International Human Rights Treaties Research Articles

A incorporação de acordos internacionais e do direito consuetudinário pela legislação doméstica em um ambiente legal pluralista: considerando a legislação das Ilhas do Pacífico em saúde pública como estudo de caso

Most Pacific Island countries which are members of the Pacific Islands Forum have a history as British colonies or protectorates. This delivers a legacy of transplanted British style public health laws from the first half of the twentieth century, which are out of date and in need of review and reform. Pacific Island countries also have a rich tradition of customary laws and methods of social organisation predating their colonial experience. Added to this pluralist legal environment, all Pacific countries have ratified some international human rights treaties or treaties creating obligations at international law in relation to health.

Delayed Devotion: The Rise of Individual Complaint Mechanisms within International Human Rights Treaties

The lyrics of “Delayed Devotion,” a song by the artist Duffy, speak of a woman’s decision to end a relationship in which, it seems, her partner only began to realize her value as she prepared to leave. There are doubtless many situations in which these lyrics, and the story they tell, are applicable. One such situation is manifested in international human rights law, particularly in regard to the rise in the creation and use of individual complaint mechanisms as a part of international human rights treaties. As this article explains, these lyrics are applicable in the individual complaint mechanism context because the increase in creating these procedures for specific groups through specific conventions indicates a sense that the devotion of the international community to implementing the rights guaranteed in foundational human rights has been delayed. At the same time, the increase in individual complaint mechanisms indicates that individuals are being provided with a greater ability to penetrate the international human rights law system that has for so long regarded them as only peripheral actors to be given rights rather than as actors having the agency to claim these rights at the international level. In sum, the result is a steady penetration of the international system by individuals, albeit through a system that is designed by international actors and therefore has structural limitations to this interaction. Although clearly the structure of the international law system mandates that the individual complaint system is itself structured in a way that is essentially state-centric, it is argued that the increasing prominence of the individual in international human rights law is a discernible trend that stands to alter the understanding of the international system. This prominence, however, is based on a greater sense of individual empowerment than the language of individual rights that has been traditionally used in international human rights law. The article argues that the increase in individual prominence is certainly laudable but that, by attaching this increased individual penetration of the international human rights law system to an ever-increasing series of specialized conventions, there is a significant risk of fragmenting the concept of the international human rights law system. Instead, it is argued that the individual, as the foundation of the human rights and dignities that are the backbone of international human rights law, should not need to seek specialized avenues of redress, but rather should be able to penetrate the international law system based on his basic identity as the holder of human rights and human dignity. This is especially so because these concepts of essential human rights and human dignity are at the core of the entire international human rights law system. This recommendation stresses both the internal status of people as holders of human rights and human dignity while also doing away with the need to create new quasi-judicial structures that are themselves potentially limiting depending on the ways in which they are drafted and function.

Extraterritorial Use of Force against Non-State Actors

EXTRATERRITORIAL USE OF FORCE AGAINST NON-STATE ACTORS BY NOAM LUBELL (OXFORD, OK: OXFORD UNIVERSITY PRESS, 2010) 320 PAGES. PRICE AU$143.95 (HARDBACK) ISBN 9780199641222. In 2011, the liquidation of Osama bin Laden, the confirmation of the President of the United States' authority to detain non-state belligerents until the end of the war on terror, (1) and the unabated use of targeted killings by US and Israeli forces outside US and Israeli territory demonstrated the continued topicality of Noam Lubell's study of the extraterritorial use of force against non-state actors. At the same time, the continued controversy over the legality of these anti-terrorist measures shows that an international consensus on the legal limits of the war on terror remains elusive. Undoubtedly, in order to stand a chance of success, legal frameworks must be pragmatic--that is, must pay sufficient attention to states' desire to uproot the terrorist threat, while paying due regard to humanitarian considerations. It is exactly such a framework that is developed by Lubell, and policy-makers and military planners may do well to draw on it. While Lubell's book is very topical indeed, states' use of force against non-state armed groups and individuals located outside their borders is not an entirely new phenomenon. After all, the seminal case of self-defence in international law, the 1837 Caroline Case, involved the use of force by Canadian troops against (non-state) rebels on US soil. (2) Also, since the late 1960s Israeli forces have not shied away from carrying out targeted killings against (non-state) Palestinian militants. (3) But it was only after the September 11 attacks, and the start of US military action against al-Qaeda, that the permissibility of using extraterritorial force against non-state actors rose to prominence. (4) Such action raises a host of--at times interrelated--issues: the encroachment of another state's territorial sovereignty through a liberal interpretation of the right to self-defence, the difficulty of characterising terrorists as combatants or civilians, and the question whether armed activists operating abroad fall within the jurisdiction of states for purposes of applying human rights to them. Therefore, Lubell has approached his topic in a holistic way, examining the challenges to three branches of international law: the legal framework regulating the use of force (jus ad bellum), international humanitarian law ('IHL'), and international human rights law. These challenges can be, and have been, addressed ut singuli in different recent monographs. (5) But as those publications do not specifically focus on non-state armed groups, their activities and states' responses thereto may not receive the attention due to them. On the other hand, Lubell has to introduce, in a rather slim volume, a number of general concepts, such as the contours of self-defence and the extraterritorial application of human rights treaties. His monograph thus tackles questions that are not necessarily only germane to armed non-state actors (for example, the lawfulness of anticipatory self-defence or the reach ratione loci of international human rights treaties), and that have in fact been discussed in more detail and perhaps with more sophistication elsewhere. (6) Conversely, when a question is germane to non-state actors, such as the notion of civilians' direct participation in hostilities, the other focus of the book--extraterritoriality--somewhat disappears from view in Lubell's discussion. Lubell is not entirely to blame for this, however, as extraterritoriality is part and parcel of the nature of IHL and is accordingly not controversial; indeed, IHL could hardly serve a regulatory function if it could not be applied to the armed activities of states outside their borders. The most striking aspect of Lubell's book is perhaps his reluctance to plead in favour of an overhaul of the law as far as projecting extraterritorial force against non-state actors is concerned. …

Babes with Arms: International Law and Child Soldiers

This article examines advances in preventing children from participating in armed conflict. It references international human rights treaties, UN Security Council resolutions and jurisprudence from international courts to chart the course by which recruiting child soldiers became an international crime. At the same time, it calls on UN bodies – and the states that comprise them – to implement some of the many resolutions and veiled threats leveled at various groups and militias that use child soldiers.

Human Rights and Intellectual Property Law in the Globalized Era

Human rights and intellectual property have on the whole evolved largely independently. Intellectual property rights framework have never emphasized the existence of links with human rights and generally stopped at noting the socio-economic dimension of intellectual property protection. On the human rights side, certain links with intellectual property rights were made early on with the introduction of intellectual property rights clauses in the international human rights treaties. Nevertheless, it is only in the context of emerging crises linked to the role of intellectual property rights in the realization of the rights to food and health in particular that links between the two fields have been explored in a much more systematic way. Our abstract considers questions related to the links and the impacts of existing intellectual property rights on the realization of human rights. It analyses in particular links between medical patents and access to drugs, a component of the human right to health. The second section moves to analyze issues related to the recognition of intellectual property rights as human rights. It considers in particular the proposed general comment of the Committee on Economic Social and Cultural Rights (ESCR Committee) and the broader implications of human perspective, for instance, for traditional knowledge holders.

The United States and Human Rights Treaties: Race Relations, the Cold War, and Constitutionalism

The United States prides itself on being a champion of human rights and pressures other countries to improve their human rights practices, and yet appears less willing than other nations to embrace international human rights treaties. Many commentators attribute this phenomenon to the particular historical context that existed in the late 1940s and early 1950s when human rights treaties were first being developed. These commentators especially emphasize the race relations of the time, noting that some conservatives resisted the developing human rights regime because they saw it as an effort by the federal government to extend its authority to address racial segregation and discrimination in the South. As this essay explains, the guarded and qualified U.S. relationship with human rights treaties stems not only from a particular moment in history but also is a product of more enduring, and less obviously problematic, features of the U.S. constitutional system. 1. This essay considers the history of the U.S. relationship with international human rights treaties. This relationship is sometimes described as being paradoxical or even hypocritical, in that the United States prides itself on being a champion of human rights and pressures other countries to improve their human rights practices, and yet appears less willing than other nations to embrace international human rights treaties. The United States did not begin to ratify any of the major human rights treaties until the late 1980s, and it still has not ratified a number of them, including the

The United States and Human Rights Treaties: Race Relations, the Cold War, and Constitutionalism

The United States prides itself on being a champion of human rights and pressures other countries to improve their human rights practices, and yet appears less willing than other nations to embrace international human rights treaties. Many commentators attribute this phenomenon to the particular historical context that existed in the late 1940s and early 1950s when human rights treaties were first being developed. These commentators especially emphasize the race relations of the time, noting that some conservatives resisted the developing human rights regime because they saw it as an effort by the federal government to extend its authority to address racial segregation and discrimination in the South. While this historical claim is not inaccurate per se, it provides an incomplete picture in that it under-emphasizes the Cold War fears that many people had at the time about the spread of communism abroad and the threat of totalitarianism at home – concerns that, fairly or unfairly, became linked to the developing human rights project. More importantly, an emphasis on the particular historical context of the late 1940s and early 1950s does not explain why the complicated U.S. relationship with human rights treaties has persisted even after the end of racial segregation and after the end of the Cold War. As this essay explains, the guarded and qualified U.S. relationship with human rights treaties stems not only from a particular moment in history but also is a product of more enduring, and less obviously problematic, features of the U.S. constitutional system.

Human Rights and Southern Realities

The proliferation of international human rights treaties, committees and courts over the last sixty years represents enormous achievement. International human rights laws are now asserted throughout the world by individuals of many cultures and traditions. Yet, at the same time international human rights ideas and principles continue to have difficulty in manifesting their relevance in the daily lives of those who are geographically and culturally distant from international institutions Two new books - William Twining’s Human Rights, Southern Voices: Francis Deng, Abdullahi An-Na’im, Yash Ghai, Upendra Baxi, and Helen Stacy’s Human Rights for the 21st Century - address aspects of this paradox and lay the foundations for exciting changes in the international human rights regime to facilitate greater human rights permeation and legitimacy for actors globally in the 21st century. In this Essay, I provide a critical account of some important remaining gaps in the literature on international human rights theory and practice. I argue that notwithstanding the fact that giving voice to those oppressed is a main function of the movement and that the meaning of human rights must be grounded in local culture at grassroots levels, relatively little scholarship bases its analyses on the discourse of the subjects of international human rights law and particularly those actually involved in human rights violations cases in the global South. What are victims’ and legal actors’ conceptions and expectations of human rights and their agendas and experiences in processing their cases? What factors affect their attitudes and behavior in this context? Such knowledge is critical in order to obtain a comprehensive picture of the workings of human rights on the ground. It is also key to enable greater comprehension of local, Southern actors’ needs, epistemologies and micro-realities. As such, bottom-up perspectives from local actors must inform macro-level scholarly conversations on human rights as well as policies aimed at improving respect for human rights at grassroots levels. I provide some such data from a forthcoming book, grounded in interpretive theory and based on the perspectives of legal and lay actors involved in the processing of human rights violation cases of violence against women in India. Actors’ discourses contextualize some of the issues set out in both volumes. The Essay further links actors’ understandings and objectives to norm diffusion theory in the international relations literature and to vernacularization theory in the law and anthropology literature, which like both reviewed books engage the issue of the permeation of human rights standards to grassroots levels. The Essay additionally argues that on the basis that a culturally plural universalism in human rights is an acceptable aim, we are in dire need of a new integrated analytical framework. This framework must be grounded not only in the perspectives of Southern actors, but must simultaneously imbed their epistemologies within the realities of human rights case processing in the legally pluralistic global South. This involves not only formal courts but also informal justice or quasi-legal non-State justice systems processing human rights cases. Drawing on insights from both books, I conclude with a call for more research into Southern actors’ human rights perspectives, including interpretive accounts of their contextual realities. Such knowledge is critical in order to innovatively engage the controversies in international human rights theory and practice and to assist human rights organizations and advocates to become more relevant to the poor and the oppressed. As such, they will be better able to effect realizable change for the subjects of human rights in the global South.

An EU Right to Interim Protection during Appeal Proceedings in Asylum Cases?

AbstractDoes EU law provide for a right to interim protection in asylum cases and if so under what circumstances and in what form? These questions are addressed in this article on the basis of relevant EU legislation, the EU principle of effectiveness and the right to effective judicial protection, and finally international human rights law, which serves as a source of inspiration for these principles. It is argued that Article 39 of the Procedures Directive, interpreted in the light of the EU principle of effectiveness and the EU right to effective judicial protection, requires a remedy with automatic suspensive effect in all asylum cases, regardless of their arguability. It is therefore conceivable that this provision offers broader protection than the right to an effective remedy, laid down in international human rights treaties, such as Article 13 ECHR.

Race, Marriage, and Sovereignty in the New World Order

Racially restrictive marriage laws lay at the intersection of state claims of domestic sovereignty and federal obligations to protect the constitutional rights of citizens. In 1948, California overturned its antimiscegenation law, citing, in addition to the Fourteenth Amendment, the United Nations Charter. This decision sparked a contentious discussion about the relationship of human rights norms to racial conventions in the United States, and triggered a debate about the peril of international law that resulted in an effort to amend the Constitution and limit the treaty-making powers of the president. Both the constitutional and the international logics of individual human rights threatened local custom and energized political opposition. American stigmatization of international human rights norms and treaties was rooted directly in the civil rights struggles in the United States and reflected the potential of international organizations to assault domestic racial conventions at their foundations.

Within but without: human rights and access to HIV prevention and treatment for internal migrants

Worldwide, far more people migrate within than across borders, and although internal migrants do not risk a loss of citizenship, they frequently confront significant social, financial and health consequences, as well as a loss of rights. The recent global financial crisis has exacerbated the vulnerability internal migrants face in realizing their rights to health care generally and to antiretroviral therapy in particular. For example, in countries such as China and Russia, internal migrants who lack official residence status are often ineligible to receive public health services and may be increasingly unable to afford private care. In India, internal migrants face substantial logistical, cultural and linguistic barriers to HIV prevention and care, and have difficulty accessing treatment when returning to poorly served rural areas. Resulting interruptions in HIV services may lead to a wide range of negative consequences, including: individual vulnerability to infection and risk of death; an undermining of state efforts to curb the HIV epidemic and provide universal access to treatment; and the emergence of drug-resistant disease strains. International human rights law guarantees individuals lawfully within a territory the right to free movement within the borders of that state. This guarantee, combined with the right to the highest attainable standard of health set out in international human rights treaties, and the fundamental principle of non-discrimination, creates a duty on states to provide a core minimum of health care services to internal migrants on a non-discriminatory basis. Targeted HIV prevention programs and the elimination of restrictive residence-based eligibility criteria for access to health services are necessary to ensure that internal migrants are able to realize their equal rights to HIV prevention and treatment.

Examining Australia's Compliance to the International Covenant on Economic, Social and Cultural Rights: Problems and Potential

One of the ways through which human rights can be protected is through international human rights treaties. This article addresses the implications of ratifying such treaties by examining the ratification of the International Covenant on Economic Social and Cultural Rights and Australia's compliance with this convention. Rather than introducing the rights in the ICESCR into law Australia has adopted an indirect method of protecting rights. This paper will analyse the effectiveness of this approach and argue that Australia's approach is not achieving substantive equality and is weakening economic, social and cultural rights. The paper will argue that legally enforceable rights are a powerful force in the protection of human rights.

What Will States Really Do For Us? The Human Rights Enterprise and Pressure from Below

International human rights standards and treaties have been plagued with disputes over the relevance and power of international law with regard to state sovereignty. ! ese disputes commonly result in states’ failure to realize the rights and standards outlined by such human rights instruments. What if states cannot or will not provide fundamental dignities to their people? Moreover, how does global restructuring a ect states’ ability to implement human rights? We explore these questions through what we call the “human rights enterprise,” which includes confl icts between rulers and the ruled over the realization of human rights practice. As such, human rights are often developed through the struggles of grassroots organizations and non-elites from below, not simply from the compassionate actions of states to respect their international agreements.

Global Human Rights and State Sovereignty: State Ratification of International Human Rights Treaties, 1965–20011

This research seeks to understand the factors that lead nation‐states to ratify international human rights treaties in the contemporary world, despite their potential cost for state sovereignty. We argue that normative pressure from international society, along with historical contingencies during the Cold War, encouraged many states to ratify these treaties. We present an event‐history analysis of ratification of seven key international human rights treaties in 164 countries in the period between 1965 and 2001. The results lend support to the world society argument as well as to our historical argument and also specify that normative pressure and imitation have been important factors shaping states’ decisions to ratify international human rights treaties.

Authority of International Institutions: The Case for International Human Rights Treaty Bodies

International human rights law treaties and their monitoring institutions raise important questions about the moral standing of institutions outside of the state and on what terms such institutions should be understood in political theory. The unmatched institutional nature of human rights treaty bodies presents a challenge for political theorists as it is not clear what the theoretical conception of these institutions ought to be and what concepts are relevant in assessing the point of these institutions. The aim of this article is to supply an argument for what the appropriate conception of authority applied to human rights bodies, as a distinct type of international institution, should be. For this, we survey the repertoire of moral reasons available in assigning authority to human rights treaty bodies in the current literature and assess the strengths and weaknesses of such reasons. The central argument of the article is that a successful theory for the justification of authority of international institutions has to account, firstly, for the very purpose of the authoritative relationship and, secondly, provide special and sufficient content-independent reasons to comply with the directives of these institutions.

Disability rights in a global context

During recent decades, a number of momentous developments have taken place in the global disability rights movement; culminating in the adoption of the United Nations (UN) Convention on the Rights and Dignity of Persons with Disabilities on December 13 2006. This convention has been viewed as the fi rst international human rights treaty of the 21st century (CBC News, 2006). It touches on almost the whole gamut of issues related to empowering people with disabilities, such as:

Sexual Rights: Striking a Balance

ABSTRACT Sexual rights, the first of the eight Montreal Declarations adopted by the World Association for Sexual Health (WAS), are grounded within existing international human rights treaties, covenants and conventions and contribute to achieving the Millennium Development Goals (United Nations, 2005). Despite their apparent contribution to sexual health, sexual rights are particularly contentious, challenged both by nations that do not share the western enlightenment tradition and agenda and by critical theorists who raise concern about their essentializing influence on sexuality. Examples are presented from around the globe of conditions and practices that could be corrected with commitment to sexual rights. Moving such commitment forward must be done with caution, recognizing that sexual rights may be both liberatory and oppressive. It is argued that advancing a sexual rights agenda requires an articulation of the location of sexual rights within existing human rights commitments, a recognition of both the possibilities and the limitations of such an approach, identification and mobilization of a consensus reaching process, and active monitoring and evaluation of rights-based approaches to sexual health. A balance is required between rights and obligations, and between caring for self and caring for others.

Human Rights and Social Provision

Human rights queryfalse are typically presented in terms of entitlements, correlative duties, claims, “trumps,” and remedies. 1 These framings, which draw principally on law and philosophy, emphasi...

UN Peace Operations and Security Council Resolutions: A Tool for Measuring the Status of International Human Rights Law?

This article argues that Security Council resolutions adopted in the context of UN peace operations may be considered a useful instrument by which to assess political acceptance of international human rights law. By analysing all peace resolutions' adopted since 1945, four distinct periods may be discerned which illustrate the development of the Council's approach to human rights (1945–1989; 1990–1995; 1995–1998; and 1998-present). Such analysis reveals, however, that human rights are still accorded a lower status with respect to other bodies of international law, and international humanitarian law in particular. This is reflected in a persistent refusal of the Council to avail itself of explicit legal human rights language and by avoiding references to international human rights treaties. Human rights thus appear to constitute a convenient smorgasbord a la carte behind which States (the P5) may pick and choose according to political interests and shy away from legal responsibilities. Nevertheless, it is suggested that UN ‘peace resolutions' may indirectly, through various bodies, enhance the status of international human rights law: the International Court of Justice, the UN human rights treaty body system and human rights components of UN peace operations.

From Compromise to Principle: Clarifying the Concept of State Jurisdiction in Human Rights Treaties

This article analyses the notion of state jurisdiction in international human rights treaties, which is central for determining their territorial scope of application. In that regard, the article provides an overview of jurisdiction clauses in the relevant treaties and examines their historical origins. It then attempts to distinguish this notion from state responsibility and from the concept of state jurisdiction in general international law.