International Protection Of Human Rights Research Articles

Contribution of Hersch Lauterpacht to the Development of International Protection of Human Rights

The article is devoted to Hersch Lauterpacht's contribution to the development of the concept of international protection of human rights and international human rights law in general. The study analyzes relevant norms of international law and scientific works of Hersch Lauterpacht; considerable attention is paid to the reviews of leading scientists on Hersch Lauterpacht's books "An International Bill of the Rights of Man" published in 1945 and "International Law and Human Rights" in 1950. The purpose of the article is to, based on the analysis of Hersch Lauterpacht's scientific works, investigate his contribution to the development of the concept of international protection of human rights. Both general (dialectical and systemic-structural) and special (historical-legal, comparative-legal and formal-dogmatic) scientific methods were used in the research. The article defines the prerequisites for Hersch Lauterpacht's choice of international human rights protection as his scientific interest, explores the peculiarities of the scientific environment within which Hersch Lauterpacht developed the concept of international human rights protection, outlines the main doctrinal approaches to the control mechanism of human rights protection. Particular attention is paid to the progressiveness of Hersch Lauterpacht's concept of international control over the observance of human rights and obstacles to its establishment at the universal level. On the basis of the conducted research, the conclusion was formulated that Hersch Lauterpacht, among a number of scientists of the middle of the 20th century who developed the concepts of international legal regulations of human rights, most thoroughly, after investigating the genesis of the formation of human rights and using natural law approaches, proposed a model of effective international protection of human rights. Hersch Lauterpacht's views on the need for real guarantees of human rights at the universal level, rather than a simple declaration, were quite advanced and far ahead of their time. To a certain extent, they can be perceived as idealistic since even today, the achievement of the same universal international standard of guaranteeing human rights (especially economic, social and cultural) is improbable.

International protection of human rights during armed conflicts

This article is devoted to consideration of issues that cover the most sensitive and popular topics of today, in particular, the protection of human and citizen rights during escalation, assistance in the protection of fundamental rights by the international representation. Respect and protection of human rights is one of the leading principles of international law, enshrined in international legal treaties. All countries must adhere to the principles of freedom, democracy, respect for human rights and fundamental freedoms.Human rights, which are enshrined in current international legal treaties, are the result of the long-term historical development of social and political thought, the gradual formation of standards that have become the norm for the life of a modern democratic society. The author examines the provisions of the most famous international documents related to the protection of human rights during an armed conflict: the Convention for the Protection of Human Rights and Fundamental Freedoms, the additional protocol to the Geneva Conventions of , relating to the protection of victims of armed conflicts of a non-international nature (Protocol II) of June 8, 1977 year, the International Covenant on Civil and Political Rights of December 16, 1966 and other international documents relating to armed conflicts of a non-international nature. The international system of human rights protection is part of the system of international relations as a whole, but on the other hand, it is a system of international law, forming one of its branches. There are three main points of view regarding the place of human rights in international relations. According to the traditional statistical approach, human rights are a matter of sovereign state jurisdiction and continue to be a secondary object of international relations. There is a need to ensure human rights under any circumstances. An important priority in international cooperation is the protection and guarantee of human rights during armed conflicts and conflicts of a non-international nature. To date, international law refers to armed conflicts with condemnation, aggression, and prohibits any kind of war in general. But unfortunately, this is our reality of modern stages of human development.

Consequences of the Constitutional Tribunal’s Ruling of October 22, 2020. On the Citizens’ Bill on Safe Termination of Pregnancy and Other Reproductive Rights

Abstract The ruling of the Polish Constitutional Tribunal of October 22, 2020 introduced a near-complete ban on abortion in Poland, as it removed from the law the embryopathological condition that allowed abortion when the fetus had an incurable, severe disease. The ruling raises a number of questions regarding the recognition of international protection of human rights, the equal protection status of human rights, and the principle of trust in the state. The Tribunal’s ruling resulted in massive public protests in Poland, the adoption of condemnatory resolutions by the European Parliament, and the submission of a new bill by members of the parliament from the opposition groups. The purpose of the paper is to show the questionable ruling issued by the Constitutional Tribunal from the perspective of protection of human rights and the attempts of opposition MPs to change the legal order. The Tribunal’s ruling violates women’s human rights and is therefore a form of discrimination against women. Attempts by opposition MPs to “civilize” the right to abortion have proved unsuccessful. The jurisprudence of the European Court of Human Rights may establish a breakthrough, as the Tribunal has received a complaint concerning the prevention of abortion on embryopathological grounds in connection with the ruling of the Constitutional Court of October 22, 2020.

The Massive Influx of Global Refugees from Developing Nations; An existing Gap in the United Nations role in promoting Universal Human Rights.

Purpose: Refugee issues are international emergency significantly disrupting socio-economic structure of the receiving States and governments struggling to manage the impact of a nearby conflict and addressing development challenges. This study is aimed at analyzing the global predicament of refugees, assess the existing legal framework at global, regional and national scale through the existing organizations and their roles like United Nation and African Union. Since every State has a responsibility of protecting the rights of its citizens, they are forced to flee for safety in case of threats prompting the host country to step in ensuring ‘refugees’ basic rights are protected as per international protection of human rights (the 1951 Convention and 1967 protocol). Humanity’s protection is longstanding traditions and shared value in our cross-cultural traditions, beliefs and now part of international law as per the United Nations’ Declaration of Refugees and Migrants 2016 reaffirming the fundamental principle of refugee protection, at a time when the population seeking safety is burgeoning.
 Methodology: This is a desk research where data was collected from the existing information.
 Findings: The findings indicate that over 66 million people displaced by conflict, violence and persecution, a third this group has fled across borders as refugees, the magnitude and complexity of forced displacement is linked to prevalence, scale and longevity of today’s conflicts, and the inability of the international community to find the unity of purpose necessary to resolve them. About 80 per cent of people running away from their countries, 60 per cent of them are children in comparison to around one third of the world’s general population.
 Unique Contribution to Theory, Policy and Practice: The study adopted an interlink of the ‘Contemporary Migration Theories’ which states that high fragmentation of migration is due to either micro, macro, and political causes and effects on one hand, and between micro-individual and macro-structural approaches on the other. A lot must be done to reduce the daily increasing number refugees around the world. Specifically, the study takes keen interest in discussing the plight of Rohingya people in Myanmar.

International protection of human resources rights to overcome poverty in the context of society awareness under conditions of digitalization

The article is devoted to the research of international protection of human rights in overcoming poverty in the context of public awareness and digitalization. Analyzed certain provisions of international regulations and domestic legislation, the authors found that these documents underlined the poverty line, and human resources that are below this limit are considered to be poor. It is established that today in Ukraine there is activity of the state in reducing social inequality among human resources, there are also reforms to deepen the stratification of society, but there is no effective mechanism for implementing the proposed approaches by public authorities. The article proposes to take the three main goals of sustainable development as the main components of models that will help eradicate poverty in the world and in Ukraine as well. In particular, the authors proposed to take into account the following provisions: 1) overcoming the extreme poverty line as an economic and social component of the country; 2) fighting inequality and injustice in the context of protecting international human rights; 3) fighting climate changes. Taking into account the proposed provisions at the national level will help accelerate the achievement of the world’s global goals of sustainable development. The authors improved the interpretation of the concept of “information inequality”, which they proposed to understand the differences in access to information, sources of its accumulation by society, its incomplete usage in practice due to lack of awareness. It is proved that this is the basis for ignorance or lack of information of the poor layers of society. The human resources’ usage of the proposed interpretation in the article in their daily life will create the association that it is their lack of information, in an active digital environment, causes the effect of “insufficient power of the individual in society”.

International Human Rights Protections Find Support in Hobbes’ Leviathan

In her paper “Sovereignty and the International Protection of Human rights”, Cristina Lafont argues that “The obligation of respecting human rights in the sense of not contributing to their violation seems to be a universal obligation and thus one that binds states just as much as non-state actors.” In this paper, I argue that one can find support for this claim in Thomas Hobbes’ Leviathan. This requires a different reading of Leviathan than the one that is typically performed by realist thinkers, such as, for instance, Morgenthau and Mearsheimer, who read Hobbes as someone who has no regard for human rights. Contrary to the realists, I suggest a reading of Leviathan that shows that there is in fact a normative underpinning of Hobbes’ view of sovereignty, to the extent that Hobbes can be taken to be one of the forerunners of international law. I do this by showing how Hobbes’ reasons for establishing sovereign power, and not his conclusions on how to organize sovereign power, may give support to Lafont’s claim that an obligation to respect human rights is not confined to the sovereign state, but also to extra-state institutions.

International Regime on Human Rights System for the Protection of Women’s Right

The formation of the United Nations brought about the protection of International Human Rights. The United Nations in its bids to protect International human rights established mechanisms to address human rights issues. These mechanisms have played vital roles in the elimination, promotion and protection of women’s rights. However, in theory these mechanisms exist to address women’s rights issues but in reality the result has been less than the system’s expectations. This failure has raised concerns for the protection and enforcement of international regime on women’s rights. The UN human rights system has also been actively involved in monitoring the core international human right treaties by state parties. The state parties that have ratified the treaties has an obligation to ensure the reform of discriminatory laws and practices; submit periodic reports to the treaty bodies which reviews State action including legislation and policies, reviewing States report on their compliance with international standard, visiting countries to carry out fact-finding, promoting human rights and making policy recommendations to States. This article will give a better understanding of International regime on women’s rights through the working of the United Nations human rights mechanism that is categorized into charter based bodies and the treaty based bodies. These human rights mechanisms work together for the promotion and protection of women’s rights. However, despite the human rights instrument provisions to protect the rights of women, there are some challenges that may impede the enforcement of these rights. Therefore, this article has identified some of these challenges and will proffer solutions to these challenges.

International protection of human rights during armed conflicts

This work examines an issue that affects the most important problems of today, in particular, the relationship between the norms and principles of international law and human rights and their basic freedoms during international armed conflicts, in connection with the violation of Article 2 of the Convention on the Protection of Human Rights and Fundamental Freedoms. One of the important issues of the relationship between the norms and principles of international human rights law and their fundamental freedoms, which apply to Article 2 of the Convention on the Protection of Human Rights and Fundamental Freedoms and violate it, is highlighted. The purpose of this work is to identify problems related to the protection of human rights and freedoms during armed conflict, on the basis of the analysis of current international and national legislation, including taking into account specific features in Ukraine. One of the main analytical methods is a comparative analysis that analyzes international humanitarian law and international human law by comparing national practice of implementing human rights protection systems with a legal framework governing the subject of research at several national and international levels. It is noted that international humanitarian law plays an important role in respecting and regulating human rights during armed conflict. This article explains the main differences between international humanitarian law and international human rights. It analyzes the protection of human rights in accordance with international human rights and international humanitarian law, as well as retrospectively analyzes their formation. According to the results of comparative analysis, the conclusion was made that t he overwhelming number of modern armed conflicts is not international in nature, which is defined Features of human rights protection in these conditions. The formation of legal regulation and its c hanges from the very beginning of the armed conflict in Ukraine and the state of human rights protection .

Damage to Seafarers’ Health and Labor Rights and Interests: Reflections on Seafarer Changes Hindered by COVID-19

The outbreak of COVID-19 in early 2020 seriously hindered the normal and orderly shift of international seafarers. The accident of international seafarers’ change reflects the lack of governing of various countries in the protection and management of the human rights of international seafarers, behind which lies legal problems such as the poor operation of the international cooperation system for epidemic prevention and control onboard, and the lack of protection of seafarers’ basic rights and interests. Considering seafarers as the maintainer of global freight& supply chain, the international community and governments of various countries should take the protection of international human rights as the basic principle, actively implement the specific requirements of international cooperation, accelerate the improvement of social assistance system for international seafarers, protect the life and health rights of the seafarers from damage, optimize the system for international seafarers change In the context of normalization of the epidemic, safeguard the labor rights and interests of seafarers such as the right for rest and vacation, pay attention to safe manning of ships and overfatigue of seafarers and effectively improve the capacity for global marine security governance under special circumstances.

Rodzaje testów judicial review a zasada proporcjonalności

Judicial review in the jurisprudence of the US Supreme Court can take the form of one of three formulas for examining an act or action of an authority (strict scrutiny test, intermediate scrutiny test, or rational basis test). In the context of the constitutional review each of these tests requires an analysis, of three essential aspects: what kind of individual interest is limited, what form of public interest legitimation is required, and how the means and the purpose so indicated are related. A detailed analysis of these standards of proportion, jurisprudentially developed and evolutionarily tightened, in confrontation with the principle of proportionality used in European constitutions (and documents on international protection of human rights) allows to formulate theses about which standard is stronger, which one creates a barrier providing better protection of individual autonomy, and which is more resistant to ‘steps backwards’ in this respect.

INTERNATIONAL LEGAL MECHANISM FOR ENSURING HUMAN RIGHTS

Background. The problem of protecting human rights has existed throughoutthe existence of mankind. Modern globalization affects the effectiveness of international institutions in the field of human rights. After all, the rapid processes of development and adoption of international documents in the field of human rights require not only worldwide recognition, but also unquestioning implementation. In this regard, the study of the mechanism for exercising the powers of the UN Human Rights Council in the temporarily occupied territories of Crimea and Donbas is especially relevant. The aim of the article is to establish a mechanism for exercising the powers of the UN Human Rights Council to respect and ensure human rights in Ukraine, in particular in the temporarily occupied territories of Crimea and Donbas. Materials and methods. Both general and special legal methods of cognition were used during the research. The normative basis of the study were international treaties, international law and the work of domestic and foreign scientists. Results. International protection of human rights is one of the most important branches of public international law. The creation of the United Nations has opened a new page in the field of human rights institutions. In order to promote and ensure human rights in Ukraine, in particular in the temporarily occupied territories of the Autonomous Republic of Crimea and Donbas, the UN Human Rights Council implements a number of mechanisms: closely cooperateswith the UN High Commissioner for Human Rights. periodic inspections. The UN Human Rights Council serves as a forum for discussing thematic issues on all human rights. Thus, within the high-level segment of the UN Human Rights Council, on February 23, 2021, for the third year in a row, the UN General Assembly debated on the agenda item «Situation in the Temporarily Occupied Territories of Ukraine» initiated by our state. Within the framework of this event, support for the sovereignty and territorial integrity of Ukraine was expressed. Conclusion. Ukraine’s cooperation with the UN Human Rights Council is increasing pressure from the international community to respect the rights of indigenous peoples, national minorities, social human rights, democracy and the rule of law. During the Russian aggression on the territory of Ukraine, the UN Human Rights Council adopted a resolution «Cooperation with Ukraine and its assistance in the field of human rights», an agreement was concluded between the Government of Ukraine and the Office of the UN High Commissioner for Human Rights. Ukraine. Thus, despite the recommendatory nature of the powers of the UN Human Rights Council, this international institution significantly affects the level of human rights in the temporarily occupied territories of Ukraine, and contributes to the further development of human rights in Ukraine. Keywords: human rights, UN Commission on Human Rights, UN HumanRights Council, Office of the UN High Commissioner for Human Rights, UN Human Rights Monitoring Mission.

Jusnaturalism as the foundation of the concept of international protection of human rights in H. Lauterpacht’s works

Prominent international law scholar H. Lauterpacht devoted most of his exploratory work to the issue of human rights in international law.This article reveals H. Lauterpacht’s views on the role of international law in the recognition and consolidation of human rights and the role of jusnaturalism as the basis of international human rights law. Analyzing the works by H. Lauterpacht, we can say that the scholar was the founder of international human rights law. Natural law and natural human rights, according to H. Lauterpacht, have been the unchanging basis of human rights of all times.The origins and periodization of jusnaturalism in the works of leading international law scholar are considered. The main statements of the representatives of the natural law concept of different times, in particular, the basic ideas in the works of Socrates, Aulis Aarnio, Francisco de Vitoria, Francisco Suarez, Alberico Gentili, Thomas Hobbes, Samuel von Pufendorf, Hugo Grotius are outlined.The views of prominent philosophers are the foundation of the concept of jusnaturalism. 
 Numerous supporters of the concept of natural law in different periods of history testify to its importance at every stage of human rights development.International law in this matter is a kind of second stage of recognition and protection of human rights, after recognition in the national law of states.International law is designed to consolidate the rights granted by nature to the human in the international arena.H. Lauterpacht saw the real recognition and protection of human rights by enshrining them in an international document signed by all countries of the world.The scientist proposed a draft international document on the recognition of human rights at the international level called International Bill of the Rights of Man. The provisions proposed in this document were later enshrined in international instruments such as the Universal Declaration of Human Rights of 1948, the International Covenant on Economic, Social and Cultural Rights of 1966 and the International Covenant on Civil and Political Rights of 1966.

Hacia una coordinación efectiva entre regímenes especializados para garantizar una interpretación armoniosa en el derecho internacional público moderno

El derecho internacional moderno se caracteriza, en gran parte, por sus regímenes especializados. El derecho comercial internacional, la protección internacional de derechos humanos y el derecho ambiental internacional son sólo algunos de los ejemplos más importantes de áreas aisladas en el derecho internacional, mismas que se caracterizan por su reclamo de hegemonía. El presente artículo analiza la interacción entre los diferentes regímenes, concluyendo así que el derecho internacional actual carece de las capacidades para coordinar de manera efectiva tales regímenes. En este mismo sentido, argumentaremos que resulta imprescindible una necesaria e imperiosa coordinación entre los diferentes mecanismos de solución de controversias. Una coordinación efectiva entre regímenes especializados se podrá llevar a cabo mediante reglas como el forum non conveniens del common law, y no a través de criterios de secuencia temporal, como lo establece la Convención de Viena sobre el Derecho de los Tratados.

Sub-regional organisations and the responsibility to protect: A case for the localisation and normative repatriation of sub-regional authority for coercive measures

SUMMARY The adoption of the responsibility to protect by the United Nations General Assembly marked a key milestone in the advancement of human security and the international protection of human rights. The textual adoption by the UNGA, however, was skewed in favour of the world order as it existed at the adoption of the Charter of the United Nations. Key among the recommendations downplayed by the UNGA text is the place of regional and sub-regional organisations in the implementation of the responsibility to protect. The consequence has been that sub-regional organisations have often been sidelined and their position on conflicts overlooked by the United Nations Security Council in its authorisation of R2P-related interventions. This article utilises the differences between the original R2P concept and the R2P norm adopted by the UNGA as well as subsequent discourses and state practice flowing from these differences to argue for R2P's localisation in the African context and for the normative repatriation of the authority of sub-regional organisations to adopt coercive measures under R2P. The article uses the Economic Community of West African States to illustrate the potential for sub-regional organisations to implement R2P when accorded the requisite regional and international support. Key words: sub-regional organisations; responsibility to protect; norm localisation; norm repatriation; peace and security

The Legal Protection of Minorities from International Law and Arab Mashreq Perspectives

The international protection of human rights, including those of religious minorities, has mainly developed through instruments adopted under the framework of the United Nations. After clarifying the concept of minorities, this article focuses on the legal protection of minority rights, particularly of religious minorities, under international instruments. It sheds light on the participation of Arab Mashreq states in the preparation of these instruments, in terms of their position in the elaboration of the instruments, and their multiple reservations. It offers an objective analysis of the issue of religious minorities in the Arab Mashreq region, and the necessity to respect their rights fully in order to build democracy and states of citizenship.

International Protection of Human Rights and the Activity of Transnational Corporations.

INTRODUCTION. This study analyzes available remedies for victims who have suffered harm from business activity of transnational corporations. The goal of this study is to evaluate the effectiveness of available remedies for the protection human rights of individuals from adverse impacts of the business activity of TNCs. To achieve the goal, it is necessary to fulfill the following tasks: to consider the obligations of TNCs in modern international law, the role of states in the protecting human rights against the business activities of TNCs, examine the content of the right to an effective remedy, and characterize the existing remedies for the individuals.MATERIALS AND METHODS. During the research the latest theoretical studies of leading Western scholars was analyzed, as well as the regulatory documents, recommendations and reports of the human rights treaty bodies, international human rights treaties and extensive court practice of the ECHR. For this study formal logical, general scientifi , comparative legal and private scientific methods has been applied. RESEARCH RESULTS. In recent years, the importance of soft law in the field of international business and human rights has been increasingly strengthened. The UN Guiding principles on Business and Human Rights have become the basis for a draft legally binding instrument to regulate, in international human rights law, the activities of transnational corporations. It should be noted that the latest innovations in the draft related to the introduction of environmental rehabilitation as one of the mandatory forms of redress. Indeed, when considering mass violations of human rights by transnational corporations, we oft n encounter with serious damage to the environment, as a result of which environmental rights are violated. Increasing cases of such violations have led to the need to improve international and domestic remedies.DISCUSSION AND CONCLUSIONS. The study concluded that a remedy would be effective if it would be affordable, acceptable, adequate and timely. An effective remedy against the activities of TNCs should provide an adequate compensation or the leveling of the damage caused and bring TNCs to account for human rights violations in order to ensure such compensation. In turn, access to remedies consists of two interrelated elements: the existence of a grievance mechanism that provides a redress for business-related damage and the availability to the mechanism by aff cted persons. Access to remedies should be provided without discrimination on any of the prohibited grounds and should take into account the situation of vulnerable groups. The approach to the calculation of compensation or the choice of remedy should be individualized, taking into account the social and legal status of the victim.

“Sustainable development” and globalisation processes

How do we relate globalisation to other types of mondialisation, such as communications and economics? The answer should be: any globalisation should be motivated by the general interest of humanity and striving to that aim. In practice, this means that international protection of human rights and environmental rights need not only jurisdictional (legal–political) but also, above all, ethical standards. Without it, a conflict between different types of globalisation could become damaging, almost dangerous. The very idea of the global village that has so well explained the phenomenon of mondialisation can assist in solving the problems that need to be addressed. One of the features of each village is the intense connection among the inhabitants. That phenomenon is now present globally, which is the essence of globalisation. That implies a global responsibility that must be implemented on the one hand by communities and the other by individuals, especially those who serve in the service of community — politicians. The crucial question arises, “How to define the responsibility of one and the others?” It is evident that at the top of the pyramid, there are major planetary problems whose solutions require the cooperation of all nations and countries. The straightforward phrase “Think globally, act locally”, expresses the rule of the fundamental game of the global world and its diversity — a possible ethic of sustainable development.

International Protection of Human Rights During the Covid-19 Pandemic Fight

Despite the efforts made by governments and international organizations such as public health groups: (CDC) and the World Health Organization (WHO), and the efforts of NGOs to combat and monitor the pandemic Covid-19, through what they allow National laws and international conventions, however, declaring emergencies based on an outbreak of the Coronavirus should not be used as a basis for targeting specific groups, minorities or individuals, nor should they serve as a cover for repressive action under the guise of protecting health, or be used to violate human rights, as a result of A reached reports regarding the imposition of restrictions on human rights during the pandemic Covid-19. How to Cite this Article Pubmed Style Ouarda Belkacem Layachi. Protection of Human Rights During the Covid-19 Pandemic SRP. 2020; 11(6): 1332-1338. doi:10.31838/srp.2020.6.194 Web Style Ouarda Belkacem Layachi. Protection of Human Rights During the Covid-19 Pandemic http://www.sysrevpharm.org/?mno=138033 [Access: March 29, 2021]. doi:10.31838/srp.2020.6.194 AMA (American Medical Association) Style Ouarda Belkacem Layachi. Protection of Human Rights During the Covid-19 Pandemic SRP. 2020; 11(6): 1332-1338. doi:10.31838/srp.2020.6.194 Vancouver/ICMJE Style Ouarda Belkacem Layachi. Protection of Human Rights During the Covid-19 Pandemic SRP. (2020), [cited March 29, 2021]; 11(6): 1332-1338. doi:10.31838/srp.2020.6.194 Harvard Style Ouarda Belkacem Layachi (2020) Protection of Human Rights During the Covid-19 Pandemic SRP, 11 (6), 1332-1338. doi:10.31838/srp.2020.6.194 Turabian Style Ouarda Belkacem Layachi. 2020. Protection of Human Rights During the Covid-19 Pandemic Systematic Reviews in Pharmacy, 11 (6), 1332-1338. doi:10.31838/srp.2020.6.194 Chicago Style Ouarda Belkacem Layachi. International Protection of Human Rights During the Covid-19 Pandemic Fight. Systematic Reviews in Pharmacy 11 (2020), 1332-1338. doi:10.31838/srp.2020.6.194 MLA (The Modern Language Association) Style Ouarda Belkacem Layachi. International Protection of Human Rights During the Covid-19 Pandemic Fight. Systematic Reviews in Pharmacy 11.6 (2020), 1332-1338. Print. doi:10.31838/srp.2020.6.194 APA (American Psychological Association) Style Ouarda Belkacem Layachi (2020) Protection of Human Rights During the Covid-19 Pandemic Systematic Reviews in Pharmacy, 11 (6), 1332-1338. doi:10.31838/srp.2020.6.194

Cláusula de exclusão por cometimento de crime hediondo, atos terroristas e de tráfico de drogas da condição de refugiado: a intervenção indevida do Direito Penal nos Direitos Humanos

O aumento do número de refugiados no mundo hoje tem evidenciado uma crise de imigração com a procura de novos lares por milhares de pessoas que se qualificam como refugiados. No Brasil, o regime jurídico foi estabelecido pela Lei 9.474 que consigna uma definição ampliada do conceito de refugiados logo em seu artigo 1º. A referida legislação foi adotada tendo em vista a adesão ao Brasil à Convenção das Nações Unidas relativa ao Estatuto dos Refugiados de 1951. No entanto, a legislação nacional apresenta novas hipóteses de exclusão em relação ao cometimento de crimes hediondos, atos terroristas e tráfico de drogas, sem igual previsão no principal tratado internacional sobre o tema. O desenvolvimento do estudo sobre a temática irá evidenciar que a cláusula de exclusão contida no art. 3º da Lei nº 9.474 revela uma interferência de política criminal que viola a proteção internacional dos direitos humanos. A análise a respeito do cometimento dos delitos apontados poderá descaracterizar a condição jurídica de refugiado instrumentalizada na referida Convenção, com expressa violação ao princípio do nonrefoulement. Admitindo-se a natureza de Direitos Humanos ao Direito dos Refugiados, a sua proteção não pode estar condicionada à interferência da política criminal nacional, cada vez mais acentuada e discriminatória dos indivíduos, pois o respeito aos direitos humanos tem aplicação universal e incondicional. As considerações sobre a interferência do Direito Penal no conceito de refugiado, revela enfraquecimento da proteção dos direitos humanos a que o Brasil se comprometeu no âmbito do direito internacional.

Judicial Defence of Constitutionalism in the Assessment of South Africa's International Obligations

The (sometimes fragile) balance between South Africa's constitutional obligations to protect and promote human rights in the international arena and the realities of political practice is the focus of this paper. The Constitution provides for solid dualist mechanisms and procedures for parliamentary oversight of the executive's conduct in the governance of international relations, including the conclusion of treaties. There is, however, a congenital constitutional flaw in the oversight instrumentation of the Constitution: the president is endowed with practically unfettered control over cabinet, and through the cabinet and the parliamentary caucus, he has indirect but firm control over parliament. Consequently, parliamentary oversight of international relations is severely challenged, effectively leaving it to the minority parties, civil society and the courts.
 This paper assesses the effectiveness of the protection of international human rights in South Africa by constitutional means. It begins by setting out the constitutional foundations that were designed to provide the desired protection and the place of international law in the South African legal order. This is followed by a description of the impact of political reality on the implementation of the constitutional oversight mechanisms.
 Due to the justiciability of government conduct under the Constitution, parliamentary oversight of executive conduct in the international sphere has largely taken the form of judicial review. In this, the courts have performed very well. This emerges from a concise overview of some key cases in which the courts developed sound principles and delivered strong judgments about the government's failures to maintain the required constitutional standards in its international relations. The cases show a sensitivity on the part of the courts to avoid judicial overreach, while taking up the responsibility to uphold constitutionalism.
 While the courts' stabilising interventions must be applauded, the executive tendency to flout its constitutional responsibilities remains a cause for concern.