Application Of Human Rights Law Research Articles

View HAM to Problem Social in era modern Ummi Fadillah

Right basic man (HAM) is matter which important for enforced because its existence give guarantee principle equality (equality) for all over people man. Inequality between the fulfillment of human rights and the implementation of obligations Unbalanced human rights are still an interesting discourse in Indonesia. For this reason, this research was carried out with systematic approach literature review with the aim of proposing a human rights legal paradigm based on obligations human rights. From a legal research perspective, the nature of this research is categorized into in study prescriptive. Data in this study sourced from regulationlegislation, books and scientific articles from national and international journals relate with draft human rights and law Ham. Results from this study showthat upholding human rights must see the fulfillment of human obligations, because in generalgeneral somebody can demand right if has fulfil obligation. With By basing rights on obligations, human rights law will be balanced. It is hoped that this article can become a reference in the application of human rights law in Indonesia in effort build justice between rights And obligation basic man.

قانون حقوق الإنسان والقانون الإنساني: بين التكاملية والتعارض

International human rights law and international humanitarian law are two specialized areas of public international law. They exist as two distinct branches of law. Each branch has a different legal basis and origin. However, they share humanitarian ideals, and thus some areas of overlap appear in practice. The two systems share the responsibility for protecting the rights of human beings: Humanitarian law in times of armed conflict, and human rights law in times of peace and times of war as well. Because of this, in practice, it happens that the standards of international human rights law and international humanitarian law are applied simultaneously. At the same time, there are differences between these two legal systems that arise from the different circumstances involved in a state of war and a state of peace. Consequently, several questions arise regarding this relationship: Are the two branches mutually exclusive? Under what circumstances is humanitarian law applied, and how does this differ from the application of human rights law? What are the areas of overlap? What are the practical consequences of the legal problems resulting from the parallel application of the two legal frameworks? This paper does not aim to answer all of these questions, but rather its goal is to contribute to the current debate by presenting the similarities between human rights law and humanitarian law, areas of overlap, and situations of common application. We will also focus on the differences in this relationship, especially the differences in the field of protection guaranteed by legal standards, responsibility for violating the standards, as well as the exceptions allowed in implementing the standards. In one part of the paper, the principle of private law is applied in cases where one of the two branches is more specific in a concrete situation.

From defending the “opposite of property” to the fundamental right to property, the case for the application of human rights law and philosophy to the international intellectual property regime.

International intellectual property law has extended so far in scope, both substantially and geographically, that it plays a role in aggravating poverty, creating crises in access to medicine and in the exploitation of indigenous peoples’ resources, to cite a few of its impacts. This expansion of intellectual property law has been extensively criticised, most famously by “cultural environmentalists”, who compare the public domain to a natural resource which is being depleted by intellectual property rights. While this criticism aptly brings into question the international intellectual property regime, the binary it relies on, between the public domain and intellectual property, does little to address the nefarious human impacts of the regime. Instead, bringing intellectual property law within the ambit of international human rights law allows for a more comprehensive evaluation of ethical concerns and human consequences, bringing nuance that the cultural environmentalists’ public domain rhetoric lacks.

Corporate power, urban governance and urban law

Given the growing role played by corporate power in urban governance, this article considers how, in structuring the interplay between corporations and the local state within contemporary urban governance arrangements, urban law can enhance public values and public accountability. Drawing on examples from different cities and legal systems, the article points to the commonality of hybrid public/private governance arrangements at city-level and highlights common challenges pertaining to coordination, democratic participation and accountability. It then engages with some of the common legal underpinnings of these challenges and considers ways in which urban law may address them. These include the shaping of urban autonomy through the legal devolution of state power, the legal structuring and regulation of urban decision-making fora and governance instruments, and the horizontal application of human rights law in local governance settings.

The 2021 ECtHR Decision in Georgia v Russia (II) and the Application of Human Rights Law to Extraterritorial Hostilities

This article discusses the findings of the European Court of Human Rights in the 2021 case of Georgia v Russia (II) in relation to the applicability of the European Convention on Human Rights to the conduct of hostilities. The article describes the arguments advanced by the Court to support the idea that the Convention does not apply to extraterritorial hostilities in an international armed conflict. In the light of past decisions, international humanitarian law, international human rights law, and the law of the treaties, it is argued that the Court's conclusion is unconvincing and the arguments seem to be based on extralegal considerations, rather than on a sound interpretation of the notion of state jurisdiction under the Convention.

Are human rights ‘toothless’ in Australian child protection matters? Perspectives of lawyers and social workers

Abstract Human rights law is in its infancy in Australia. Some states and territories have human rights legislation that requires government officials to take human rights into account in decision-making. However, there is very little Australian case law or commentary regarding the application of human rights law to child protection matters. In this article, we discuss the potential for human rights law to influence decision-making in child protection. We interviewed lawyers and social workers who support parents in child protection matters in the state of Queensland to determine whether they thought rights-based advocacy could bring about better outcomes for their clients. Whilst some social workers were optimistic about the potential for human rights advocacy to improve outcomes for parents, lawyers generally believed that human rights law was unlikely to assist. Jurisprudence from other jurisdictions demonstrates that human rights arguments can influence outcomes in child protection matters, so additional human rights training may be needed for lawyers and judicial officers in Australia to encourage consideration of human rights in child protection cases.

A Legal Analysis of Humanitarian Interventions as Mechanism to Stop Human Rights Violations

In the post-Cold-War era, intervention to alleviate humanitarian crisis and protection of human rights had gained wide legal and moral acceptance. Through the examination of two post-Cold-War interventions, in Somalia and Kosovo, it was argued that the linkage between humanitarian assistance and the protection of human rights was tenuous. In both cases, the methods employed to provide humanitarian assistance were not consistent with those required to protect human rights. The dilemma of how best to protect human rights is one of the most persistent problems facing the international community today. This article is aimed at examining the effectiveness of humanitarian intervention in stopping human rights violations. For this purpose, data was collected through primary and secondary sources. The data collected was analyzed, using two approaches. The content analysis approach was used in order to analyse the various texts and institutions put in place for the protection of human rights. Moreover, the critical approach was used in order to bring out the weaknesses of such laws and institutions. Throughout this research, it appeared that humanitarian intervention is to some extent ineffective to stop human rights violations because the available laws on humanitarian intervention are unimplemented or only implemented to a lesser extend owing to the fact that there exist several encumbrances, challenges and difficulties in the implementation thereof. This is worsened by the fact that human rights violations are left at the behest of state since the international jurisdiction to handle violations of a human nature is sometimes ineffective to handle human rights violations coupled with the fact that there is an inert problem of differences in legal systems, the smooth application of human rights law is thereby hindered.

Human rights law and humanitarian law: between complementarity and contradiction

International human rights law and international humanitarian law are two specialized areas of the public international law, which exist as distinct legal branches. These legal branches have a different origin and legal basis, but a common humanist ideal, and consequently areas of overlap in practice. Both legal regimes share the responsibility to protect human beings’ rights; Humanitarian law in time of armed conflict, human rights law in peacetime and in wartime as well. Because of this, in practice there is sometimes concurrent application of the legal norms of international human rights law and international humanitarian law. At the same time, there are also differences between these two legal regimes that arise from the different circumstances which are relevant in a state of peace and in state of war. Hence, regarding this relationship, many relevant questions arise: Whether these legal branches are mutually exclusive? Under what circumstances does humanitarian law apply, and how does this differ from the applicability of human rights law? Which are the areas of overlap? What are the practical consequences of the legal issues resulting from parallel application of the two legal frameworks? This paper is not intended to resolve all these questions, but to make contributions in the ongoing debate by presenting similarities between human rights law and humanitarian law, areas of overlap, and situations of concurrent application. We will also underline the differences which exist in this relationship, especially the differences in the scope of protection guaranteed within the legal norms, the responsibility for breaking the norms, as well as permitted derogations in implementation of the norms. One part of the paper applies the principle lex specialis in cases where one of the legal branches is more specific in a concrete situation.

ЯКИМ ЧИНОМ МІЖНАРОДНЕ ПРАВО ПРАВ ЛЮДИНИ ВИРІШУЄ ПИТАННЯ ЕКСТРАТЕРИТОРІАЛЬНОГО ПОРУШЕННЯ ПРАВ ЛЮДИНИ?

The armed conflict in Ukraine has been ongoing since 2014. As to date, the total number of recorded deaths has exceeded ten thousands civilians and combatants. Every day, i.e. during the present research, this number has been increasing. As outlined above, the European regional system of human rights protection, epitomised by the ECtHR, addresses this challenge within two interrelated tracks: individual and inter-State applications. The research focuses on landmark decisions of international, regional, and domestic courts in terms of human rights extraterritorially by way of establishing human rights duty-bearer jurisdiction outside states’ boundaries based on effective control test. It scrutinizes the jurisprudence of the ECtHR in terms of inconsistency between Bankovic and Aj-Jedda cases. In turn, the paper aims to model extraterritorial application of human rights law in Ukraine v. Russia inter-State applications (re Crimea and re Eastern Ukraine) based on Loizidou precedent as well as describes new forms of Russia’s violations of human rights in Crimea.

Bridging Separate Worlds - Application of Human Rights Law in Investment Treaty Arbitration

Bridging Separate Worlds - Application of Human Rights Law in Investment Treaty Arbitration

Social movements, reframing investment relations, and enhancing the application of human rights norms in international investment law

AbstractThe recent moderate trend to increasingly apply human rights law in investment awards is accompanied by certain new investment treaties which include expressed human rights provisions. An analysis of recent investment awards indicates that though there are some ‘winds of change’ in this field, it is equally noticeable that human rights law is far from being mainstreamed in international investment law. Investment arbitration procedural law is also undergoing a process of change, and the new procedural rules tend to enhance public elements in the investment arbitral system. This study is aimed at explaining these recent legal changes, highlighting the role of social movements in reframing investment relations as well as increasing public pressure to apply human rights law. These framing changes concern broadening the frame of investment arbitration (beyond the foreign investor–host state dyad), reversing the perceived balance of power between investors and host states, and zooming-in on local individuals and communities residing in host states. The discussion on factors impeding legal change in this field emphasizes the role of the private legal culture prevalent in the investment arbitration system, which is reflected and reinforced by certain resilient socio-legal frames. Informed by this analysis, the study suggests some legal mechanisms which can mitigate the inter-partes frame, and increase the application of human rights law in investment arbitration; inter alia, rigorous transparency rules that are likely to facilitate increased public pressure on tribunals and increase the participation of social movements representing local actors in arbitral processes.

Surveillance and Cyber Operations

This chapter examines the extent to and the basis on which human rights treaties apply extraterritorially to state surveillance and cyber operations. Consider only the following examples: (1) The targeted surveillance of a specific individual outside a state’s territory – as, for instance, with the operations allegedly conducted by the authorities of Saudi Arabia against Saudi dissidents abroad, one of which ultimately led to the plot to assassinate the journalist Jamal Khashoggi, or against the CEO of Amazon, Jeff Bezos, apparently in a rather crude attempt to blackmail him. (2) Mass surveillance or bulk collection programmes, such as those run by the US and UK signals intelligence agencies, that syphon the content of electronic communications of millions of people outside the state’s territory, or the metadata about these communications, in order to create searchable datasets in which persons of particular interest, e.g. suspected terrorists, can then be found. (3) Cyber operations that exfiltrate data on Covid-19 vaccine research, potentially affecting the development of vaccines that could save many thousands of lives. (4) Cyber operations that destroy or manipulate such data. (5) Cyber operations against hospitals or against critical infrastructure, which directly endanger many lives. (6) Cyber operations against media outlets, which disrupt their activities and inhibit their freedom of expression. (7) Online misinformation operations for various purposes, for example to manipulate the outcome of an election or to destroy public trust in state institutions during the pandemic. Common to all of these scenarios is that through entirely digital means states can violate a host of different human rights, from the rights to privacy and the freedom of expression, to the right to life and the right to health, of persons located outside their territories.The chapter will first proceed to briefly outline how the traditional models of extraterritorial application, the spatial and the personal, would apply to surveillance and cyber operations, examining a few old cases in which the issue was raised, if never properly resolved. It will then look at recent developments that are particularly important in the surveillance and cyber context, even if some of them are not directly apposite: a judgment of the UK Investigatory Powers Tribunal, the advisory opinion of the Inter-American Court of Human Rights on the environment and human rights, the Human Rights Committee’s General Comment No. 36 on the right to life, and the judgment of the Federal Constitutional Court of Germany on the applicability of the German Basic Law to surveillance operations abroad. The chapter will then finally offer some concluding thoughts on the direction towards which the legal position is likely to evolve, and should evolve, regarding the applicability of human rights law to extraterritorial surveillance and cyber operations.

Gender Injustice and the Pandemic

In this twenty first century, women continue to be reckoned as the most oppressed class; and at times are even denied the basic human rights. When women have fewer resources, less power and less influence compared to the male counterparts, they are made to experience inequality and there is discrimination based on class, ethnicity, age, as well as religious and other fundamentalism. Gender inequality, also happens to be the key driver of poverty and a fundamental denial of women’s right. Even in this 21st century, it goes without saying that, a near universal phenomenon is gender-based violence, which threatens the well-being, rights and dignity of women. An instance of such gender based violence is Domestic Violence- which forms the subject matter of this paper. Viewed from the perspective of human rights violation, with the application of human rights law, the State’s obligation to respect individual rights of each and every person gets reinforced, so much so that, the wrong doer can be held accountable for abuse of those rights of private individuals. Therefore, even if the State does not actually commit the abuse, it has the obligation to guarantee legal protection to the women victims. In attempting to discuss about one form of household abuse, which is seen to be aggravating more during this COVID-19 Pandemic, and the Lockdown that is operating in India, since March 24th, 2020, in this paper, discussion will centre round the principle of Equality which the framers of the Indian Constitution has also recognized as a Fundamental Right as well as a Directive Principle of State Policy, and which right has been secured to all citizens by the Preamble to the Indian Constitution. Despite every safeguard being provided by law, the Indian woman has been made to swim through troubled waters, which in itself is a matter of grave concern.

Introductory Remarks: Overview of General Research Trends and Topical Focus for 2020: Researching Human Rights and Artificial Intelligence

There are many current threads in human rights research today; some are extensions of more traditional concerns, and others call upon the application of human rights law as a part of international law that is evoked by recent and changing realities. There is, first, a historical turn in international law that is relevant to human rights even though it is more traditional for legal scholarship to look at such sources. Recently, Third World Approaches to International Law (TWAIL) and discoveries about the role of the women's peace movement (as women endured and challenged the mixed messages about their roles at the time of the founding of the League of Nations) are new perspectives in that they were previously set aside, as were indigenous people's perspectives. Historian Reza Afshari and others have spoken to the focus on structural transformation and lived realities as a more political methodology for human rights, going beyond discourse and its possible Western biases. Third, environmental research has emerged in a new way, using empirical data and big data to track the impact on health and human rights; included here may be the current situation of the COVID-19 pandemic. There are also new developments in the law of war, such as drone strikes, which take us toward automated war. The automation of human functions and judgments takes us, finally, to this panel's focus on human rights research: artificial intelligence, or AI. There may arise a theory of agency implicating those who create or operate AI outside a war context, or even within it as alleged war crimes.

Good governance as a precondition for subsidiarity: human rights litigation in Nigeria and ECOWAS

ABSTRACTSimilar to the European Union, the Economic Community of West African States (ECOWAS) evolved gradually from little more than a customs union to a supranational organisation with sophisticated governance arrangements. As a consequence, subsidiarity has become an inevitable adjustment mechanism to align individual member state policies with objectives of the Community as a whole. In particular, since the inclusion of a protocol on good governance and democracy in 2001 an increasing number of policy areas require a delineation of competencies between state and Community organs. Moreover, the ECOWAS Community Court of Justice confines itself to the vertical application of human rights law and does not accept human rights claims against private persons since the extension of its mandate in 2005. Many cases involving the Federal Republic of Nigeria illustrate well a double procedural effect of the principle of subsidiarity in the human rights litigation within the ECOWAS legal order.

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.

Irregular Migration by Sea: Interception and Rescue Interventions in Light of International Law and the EU Sea Borders Regulation

Abstract Since 2011, due to the Syrian civil war, Libya’s institutional breakdown and Eritrea’s political unrest, record high numbers of irregular migrants have been arriving at the EU’s south-eastern external borders, publicly known as the ‘Europe’s refugee crisis’. The most pressurised borders have been those of Greece and Italy. The human smuggler’s ‘organised refugee’ strategy has identified various legal issues resulting from the application of parallel legal frameworks both at regional and at international level. The EU Member States’ policy-making response to human smuggling has created loopholes through conflicting interpretations of the international legal framework on search and rescue and the inconsistent application of human rights law. Hence, this article will argue that although the International Convention on Maritime Search and Rescue (SAR) and the EU Sea Borders Regulation purportedly adopted to set out clear rules on when to initiate search and rescue, have not addressed the issue of responsibility for and the consequences of failed rescue scenarios by inactive SAR States; thereby creating a gap in the legal framework on State responsibility for negligent or intentional failed rescues.

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 Human Rights Obligations of the Holy See under the Convention on the Rights of the Child

In considering the application of human rights law to non-state actors, we should not overlook one case where a non-state actor is quite clearly bound to human rights law: the case of the Holy See and its adherence to the Convention on the Rights of the Child (CRC). While many authorities have debated whether non-state actors can be held responsible for human rights obligations, most analyses omit notice of the unique case of the Holy See. Admittedly, it is very unusual for a religious institution to participate in international law, and the Holy See sometimes resists the “normal” application of international law to its activities, citing its unique nature. It does seem strange to subject a church to international law. However, the personality of the Holy See as a legal issue depends on the application of international law. This paper will assess whether human rights law can apply to the Holy See, as a non-state actor, in the same or similar manner as it applies to states. This non-state actor has an almost unimpeachable legal personality, yet it is not a state, and while it does participate in some human rights treaties, it is still rather unclear how those obligations apply.

The Impact of International Humanitarian Law on the Principle of Systemic Integration

The present article explores the impact of international humanitarian law (IHL) on the consolidation and development of the principle of systemic integration. The analysis relies on the jurisprudence of those international judicial and quasi-judicial bodies that have used IHL for interpretive guidance when applying human rights law in armed conflict. Whereas much attention has been paid to the substantive outcome of the interplay between these two bodies of law, too little consideration has been devoted to the role of systemic integration within this context. Human rights bodies and the International Court of Justice resort to this principle in three ways, namely by means of Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT), through equivalent provisions included in certain human rights treaties, or implicitly. In that regard, systemic integration is employed either to reinforce the application of human rights law by way of IHL, or to avoid norm conflict between diverging norms, especially in relation to the use of force and detention. The article identifies the kinds of impact that IHL has or may have with regard to the consolidation of the principle of systemic integration within the interpretive principles codified in the VCLT and in terms of the modification of some of its constitutive elements. It also aims to demonstrate that systemic integration, rather than lex specialis, is the principle of interpretation most pertinent to the interaction between IHL and human rights law.