Development Of Human Rights Law Research Articles

The Illusion of Progress: Rethinking Human Rights and the Legal Regulation of Mobility

The development of human rights law is generally presented as a story of progress. This progress is an evolution from an “old” legal regime that did not recognize individual rights to a “new” law (starting with the 1948 Universal Declaration of Human Rights (UDHR)) that anointed all individuals as possessors of internationally recognized rights against their states. Further, the definition of these rights has supposedly expanded over time, adding elements of complementary protection and extraterritorial application.

The Development of Human Rights Law and Challenges Faced by UN Treaty Bodies 1969–2022

This article examines some of the major contributions of and the challenges UN treaty bodies have encountered since the creation of the first such institution, the Committee on Racial Discrimination, in 1969. It looks at the roles played by treaty bodies in interpretating and monitoring compliance with UN human rights treaties, including questions about the effectiveness of procedures, inclusive of individual petitions and the remedies they may afford. It questions whether new procedures like inquiry and investigation may prove more beneficial to victims of abuse than the earlier and less- intrusive measures states were willing to accept. The dearth of reliable evidence on implementation and state enforcement of international human rights treaties makes overall conclusions about the value added by treaty bodies more anecdotal or impressionistic than reliable.

The European Court of Human Rights—Can there be too much Success?

Abstract During its more than 60 years of operation, the European Court of Human Rights has proven to be a real beacon for many individuals. Through its case law, it has contributed to the development of human rights law as well as to the development of the principles of the rule of law and of democracy in Europe. However, the Court faces two central problems: the caseload it has to deal with and challenges to its authority and legitimacy. The present contribution will study the history and the achievements of the Court, and address the challenges and the Court’s response to them. The latter has particularly included measures aimed at making its working methods more effective and attempts to increase awareness of its subsidiary role within the Convention protection system, especially regarding its approach to the review of decisions of national authorities. In this context, the development of the principle of process-based review in the Court’s jurisprudence is examined. What will characterize the Convention system in the future is closer cooperation between the Court and national courts. Whether this will effectively lead to an increased protection of human rights on the ground remains to be seen. It is not only for the Court to earn such confidence through its work, but also for others to maintain a climate in which that confidence can continue to be enjoyed.

The death of Jamal Kashoggi: Issues of Human Rights Violations and International Law

State responsibility is a cardinal principle of international law. The doctrine of State sovereignty under international law accords States’ legal personality and requires that they fulfill international obligations. International law imposes obligations on States to perform their duties in ensuring that a breach of international law does not go unpunished. Consequences for such actions means that States need to adhere to procedural and substantive law in addition to offering reparation for the violation of an international obligation. In the past, violation of an international obligation was only attributed to States as they were considered to be the only entity that could possess rights and duties within the international sphere. Therefore States were considered to be the only ones that could be criminally liable for acts that could be attributed to them. But the development in human rights law and the advent of rules governing personal criminal responsibility has extended the scope of international obligations under international law to include States and individuals as being liable for international crimes. The international law disallows immunity from prosecution in foreign domestic courts for the most serious crimes: Re-Pinochet case. This means State responsibility and individual responsibility for wrongful acts are not mutually exclusive.

National Human Rights Action Planning by Azadeh Chalabi

Reviewed by: National Human Rights Action Planning by Azadeh Chalabi Aisling Swaine (bio) Azadeh Chalabi, National Human Rights Action Planning (Oxford: Oxford University Press 2018), ISBN 9780192555595, 251 pages. As discussed so very well in this timely and original book by Azadeh Chalabi, the rapid development of human rights law and norms has been "spectacular" since the middle of the last century. The founding of the United Nations both brought about and was premised on a paradigm of human rights. This was a new framework deigned to advance a global governance that not only melded the fractures caused by the world wars, but advanced a cooperative multilateralism that worked toward a humanity rooted in the dignity and prosperity of all peoples. Human rights instrument followed human rights instrument in an effort to advance these ideas. Lackluster translation of these lofty ideals into practical realities, however, meant that the generalized set of rights founded by the Universal Declaration of Human Rights in 1948, and even those that founded civil, political and socioeconomic rights in the 1960s, were slowly followed by instruments dedicated to addressing gaps in specific areas of rights. Even these, such as the Convention on the Elimination of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child, while contributing to vast improvements in tackling discriminations specifically affecting women and children, continue to lack a robust implementation required to achieve the vision originally set out by the human rights ideals of the United Nations system.1 The dissonance between the ideals of the instruments and their implementation, and indeed between what different states [End Page 531] might consider to constitute full implementation on their part, is an ongoing concern. States—who are ultimately responsible for fulfilling the rights enshrined in these instruments—scholars, and the policy makers tasked with translating rights into real change, have advanced both practical ideas and the debate for implementation since the inception of the human rights field. Approaches taken to translate and implement global legal obligations into and through myriad domestic legal, political and sociocultural systems, have faced a range of challenges, many of which this book sets out to discuss very clearly. For example, the task facing the human rights committees overseeing the implementation of these instruments and the ways in which they tackle state responsibilities are discussed in the book, as are the challenges faced by states in fulfilling their obligations, whether political, economic or cultural. While the human rights system and its attempts to advance compliance with human rights laws and norms provide important context for the book, it is state engagement with action planning that is the specific subject of the book, and for very good reason. The idea of state-level action planning as a response to global commitments has proliferated across the UN system, now populates myriad fields and sub-fields of human rights, from climate change to women, peace, and security (WPS). The author argues that the idea of action planning for human rights compliance originated in the early instruments of the 1960s, which she identifies as specifically enshrined in a provision of the International Covenant on Economic, Social and Cultural Rights (ICESCR),2 as well as in the requirements of positive measures across the human rights instruments. She further evidences how over time through the constructive dialogues, various human rights committees have requested states to develop action plans in response to gaps in implementation of their human rights obligations. On the basis of these legal and normative advancements, the author even argues that there is a legal obligation for states to adopt action plans. Despite these developments within the human rights system and the proliferation of both the idea of action planning and action plans themselves across the human rights field, this book is the first to specifically examine the evolution of action plans, filling a curious and critical gap in human rights scholarship. In her examination of human rights action planning, Azadeh Chalabi takes as a premise that action plans are a tool critical to furthering implementation of human rights obligations, and that member states are required to adopt them as part of their ratification of global human rights laws. In doing...

Climate justice and human rights

Climate change as well as climate policies can have adverse effects on the human rights of certain population groups – and can exacerbate situations of injustice. As it stands today, the human rights regime is not set to sufficiently address these situations of climate injustice. In this article, I suggest a systematization of the normative climate justice literature that can be used as an analytical framework to evaluate current developments in human rights law and policy, and their potential to diminish inter-national, intra-societal and inter-generational climate injustice. I argue that further advancing procedural and substantive human rights obligations and corresponding enforcement mechanisms constitute one important way of establishing climate justice practices. Moreover, I suggest that the normative climate justice literature can be fruitfully used in International Relations to evaluate policy developments at the intersection between climate change and other policy fields.

Treaty Bodies, States and the Shaping of Customary Law

With the proliferation of international legal actors, each of whom has the potential to contribute to the creation of international law, it is timely to consider the influence of the UN human rights treaty bodies on the development of customary international law. These supervisory mechanisms warrant special attention as several of them enjoy an easily recognised status as the longest continual treaty supervisory mechanisms in the international legal system. The significance of treaty bodies has, in fact, made such an impact on the international community’s understanding of ‘law’ that multiple International Law Commission (ILC) studies have acknowledged the relevance of the human rights treaty bodies. As a starting point, this chapter delivers an account of the treaty bodies as primary interpreters of human rights treaties and contributors to the development of human rights law. Section 3 follows with consideration of the prohibition against torture as a human right that is also recognised as a customary rule of international law. Section 4 will present the interplay between States and the treaty bodies in terms of developing rules of customary international law. Section 5 will offer final comments on how the engagement between States and treaty bodies plays a clear, but often overlooked, role in the identification and development of customary international law.

Statelessness as a Human Rights Issue: A Concept Whose Time Has Come

The protection of stateless persons has long been understood as a challenge for the international community, yet for many of the past sixty years a prioritised focus on refugees has dominated, indeed arguably eclipsed, the plight and protection needs of stateless persons. Guy Goodwin-Gill has long argued for a refocus of international attention and effort on the plight, predicament and protection needs of stateless persons. In a seminal contribution over two decades ago he observed that at that time, statelessness was perceived by many as a mere ‘technical problem,’ yet ‘statelessness is indeed a broad human rights issue, even as it retains a distinct technical dimension.’ In this contribution, we examine the challenge set by Goodwin-Gill for the international community, namely, the need for greater recognition and protection of stateless persons, in light of developments over the more than two decades that have passed since his incisive analysis. We celebrate the positive developments and identify areas of ongoing challenge. We focus on the key initiatives he identified as requiring attention, and assess progress that has been made in relation to each, while concentrating predominantly on the need for closer attention to the relevance of developments in human rights law.

Child Rights and the Movement from Status to Agency: Human Rights and the Removal of the Legal Disabilities of Vulnerability

Using ideology as heuristic, a legal sociological approach is employed to critically evaluate a child’s legal status and its evolution since the eighteenth century. Four principal phases are identified: (1) legal ideology of individualism in the common law tradition; (2) movement from status to contract; (3) movement from status to rights; and (4) movement from status to agency. To strengthen legal agency both status and capacity are addressed. In the fourth phase, legal status has evolved in ways capable of facilitating children’s legal agency; it has evolved from being static to being dynamic, and is now determined by reference to public international law, rather than territorially. This article advances a universal norm of legal capacity to sue for violations of human rights, which is derived from the recent developments in human rights law. In the evolution of children’s rights we are presently witnessing the movement from status to agency.

An Introduction to Economic, Social and Cultural Rights: Overcoming The Constraints of Categorization Through Implementation

This chapter's objective is to give introduction of the subject to international human rights law because the study of economic, social and cultural rights is now very wide with a strong focus on a number of substantive areas. It focuses on the historical context of the development of human rights law, because that explains the block or hesitancy in the practice of many States, in the hope that jurisprudence and practice from others parts of the world will fire the enthusiasm for domestic law reform. The discussion on the domestic enforcement through justiciability is also skewed in favour of the cases from States which have begun to protect economic, social and cultural rights. The chapter takes essentially a chronological approach from the international to the domestic with a view to illustrate how an initial false categorization has been utilized to create tiers in the protection of human rights. Keywords: cultural right; domestic law reform; economic right; international human rights law; social right

Ireland: From Domestic Pre-Occupations to Wider Reception

Like so many of the other countries, the historical context played a large role in the reception of human rights in Ireland. Irish history is replete with various efforts to gain the right to self-determination, although not referred to in such language, from the United Kingdom of Great Britain from the seventeenth century onwards. Ireland could made no major contribution to the development of the UDHR, nor did it participate actively as it tried to assert itself and promote its cause for recognition in the international domain.There was another domestic issue which focused the attention of the nation on 22 December, 1948, the signing of the Republic of Ireland Bill which created the Republic of Ireland in 1949. The latter over-shadowed the international developments in human rights law.

Self-determination in International Law: A Democratic Phenomenon or an Abuse of Right?

In recent years, the right to self-determination has been prone to abuse because of the uncertainties as to its proper operation outside the decolonisation context. This article revisits the content and role of self-determination in light of the recent assertions of this right, with particular reference to Kosovo and Crimea. It examines different facets of this right, and whether it holds an intrinsic link to a democratic form of government. The right to self-determination encompasses the right of a people to choose freely their own political system and to pursue their own economic, social, and cultural development. However, states have no duty in positive international law to introduce or maintain a democratic form of government as a requirement for the realisation of the right to self-determination. Moreover, democracy, construed narrowly as the majority rule of an electoral process, is not a guarantee of the realisation of the right to self-determination. This article will test the extent to which democracy and the development of human rights law have impacted upon the content, limitations and exercise of the right to self-determination.

Globalisation and Human Rights: An Overview of its Impact

The development of human rights law in response to globalization is not new, and there is nothing inherent in the international system that would prevent further protective measures. A number of U.N. specialized agencies have also addressed the question of globalization. This global development is sometimes viewed as being responsible for exploitation, and other forms of human rights abuses. On the other hand, improvements in human rights are sometimes attributed to the spread of liberal ideas and movements, which is one of the key dimensions of globalization. Critics say human rights have been adversely affected by globalization for instance right to equality and other socio economic rights. The commitment of the United Nations to the indivisibility of human rights is reflected in the Universal Declaration of Human Rights. Human rights are the first responsibility of governments. While globalization offers great opportunities, the fact that its benefits are very unevenly shared and its costs unevenly distributed represents an aspect of the process that affects the full enjoyment of all human rights, in particular in developing countries. Inequality has risen during this present globalization period. In this paper an attempt has been made to highlight the impact of globalization on human rights regime. Normal 0 false false false EN-US X-NONE AR-SA /* Style Definitions */ table.MsoNormalTable {mso-style-name:Table Normal; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-parent:; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; text-align:justify; mso-pagination:widow-orphan; font-size:11.0pt; font-family:Calibri,sans-serif; mso-ascii-font-family:Calibri; mso-ascii-theme-font:minor-latin; mso-hansi-font-family:Calibri; mso-hansi-theme-font:minor-latin;}

The end of military justice in Europe: An agenda for juridical civil–military relations

This article suggests an agenda for juridical civil–military relations by considering how recent developments in human rights law in Europe breed new forms of juridical civil–military relations. The argument is that the human right driven recasting of legal authority over military affairs from military justice systems to civilian justice systems entwines these systems. Furthermore, that in so far the theories and studies of civil–military relations have not yet addressed the juridical dimension of civil–military relations as a subject of its own right, this entwining calls for a new subject in the study of civil–military relations, straddling the institutional entwining as well as the sociological dimension of practical cooperation.

No Room at the International Table: The Importance of Designing Effective Litmus Tests for Minority Protection at Home

Despite being at the forefront of the development of human rights law, minority rights as a sui generis discourse has slipped away from the forefront of the international human rights regime. This has occurred despite the continued salience of questions concerning identity in international law and politics. This paper argues that the closing down of space at international level has meant that further developments protecting individuals irrespective of their identity, are more likely to come at national level, and suggests theaters, theories, and models in various states, where minorities are currently negotiating policies that are worth considering and replicating elsewhere.

Land Rights and Nomadic Peoples: Using International Law at the Local Level

Introduction Despite a profound attachment to their lands and territories, nomadic peoples throughout the world and history have seen their land encroached on and reduced. International law has played a significant role in the non-recognition of the rights of nomadic peoples. For a long time international law has been based on territorial rules that were supporting the view that to be occupied a land needed to be used in a settled fashion, with the dominant view that lands occupied and used by nomadic communities were empty and therefore open to colonisation under the imperialist fiction of terra nullius (Gilbert 2007). The development of human rights law within the international legal framework has arguably changed this approach by focusing on the fundamental rights of the individuals rather than on state power to control its territory. Nonetheless, international human rights law does not refer to the specific situation of nomadic peoples, and no treaties include any specific rights for nomadic peoples. Instead, the focus is on universal human rights applicable to all. Under this universal framework of protection, nomadic peoples could find some protection for their specific nomadic lifestyle, notably under the banner of cultural rights. Cultural rights are an important part of human rights law, and they include the right to practise and maintain a specific way of life. Hence, while human rights law does not specifically mention a right to a nomadic lifestyle, the general and universal protection offered to all cultures should, in theory, protect a nomadic lifestyle. With this in mind, this short article is aimed at highlighting how international human rights, despite been drafted and negotiated in New York or Geneva, could be of relevance at the local level for nomadic communities when it comes to their rights to land. The article is a review of some of the main points that were developed in a workshop, during the Dana +10 meeting, on the relevance of human rights law when it comes to land rights for mobile indigenous communities. The first section examines the content of land rights under international human rights law. The second section focuses on the process rights. The third section focuses on practical ways to use international law at the local level. Land Rights as Human Rights Despite the lack of inclusion of land rights within the international treaties, land rights have nonetheless been examined by both international human rights monitoring bodies and international and national courts. Indirect protection for land rights has been included under the umbrella of other protected rights such as property rights or the right to food, for example. Probably the most relevant human right in the context of land rights is the right to property. However, the right to property has generated a lot of controversy since its inscription in the Universal Declaration on Human Rights in 1948, to the extent that the fight to property was not included in the two main human rights treaties of the 1960s, the two international covenants which form the main basis of international human rights law. The controversy was notably on whether property rights should be considered on an individual basis (Western approach) or through a more collective approach (Soviet approach). The fight to property has been largely developed under the Western view that property is individual and when it comes to land rights, it is predominately about protection of individual title to the land in a very settled manner (Gilbert 2007). By and large, the human rights jurisprudence on property rights is still largely based on this individualistic and largely settled approach to property rights. Property rights are about the rights of the individual, but in many situations nomadic and semi-nomadic communities are claiming a collective right to their lands, not individual title. Therefore, customary forms of land tenure developed to serve the way mobile peoples use the land, namely common property regimes, are not effectively protected under this approach. …

The Right to Life on the Battlefield

This article explores the development of human rights law in the context of examing a UK Supreme Court decision restricting the rights of soldiers. A judicial decision can arrest the development of law. In holding that the Human Rights Act 1998 does not apply to armed forces on foreign soil, the Supreme Court recoiled from an important opportunity to underline the true significance of human rights.

International Human Rights Law and Natural Resources Projects Within the Traditional Territories of Indigenous Peoples

This article explores the relevance of international human rights law to natural resource developments within the traditional territories of indigenous peoples. The author argues that international law prescribes standards that limit the authority of the state to grant resource rights to third parties and to approve resource projects within the traditional territories of indigenous peoples. In making this argument, the article examines interactions between recent developments in human rights law and the domestic legal system. The author approaches the topic through an examination of how several recent international decisions deal with conflict between territorial rights asserted by indigenous peoples and resource development permits granted by domestic governments within those territories. The article suggests that these decisions point to an emerging trend on the international human rights stage to interpret international rights instruments as requiring consideration of the relationship of indigenous peoples to the land prior to allowing resource exploitation.

International Administration of Holocaust Compensation: The International Commission on Holocaust Era Insurance Claims (ICHEIC)

The most important change in public international law over the past century has been a re-direction of its focus exclusively on states to a broadened scope of subjects including, most importantly, individual human beings. This shift in the status of individuals may be directly traced to the widely acknowledged need, in the aftermath of the Second World War, for a more adequate response to the Holocaust and other large-scale atrocities than that offered by traditional international law. Substantive concerns led to the development of human rights law. Victims' demands for compensation or restitution for the material injuries caused by genocidal Nazi persecution spurred a parallel procedural revolution. The innovation lay in national and international recognition of individuals' rights to assert such claims on their own behalf against their own governments, foreign states and foreign private entities.

I Book Review: The Development of Human Rights Law by the Judges of the International Court of Justice

I Book Review: The Development of Human Rights Law by the Judges of the International Court of Justice