with the risk of inundation. As these governments progressively diminish in area, inquiries emerge about their legal legitimacy, sovereignty, and the entitlements of their displaced inhabitants under international law. Existing legal frameworks, such as the Montevideo Convention on statehood, the 1951 Refugee Convention, and international human rights treaties, provide inadequate protection for governments impacted by sea-level rise and their displaced populations. The study utilizes a normative legal framework, examining principles and norms of international law, and adopts a case study technique to qualitatively investigate the legal intricacies of the case. The results find that international law fails to address climate-induced displacement and statehood loss. It calls for recognizing deterritorialized statehood, expanding refugee protections, and establishing binding resettlement obligations to prevent statelessness and uphold human rights.

The African Court on Human and Peoples' Rights has a uniquely broad subject-matter jurisdiction that includes any 'relevant human rights instrument ratified by the states concerned' (article 3 of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights). This article considers the extent to which the Court's subject-matter jurisdiction includes international humanitarian law, and the related issue of the Court's interpretive competence. It is argued that the Court indeed is competent to directly apply norms of international humanitarian law. However, the circumstances under which it can do so are limited to two instances, namely, (i) where international humanitarian law norms are incorporated by reference into applicable human rights treaties; and (ii) in the likely scenario that the Court regards some international humanitarian law conventions as having a human rights character, the primary rules of the applicable international humanitarian law obligations must entail an individual right. Whether a given international humanitarian law obligation entails an individual right is to be determined on a case-by-case basis and, in any event, such instances will be rare. As a consequence of the limited circumstances under which the Court can directly apply international humanitarian law, determining the extent to which the Court can rely on the interpretation of international humanitarian law in applying human rights norms remains pertinent. In this regard it is argued that the Court can rely on international humanitarian law in the application of human rights norms on two bases. First, considering the complementary relationship the Court has with the African Commission, the Court can rely on the African Charter's interpretation clause (articles 60 and 61). Second, the Court has an implied power to interpret international humanitarian law in applying human rights treaties, as this power is necessary for the Court to discharge its mandate.

The Nigerian legal system is diverse in that it recognizes several established legal systems that regulate how Nigerians conduct themselves. These legal frameworks include the civil law that was passed down from the British during and after colonization, pre-colonial customary laws and cultural practices, and religious laws (Christian and Islamic laws). Different kinds of norms and laws have subjected Nigerian women to violations of their rights depending on the woman’s cultural or religious affiliation. Such cultural and/or religious practices are usually in opposition to civil law and the Nigerian constitution, which is a custodian of these rights. Moreover, despite the supremacy of the constitution and expected compliance with international human rights treaties that Nigeria has ratified, the fact is that today there are impediments to the effective protection of women’s rights in Nigeria. For instance, although the Nigerian constitution outlaw’s discrimination on the grounds of gender, customary and religious laws continue to restrict the effective implementation of women’s rights, making it extremely difficult to harmonize domestic legislation with international human rights conventions, and also remove discriminatory measures. This article, thus, examines the issues of gender inequality as the basis for agitation for women’s empowerment and women’s rights while also proposing a re-alignment of domestic legislation in compliance with international human rights conventions and treaties, in order to combat cultural and religious norms that flout human rights considerations for Nigerian women. Therefore, the main objective of this paper is to highlight the challenges that may arise when these legal systems clash, and how that affects the protection of women’s rights, particularly in view of international human rights treaties which Nigeria has signed and ratified. The article will therefore propose that women’s rights should be protected by seeking to eradicate cultural and religious practices that are discriminatory. This can be achieved by adopting laws which can be interpreted by domestic courts in line with constitutional requirements protecting the rights of women. It is noteworthy that the Nigerian judiciary has declared certain customs and traditions contrary to natural justice, equity and good conscience. Some of the case laws and judicial pronouncements will also be examined in this paper to enable implementation for the protection of women’s rights. The methodology adopted is desk-top legal research where judgments of courts and legislative enactments will form the basis of the findings of this paper.

This paper studies the question of the extra-territorial effect of human rights treaties, using the European Convention on Human Rights as an example of the broader questions the growing interdependency of States raises for the understanding of the notion of States' jurisdiction. The caselaw of the European Court of Human Rights is exemplary in that, despite the professed willingness of the Court to examine the issues it is presented with within the framework of general public international law, it cannot fully escape the tension between that framework and the specificity of human rights treaties. Second, nowhere to a larger extent than on the European continent has interState co-operation been developed, and has State sovereignty been restricted, especially – for the Member States of the European Union – due to the supranational character of the Union. This requires not only that we address the question of the “jurisdiction” which States may be said to exercise over situations which are affected, not by measures they have adopted (or could have adopted) unilaterally, but by the combined acts of a number of States, whether or not in the framework of an international organisation. It also requires that we ask whether any positive obligation may be imposed on States to develop further these modes of inter-State cooperation, where this is required for the effective protection of the rights of the individual, and whether this may be reconciled with the principle of specialty of international organisations. These features justify calling the European Convention on Human Rights a laboratory for the understanding of the evolving notion of “jurisdiction” in the era of globalization.