Application Of Human Rights Research Articles

Creación de escenarios de diálogo intercultural para la eliminación de la mutilación genital femenina

La lucha por eliminar la mutilación genital femenina choca con diversas justificaciones provenientes de la tradición y la cultura de las comunidades que la practican. Esta investigación busca determinar cómo se relacionan dichas justificaciones con la resistencia a la aplicación universal de los derechos humanos. Para ello se hace una revisión y análisis bibliográfico y documental, en el marco del debate sobre diversidad cultural y la pretensión de universalidad de los derechos humanos, con el fin de comprender esas justificaciones y las dificultades que entraña para las niñas y mujeres decidir al respecto. Como resultado, se propone crear escenarios de diálogo intercultural para propiciar el empoderamiento de mujeres y niñas, generar la posibilidad de oponerse a esta práctica y promover la creación de rituales alternativos por las mismas comunidades.

Constitutionalizing FIFA: Promises and Challenges

FIFA’s reformation process, which began with the World Cup bid in 2010 and culminated in the explicit inclusion of human rights in FIFA’s statutes since April of 2016, exemplifies how transnational sports law (lex sportiva) can undergo processes that contribute to the protection of human rights. In fact, when viewed through the lens of societal constitutionalism, FIFA’s reformation process can be analyzed as a process of emergent constitutionalization. This paper provides the requisite empirical investigation and applies Teubner’s theory on societal constitutionalism to study FIFA’s reform process. FIFA has effectively formulated limitative rules by introducing human rights to their private ordering. This marks a decisive evolutionary step in the way sport related disputes are settled by the Court of Arbitration for Sport (CAS). Given FIFA’s new statutes, human rights no longer just apply subsidiarily (if at all), but directly. Further going re-specialization and regime-specific application of human rights can also be observed in FIFA’s reformation process. Human rights are positivized by a process formed like a ‘patchwork quilt’, entwining pressure from NGOs, private ordering, contracts, CAS decisions, and national courts decisions. Each part represents a valuable contribution to FIFA’s ‘common law’ transnational, social constitution. But this self-evolving constitution can be effective only when coupled to regimes of reflexivity and enforceability. Our case study reveals that FIFA’s reformation process already features high levels of reflexivity. Nevertheless, it is lacking in regimes of enforceability. It remains an outstanding question to what extent FIFA can be held accountable for human rights violations. Here, the societal constitutionalist lens draws attention to the normative importance of society for limiting the negative effects which FIFA has on its environment.

Can Religious Human Rights Discourses Help Integrating Muslim Migrant Communities Across Europe?

The perception of Islam as antithetical to European human rights values is widespread in Europe. Such perceptions complicate the task of integrating Muslim minorities across Europe. While incrementing respect to human rights norms among migrant communities is an important element of any integration policy, this goal should not be perused by forcing migrant communities to adhere to human rights norms based on purely secular grounds. The drafting history of the Universal Declaration of Human Rights is the ultimate proof that human rights can be justified from different political, philosophical and religious perspectives. While European States cannot compromise their commitment to human rights, even in relation to migrant communities, still, they must allow other narratives on the importance and the meaning of human rights to emerge. Muslim migrant communities must be allowed to engage in intra-group religion-based dialogues to reevaluate their stance on human rights and to debate their meaning. After being given the opportunity to engage in internal debates on the significance of human rights, Muslim migrant communities should also be engaged in cross-cultural dialogues with the rest of community to generate a wider agreement on the meaning and the application of human rights. This two-fold strategy is consistent with the principle of subsidiarity, which suggests that for human rights be effective they must be seen as legitimate by all those small groups that are close to the individual. Such legitimacy cannot be imposed from the outside, it must emerge from within these small groups. However, for these intra-group and cross-cultural dialogues to succeed, the separation of religion and State cannot be understood as the complete exclusion of religion from the public sphere. Individuals of different philosophical or religious convictions must have an equal access to public debates on the centrality of human rights in the European legal order.

Vulnerability Assessment of a Potential COVID-19 Outbreak in the DPRK

2019년 Global Health Security (GHS) 지수는 북한을 전반적인 건강 관련 안보 대비 수준에서 ‘최소 준비된’ 국가로 식별하고 있다 (GHS 2019). 북한은 다른 국가들에 비해 상대적으로 건강문제에 대한 안보에 있어서 훨씬 더 높은 수준의 취약성과 최소한의 준비 수준을 보유하고 있다. 북한의 건강 보장 조건이나 수준은 오랜 기간 변하지 않았다. 2019년 말 이후, 209개 국가들 전역에서 전례 없는 COVID-19가 발생 하면서, 북한의 경우는 매우 심각하게 우려스러운 상황이다. 한편, 전 세계 거의 모든 국가들은 현재 COVID-19 위협에 처해있다. 따라서, 본 논문은 전염병 취약성 지수; Infectious Disease Vulnerability Index (IDVI) 프레임워크를 사용하여 북한의 건강안보에 대한 준비수준 (만약 있다면)과 취약성 수준을 분석하려고 한다. 이러한 취약성 분석을 바탕으로 본 논문은 국제기구 (IOs)와 국제 비정부기구 (INGOs)의 인도주의적 지원 활동을 통해 형성된 초국적 후원네트워크; Transnational Advocacy Networks (TAN)가 잠재적 COVID-19 발생 상황 시, 시민들을 돕고 그들의 건강관리 보호에 기여할 뿐만 아니라, 북한의 전반적 보건 분야 인권증진 향상에 긍정적 변화를 유도할 것이라고 사료된다.The 2019’s Global Health Security (GHS) Index has identified the Democratic People’s Republic of Korea (DPRK) as the ‘least prepared’ nation in terms of its overall level of health related security preparedness (GHS 2019). The country had much greater level of vulnerability to health problems and a minimum level of preparedness. In the wake of the year 2020, the overall health security conditions of the DPRK seem to remain unchanged. With the unprecedented COVID-19 outbreak across 209 nations since the late 2019, the case of the DPRK has been extremely worrisome. Meantime, virtually every nation in the world is currently suffering from the COVID-19 threats. This paper therefore attempts to analyze degree of preparedness (if any) and vulnerability to health security conditions using the Infectious Disease Vulnerability Index (IDVI) Framework. Based on the vulnerability assessments, this paper contends that transnational advocacy networks (TAN) formed humanitarian aid operations by International Organizations (IOs) and International Non-Governmental Organizations (INGOs) will not only make contributions in helping the citizens manage potential COVID-19 outbreaks but induce positive change to the application of human rights to the health sector in the DPRK.

Human rights unbound: An unrepentant call for a more complete application of human rights in relation to older persons-And beyond.

This article argues that, in relation to ageing issues in Australian society, we need to more strongly embrace an explicit and comprehensive human rights framework in analysing what is going on in our society and to adopt a much more robust and demanding human rights approach to policy development and holding government accountable for its actions and inaction. This means not just the explicit invocation of existing human rights norms to ageing issues, but also the development of new norms and interpretations of human rights that more fully reflect the perspectives of older persons than current mainstream norms do. The argument is developed through an analysis of reports of the Royal Commission into Aged Care Quality and Safety and into Violence against Persons with Disabilities. It maintains that these bodies and others engaged in policymaking relating to older persons in Australian society can enhance their work by systematically applying a comprehensive and robust human rights framework.

The idea of a human rights-based economic recovery after COVID-19

The COVID-19 pandemic has produced a health and economic crisis of unprecedented scope. As economists and policymakers turn to the task of recovery, protecting human rights remains intrinsically important, both morally and legally. It is also instrumental to the ends of public health and economic resilience. This article argues that the human rights to life, health, education, social security, housing, food, water and sanitation - among the so-called economic and social rights - are as essential as civil and political protections. Moreover, rather than simply ameliorate the inevitable indignities and material deprivations caused by the COVID-19 pandemic, the implementation of duties to respect economic and social rights should help ensure their protection in the post-COVID-19 economy. For this to occur, however, the article suggests that the application of human rights to the economic recovery must be informed by a longer history of economic crises and be assisted by both international and comparative economic and social rights legal frameworks and participatory processes.

WAIVER OF HUMAN RIGHTS: A RIGHT OR A CHALLENGE?

The author discusses the new tendencies of waiving human rights. In the article they are qualified as a new emerging institute of Human Rights Law. The definition of human rights waiver is discussed, as well as the necessity to give a legal regulation to it. The author presents the existing definitions of human rights waiver, but does not share any of them, particularly most of them define human rights waiver as not utilization of human rights, but the author calls this definition as a passive application of human rights, whilst waiver of human rights has its own content which is discussed in the article in details. Human rights waiver is discussed in the light of the co-relation of the right to autonomy and the principle of paternalism. The author presents some case law on waiver of human rights, which is very rare. Specifically, the author presents the case law of the Constitutional Court of the Republic of Armenia and the case law of the European Court of Human Rights. The legal positions of the mentioned bodies can serve as good criteria in dealing with human rights waiver. Particularly, the Constitutional Court of the Republic of Armenia held a decision dedicated to this issue and qualified waiver of human rights as an exception from the classical perception of human rights ideology. The author agrees with idea reflected in decision of the Constitutional Court concerning the correlation of human rights waiver and right to autonomy, according to which right to autonomy cannot be absolute and that absolute waiver of human rights can, in its turn, violate the human rights. In this context the author highlights the necessity of defining the limits of human rights waiver offering two important directions for discussion of this question; the scope of the rights which can and cannot be waived, the framework and criteria of a waiver of human rights.

Odgovornost države za kršenje ljudskih prava u slučaju prekogranične ekološke štete - novo shvatanje eksteritorijalnosti u primeni međunarodnih ugovora o ljudskim pravima?

The paper provides an in-depth analysis of the issue of extraterritorial application of human rights treaties in the specific context of transboundary environmental harm. The classic criteria for extraterritorial jurisdiction established through the landmark judgments of the European Court of Human Rights are revisited and compared with the extensive extraterritoriality threshold introduced by the Inter-American Court of Human Rights in its 2017 advisory opinion on environment and human rights. The author examines the features, requirements and limits of the new extraterritoriality threshold which is based on the effective control over intraterritorial activities that result in extraterritorial human rights' violations. The paper attempts to offer arguments for perceiving the new extraterritoriality threshold as a general standard of international human rights, as well as to examine whether it represents a (mis)interpretation of the duty to prevent transboundary environmental harm as a well-established rule of international environmental law. The author also discusses the prospects of expanding the application of the new jurisdictional threshold to other areas not necessarily linked to environmental degradation.

The subject-matter jurisdiction and interpretive competence of the African Court on Human and Peoples' Rights in relation to international humanitarian law

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 Right to a Clean and Healthy Environment: International Protection

The right to a clean and healthy environment (the exact formulations differ) is yet to be recognized as an independent right in the international bill of rights. The right is not mentioned in the Universal Declaration of Human Rights (1948) or in the International Covenant on Civil and Political Rights (1966). Nevertheless, discussions revolving around international recognition of the right to a clean and healthy environment have continued since the early 1970s, when the UN Declaration on Environment (Stockholm Declaration (1972) and Rio Declaration (1992)) stated that “[m]an has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being…“(Principle 1) (Principle 1, UN Conference on the Human Environment, ‘Stockholm Declaration of the United Nations Conference on the Human Environment’). Moreover, both the International Covenant on Economic, Social and Cultural Rights (1966) (ICESCR) and the Convention on the Rights of the Child ((adopted 20 November 1989, in force 2 September 1990) 1577 UNTS 3) make reference to an adequate condition of the environment (see article 12 of the ICESCR and article 24 of the CRC, in particular). The jurisprudence of human rights monitoring bodies to other treaties, like the Human Rights Committee, has started to recognize the application of human rights in environmental contexts. The right has also been recognized at the regional level, in a great number of constitutions, and at the sub-constitutional level. Considering the extent of international and in particular regional human rights treaties that refer to the environment, their case-law and the latest discussions on the matter, it seems that today, the question to ask about the human right to a clean and healthy environment is not whether the right should be acknowledged internationally, but how.

The idea of a human rights-based economic recovery after COVID-19

The COVID-19 pandemic has produced a health and economic crisis of unprecedented scope. As economists and policymakers turn to the task of recovery, protecting human rights remains intrinsically important, both morally and legally. It is also instrumental to the ends of public health and economic resilience. This article argues that the human rights to life, health, education, social security, housing, food, water and sanitation - among the so-called economic and social rights - are as essential as civil and political protections. Moreover, rather than simply ameliorate the inevitable indignities and material deprivations caused by the COVID-19 pandemic, the implementation of duties to respect economic and social rights should help ensure their protection in the post-COVID-19 economy. For this to occur, however, the article suggests that the application of human rights to the economic recovery must be informed by a longer history of economic crises and be assisted by both international and comparative economic and social rights legal frameworks and participatory processes.

ANÁLISIS Y AVANCES EN LA APLICACIÓN DEL ARTÍCULO 1º DE LA CONSTITUCIÓN POLÍTICA DE LOS ESTADOS UNIDOS MEXICANOS

Derivado de la reforma constitucional en los Estados Unidos Mexicanos del 10 de junio de 2011 en materia de derechos humanos, el país ha vivido cambios substanciales en la impartición de justicia, así como de interpretación normativa en beneficio de la sociedad, si bien es cierto, esa reforma fue promovida en arasde que el país se encontrara a la vanguardia en materia de derechos humanos también lo es que la misma fue de aplicación inmediata que trajo consigo carencias en infraestructuras para la aplicación amplia a los derechos humanos consagrados en la Constitución, así como la falta de actualización de los servidorespúblicos impartidores de justicia, lo que trajo consigo el atraso en la aplicación de dichos derechos. No obstante lo anterior, la tendencia globalizadora en derechos humanos en el mundo orillo al Estado Mexicano a actualizarse a pasos acelerados, por lo que resultaba puntual enfatizar y aplicar de manera inmediata los principios consagrados en la propia Constitución en su artículo 1º Constitucional, así como crear precedentes jurisprudenciales que apoyaran en el aceleramiento en la aplicación de los derechos humanos en México. No obstante lo anterior, es importante destacar que la experiencia para los impartidores de justicia como de loa abogados postulantes ha sido complicada, lo anterior ya que en la actualidad seguimos en un problema grave en violaciones a los derechos humanos en lucha constante con la actualización en interpretación jurídica, siendo responsable tanto el sector social como del propio Estado.

A ‘Culture of Justification’? Police Interpretation and Application of the Human Rights Act 1998

The near-exclusive focus of public law scholarship on judges as the interpreters and appliers of the Human Rights Act 1998 is entirely understandable given the judiciary’s constitutional role to authoritatively determine the scope of human rights law. But what I want to suggest in this paper is that if we extend our gaze just a bit further, into the realm of public administration, there are parallel communities of interpretation whose understandings and applications of human rights are well worthy of examination in their own right. The paper presents a case study of one such ‘interpretive community’ to explore what a ‘culture of justification’ within public administration might look like: the public order commanders of the Police Service of Northern Ireland, tasked with policing contentious parades and protests. The paper introduces a ‘culture of justification’ as an aspirational vision of public administration and the merits of an empirically-grounded inquiry of it. Marshalling data from qualitative research with the PSNI, the paper examines the legal training and advice police commanders are given to promote a rights-based approach to public order policing. It proceeds to explore how human rights law is practised by commanders, revealing how they use human rights to manage positive duties, as well as ‘trouble’ from police oversight bodies.

China and the Global Reach of Human Rights

AbstractThis article examines the complex dialogical relationship between China and the global reach of human rights. It charts the transformation of China from a human rights exception and a human rights pariah state to an active participant in, and shaper of, global human rights governance. It looks at such transformation as dynamic social and political processes full of contradictions and the negotiated outcome of China's communicative engagement with “moral globalization” in a world morally divided on the meaning of human rights. It contends that the global reach of human rights understood asadvancingrather thanperfectingglobal justice will always remain contentious, as it is contingent on the possibility of open public reasoning across cultures and national boundaries in a global moral conversation. It also argues that China has resourcefully used the idiom of human rights for two specific purposes. One is to justify and rationalize its “developmental relativism” as an excuse for practices that condone continued political repression in China; the other is to internalize politics of contestation within the institutions of global human rights governance by shifting the centre of gravity of both the normative debate and the practical application of human rights.

Universal Human Rights, Indigenous Values and the Concept of Relativism

One emerging issue in contemporary human rights is whether it is logically correct to accept new realm of human rights as universally binding upon cultural rights arising from the moral and religious mores of every society, without more, and whether application of human rights should be relativized, at least in isolated circumstances. Discussing relativism of human rights within the framework of indigenous values, the paper took the position that a holistic application of recent realm of human rights universally in radically different societies would be counterproductive. Accordingly, the paper recommends that first and second generation rights be relativized where they develop beyond the original text of Universal Declaration of Human Rights.

Are human rights western—And why does it matter? A perspective from international political theory

A widespread assumption alleges that human rights are not universal, as they claim to be, but are instead Western oriented. Yet a growing body of research provides evidence that human rights are not just Western. Both perspectives are critical of repressive dimensions in the human rights regime, though they recommend different approaches to addressing them. This article explores both viewpoints from an International Political Theory perspective. Examining the pluralist idea, institutionalization, and application of human rights, the first section argues that human rights are not just Western. The second section investigates why it nevertheless matters to ask whether human rights are Western. This article develops four interrelated criteria: dynamic pluralism, awareness of power and inequalities, contextual universalism, and open normativity. These criteria help determine whether human rights are (not just) Western, and, more importantly, they provide the basis for an emancipatory human rights regime.

Applying human rights to enable participation

ABSTRACTHuman rights are seen by democratic theorists as being central to promoting the realisation of deliberative and participative democracy. However, there is little detailed analysis of how an application of human rights law can inform participatory processes. This article explores the application of freedom of association, non-discrimination, and freedom of expression to participatory processes before looking briefly at the application of other human rights. Deriving standards from established human rights principles, it finds that these rights can be interpreted to have an impact on who is entitled to participate in these processes and how they should be enabled to do so.

The Applicability of Human Rights Law in International Investment Disputes

Abstract Human rights are becoming increasingly relevant in international investment disputes. A question therefore arises as to whether the application of human rights law to those disputes is justified. This article answers that question in the affirmative. In particular, it suggests that there are at least four legal grounds (which may operate separately or cumulatively) warranting the application of human rights norms in the context of international investment disputes: (i) the fact that international human rights law is part of international law, which in turn governs the merits of investment disputes; (ii) the presence of express references to human rights in the investment treaty; (iii) the presence of implied references to human rights in the investment treaty; and (iv) the principle of systemic integration. Each of these grounds can be the basis for applying international human rights law as an interpretative tool. Some of them, however, can play a more substantive role and justify the direct application of international human rights norms to the merits of the dispute. This may lead to normative conflicts. The article thus also provides a framework to determine, in case of clashes between international investment law and international human rights norms, which norm should apply in concreto.

The Proliferation of Human Rights: Between Devotion and Calculation

This chapter explores how enlightened pragmatism demands that common sense and realistic capacities temper an ‘everything goes’ devotee approach to human rights by reshaping the narrative that proliferation is a negative concept. It speaks to the ways in which this balancing act has played out in terms of proliferation in the human rights system and perhaps how it should play out in the future. First explored is the legal and political machinery designed to protect human rights. Next, the chapter focuses on the positive and negative aspects of entrenching human rights language. Finally, the work considers critiques of the expansive interpretation or application of human rights. From increased monitoring and enforcement mechanisms and global use of human rights language to more expansive interpretations and applications of human rights law, the reality is that human rights law must evolve and respond to its environment if it is to remain relevant.

EU as a human rights actor?

The human rights are fundamental principle of the European Union law, which should be observed in adoption of legislative rules as well as in implementation practice. The EU had been initially founded as the economic cooperation project and an ambition to establish cooperation between its member states also in political agenda became more visible especially since the Lisbon Treaty, by which the position of EU in area of external relations was strengthened. The paper analyses position of the European Union when promoting and protecting human rights in external relations. As there exist several tools and mechanisms EU may use in implementation of human rights policy, we analyze the role of the EU in relation to the application of human rights in foreign policy as stated in Article 2 and Article 6 of the Treaty on European Union.