Application Of Human Rights Norms Research Articles

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.

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.

Unilateral Exceptions to International Law: Systematic Legal Analysis and Critique of Doctrines that Seek to Deny or Reduce the Applicability of Human Rights Norms in the Fight Against Terrorism

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.

Paying for Human Rights Before the Bill Comes: Towards a More Comprehensive Domestic Implementation of International Human Rights Norms in Australia

Despite being actively engaged in human rights at the international level, Australia has no federal Bill of Rights. This paper addresses how Australia's international engagement may translate into domestic application of human rights norms.

Human rights litigation and the ‘war on terror’

AbstractThe ‘war on terror’ has led to grave human rights violations and, in response, to a growing volume of human rights litigation. This article provides an overview of litigation that has unfolded in recent years in relation to issues such as arbitrary detention, torture and ill-treatment, extraordinary rendition, extraterritorial application of human rights norms and the creeping reach of the ‘terrorism’ label. These cases provide a prism through which are displayed key characteristics of the war on terror as it affects human rights, and enables us to begin to ask questions regarding the role of the courts and the impact of human rights litigation in this area.

Human Rights Defenses in US Courts

Human Rights Defenses in US Courts John Quigley (bio) I think domestic courts should faithfully recognize the obligations imposed by international law. The Supremacy Clause of the United States Constitution gives legal force to foreign treaties, and our status as a free nation demands faithful compliance with the law of free nations. —Sandra Day O’Connor 1 I. Introduction In the last decade of the twentieth century, human rights have assumed new prominence in diplomacy and in law. With the end of the Cold War, regimes in the developing world that violate rights can no longer survive by allying with a major power. Eastern Europe is being drawn into European human rights institutions. Economic integration in Europe is enhancing the role of institutions that enforce rights standards. In Africa, a continent-wide human rights commission is beginning to play a meaningful role, and political change in the Republic of South Africa has created a strong new voice calling for rights observance on the African continent. In the Western hemisphere, a regional human rights court is testing its strength and beginning to decide important cases. Rights violations have become an occasion for military intervention, as witnessed by the UN actions against Iraq for its treatment of Kurds and Shi’ites, and against Haiti for failing to allow an elected president to govern. [End Page 555] The trend towards acceptance of human rights norms has not bypassed the United States. Although, by virtue of its economic and political position, the United States is somewhat insulated from pressure on human rights issues, European states have begun to target the US human rights record. Western Europe no longer uses capital punishment, and a number of European states refuse to extradite persons to the United States if they face the death penalty. Before they will extradite, these states require the United States to agree not to impose the death penalty. 2 The European Union is pressing the United States on the question of the privacy of personal data held in data banks, finding the practices of US financial institutions deficient in protecting consumers’ privacy rights. Under a 1995 European Union directive, European financial institutions may, as a sanction, stop sending financial information to the United States if it does not improve the protection given to personal data by 1998. 3 Having long resisted ratifying major human rights treaties, the United States has recently become a party to four important treaties: the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture), 4 the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), 5 the International Covenant on Civil and Political Rights (ICCPR), 6 and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). 7 Although the United States’ motivation for ratification was [End Page 556] more to enhance its own standing to criticize others than to accept new obligations, these new treaties contain important guarantees that may expand rights in the United States. US legislation and case law also have increased rights protection in certain respects. For example, the Torture Victim Protection Act 8 allows a victim of torture to sue the alleged torturer regardless of the nationality of either party, and regardless of the location of the alleged act of torture. 9 The Genocide Convention Implementation Act 10 provides for the prosecution of US nationals for genocide, even if the genocide is committed abroad. 11 Federal courts have utilized a statute dating back to the Judiciary Act of 1789 to allow a cause of action against rights violators who commit torts in “violation of the law of nations.” 12 One major recent trend in human rights law around the world is an increased application of human rights norms by domestic courts. By virtue of constitutional provisions or judicial initiative, courts apply human rights norms as if they were locally enacted. To date this trend has had little impact in the United States, where one finds some application of human rights norms in such situations, but more often an avoidance of these norms. When US governmental agencies take adverse action against an individual, and the individual asserts a treaty-based norm in...