International Rights Law Research Articles

Applications of International Rights Laws and Migrants: Understanding Challenges and Problems

Migration is a concept crucial to our understanding in the dawn of deepening globalization and the advance of science and technology. However, this is not a new phenomenon. It is as old as human history. Though migration has both negative and positive implications on human beings, it has emerged in the last few years as a critical political and policy challenge in matters such as integration, displacement, safe migration, and border management. This concept is one of the most debatable facets in international forums, however, the phenomenon of migration encompasses a wide variety of movements and situations involving people of all walks of life and backgrounds and touches all states and people in an era of deepening globalization. In this article, migration is referred as to a movement from one place to another which has both internal and external dimensions. Therefore, though migration in the olden days and nowadays has similarities, economic, social issues, political and governance-related factors, and ecological issues are regarded as its major cause in the contemporary world. This study is, therefore, aimed to examine the most challenges that face migrants in the receiving countries and how international human rights laws have never addressed the concerns and challenges that face migrants inside the boundaries of the receiving state.

Serious violations of international human rights law and international humanitarian law, and individual reparations

Serious violations of international human rights law and international humanitarian law, and individual reparations

La imprescriptibilidad del derecho a obtener reparación integral de las víctimas de Lesa Humanidad

La Corte Interamericana de Derechos Humanos ha establecido un nuevo estándar convencional en reciente jurisprudencia: la imprescriptibilidad del derecho a reparación integral en los aspectos civiles del daño ocasionado por delitos de lesa humanidad, a las víctimas de delitos de lesa humanidad. Ello en consonancia con la evolución del derecho internacional de los derechos humanos.

The Disparate Treatment of Rights in Trade

Rights advocates are increasingly urging U.S. trade negotiators to include new binding and sanctionable provisions that would protect human rights, women’s rights, and gender equality. Their efforts are understandable. Trade agreements have significant advantages as a process for advancing global rights. Even though Congress and the Executive incorporate global environmental standards and labor rights in U.S. trade agreements, they have refused to incorporate gender rights and broader human rights. The rationale behind the United States’ disparate treatment of rights in trade has received almost no scholarly attention. That is a mistake. Using labor rights as a case study, this Article discerns the rationale for incorporating rights in U.S. trade policy. Properly understood, U.S. policymakers incorporate some rights in U.S. trade agreements because they view those rights as critical to protecting national industries and citizens from unfair trade conditions. Efforts to incorporate rights as the ends rather than the means to trade policy accordingly fail to resonate with policymakers. Those efforts also fail to appreciate the significant policy drawbacks of coupling trade law and international rights law, such as conflicts between international law and U.S. federal and state laws, and challenges to domestic processes in the United States and abroad. Nevertheless, there are alternative ways that the United States may protect global rights while preserving the sanctity of both regimes.

¿Existe un lugar para el arbitraje dentro del sistema de reparaciones practicado por la Corte Interamericana de Derechos Humanos?

espanolEl presente trabajo trata sobre el rol que podria ocupar el arbitraje en el sistema de reparaciones desarrollado por la Corte Interamericana de Derechos Humanos cuando resuelve casos contenciosos. Para ello, se expondra lo sucedido en los unicos dos casos en los que la Corte entretuvo la posibilidad de considerar al arbitraje como un mecanismo alternativo de determinacion de reparaciones: Garrido y Baigorria vs. Argentina y Chaparro Alvarez y Lapo Iniguez vs. Ecuador. A partir de un analisis de estos precedentes, el autor intentara: a) identificar y caracterizar los diferentes enfoques que la Corte asumio en cada caso con respecto al arbitraje; b) evaluar si ambas aproximaciones son consistentes con el derecho internacional de los derechos humanos y los principios generales del arbitraje; y c) senalar como y cuando el arbitraje puede ser utilizado como un mecanismo alternativo de determinacion de reparaciones en un caso de violacion de derechos humanos. EnglishThis work addresses the role which arbitration could occupy within the reparations system developed by the Inter-American Court of Human Rights when solving contentious disputes. In that sense, the only two precedents in which the Court entertained the possibility of considering arbitration as an alternative means for the determination of reparations shall be described: Garrido and Baigorria vs. Argentina and Chaparro Alvarez and Lapo Iniguez vs. Ecuador. From the analysis of these two precedents, the author will try to: a) Identify and characterize the different approaches taken by the Court in each case; b) evaluate whether these two approaches are consistent with the relevant international human rights law and the general principles of arbitration; c) point out how and when arbitration can be used as an alternative mechanism to determine the reparations in a case concerning human rights violations.human rights violations.

Human Rights Law and Practice

The book, Human Rights Law and Practice, critically examines the evolution of contemporary human rights law and practice with special reference to India. It evaluates the ongoing discourse on various issues relating to life, liberty, equality and human dignity and their reflections in international human rights law referring the state practice through Constitutional guarantees, judicial decisions as well as through enacting appropriate legislations. The book is divided into nine Chapters. The Chapter 1 is preliminary which discusses theoretical foundations of human rights law. The Chapter 2, namely, “international bill of human rights” demonstrates various facets of civil and political rights as well as economic, social and cultural rights. While the Chapter 3 is devoted to discuss the importance of human rights law in protection against inhuman wrongs, the Chapter 4 demonstrates a large number of debates oncerning human right to development and protection of environment. The Chapter 5 explores various issues relating to human rights in Indian Constitutional law, while the Chapter 6 discusses role of human rights law in protecting women and children. The scope and ambit of the rights of indigenous peoples and minorities have been debated during last few decades. Therefore, the Chapter 7 discusses the function of human rights law for protection of indigenous peoples, whereas the Chapter 8 is devoted to discuss the contour of the human rights law that deals with minority protection. The persons with disabilities have not only been discriminated against in almost all societies throughout history but they are even excluded from the societal mainstream and denied their basic human rights. Therefore, the Chapter 9 examines the utility and justifications of human rights law in protecting the rights of persons with disabilities. Thus, the division of Chapters of the book is excellent as the initial Chapters have discussed mostly individual rights and rest of the Chapters have thrown light on the collective rights of women, children, minorities, indigenous “peoples” as well as the right to have good environment and balanced development.

International institutional design and human rights: The case of the Inter-American Human Rights System:

Most studies examining the effectiveness of international human rights law treat international human rights institutions as equally (un)influential on state behavior. I argue that institutional des...

International Human Rights Treaties in Central American Jurisdictions: Interpretative Guidelines and Principles for the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families

As part of the Institute for Latin American Studies (IDELA) project on Current Migration Trends in Latin America, an analysis of the regional regulations on human rights is conducted in this paper in order to highlight efforts for an interpretative harmonization, and to ulteriorly study the possibilities of building regional regulations. The scope of the international human rights law is reviewed, since the international treaties protecting such rights include the protection of migrants as a vulnerable social group within this perspective

Landscape: from common good to human right

This paper analyses how the current concept of landscape, which overcomes a scenery-based characterisation and a confinement to classical aesthetics and art, relates to the notions of the common good, commons and commons pool resources (CPRs). I consider landscape as a complex process in which human beings (with their history and culture) and their environment are mutually defined. On the basis of this approach to landscape studies, and by considering contemporary documents on landscape (i.e. the European Landscape Convention, the Latin American Initiative for Landscape and the Unesco Florence Declaration) I analyse the similarity between the notion of landscape and the concepts of common good, the management of commons and the commons pool resources institutions. Through theoretical research supported by practical examples (e.g. community gardens) I argue that landscape can be defined as a common good, can include the commons, and the collective management of lands and common pool resources institutions. The paper relies on an excursus through the theories and legal documents, with a specific regard to the theoretical foundations of these different notions. The analysis carried out in the paper leads, in the end, to the possibility of defining the ‘right to landscape’. Even if the concept is new in the literature, and a right to landscape is not recognized as a right per se, it is already implicated and studied in many international rights laws. Three approaches to landscape as a right have been distinguished: the right to landscape as a perceived landscape (a collective right), as a right to the environment, and a right for addressing human rights. I integrated these approaches by arguing that landscape is a domain in relation to which human rights can be claimed, and that landscape can be considered as a right to which human beings are entitled.

Participação, Democracia e Cidadania dos Povos Indígenas no Contexto Internacional Através dos Sistemas Europeu e Interamericano de Direitos Humanos

This article presents the global democratization for the protection of minorities through the global promotion of European systems and Inter-American Human Rights. At the level of international human rights law, these ideas are the basis of so-called “speci- fication process rights of individuals”, according to which, in addition to general universal rights extended to all, there is need to recognize specific rights to certain groups vulne- rable in society. With the goal of achieving real equality, or at least reduce the existing factual inequalities. Thus, consolidation of protection of minorities reflects the situation of need access to fair legal system to ensure the effectiveness of fundamental rights and the full consolidation of access to justice through the international courts of justice, aimed at protection of human rights the international context.

Exploring the ‘Ecology’ of Laws at the Interface Between International Rights Law and Subnational Customary Law

What has gone wrong with the great fundamental rights project? 1 Despite ‘the burgeoning human rights revolution’ with its constantly ‘evolving’ standards, the world is still plagued by ‘massive violations’ of core fundamental rights. Neither relentless pressure from international organisations nor the involvement of powerful NGOs has ensured that states eradicate rights abuses. Resistance to rights reform, whether it comes from states themselves or from substate communities, points to the fact that the system created by international law is constantly competing with other, resilient, forms of regulation. This means that more of the same type of reform is unlikely to translate into a greater and better vindication of rights. Hence, the argument is that, for rights reform to be effective, legislation must not only recognise but also purposively engage with these alternative regimes and, as explained below, particularly with those at subnational level, where resistance to reform could be heightened. With respect to rights reform in general, it is clear that an uncomfortable ‘contact zone’ exists between international law and many subnational systems,

Judicial "Translation" and Contextualisation of Values: Rethinking the Development of Customary Law in Mayelane

The relevance of Mayelane v Ngwenyama (2013 4 SA 415 (CC)) has not been exhausted. Particularly the constitutional mandate undertaken by the Constitutional Court to "develop" customary law deserves closer scrutiny. In Mayelane the Constitutional Court, in seeking to vindicate the dignity and equality of women in polygynous marriages, examines the validity of a second marriage in terms of "living" customary law. The Court applies customary law as a "primary" source of law, while it simultaneously promotes the values enshrined in the Constitution, however – bearing in mind that the constitutional values of dignity and equality have their roots in international rights law – the Court is in reality dealing with normative plurality spanning subnational (customary), national as well as international regimes. Furthermore, each of these systems is embedded in its own socio-cultural context, and therefore the liberal individualism of international law could be "foreign" in a customary context, which values communalism. Hence, it is asked whether courts can accommodate pluralism by simply transposing norms and values such as dignity and equality from one system to another, particularly in cases where the court sets out to "develop" customary law. It is argued that norms and values have to be interpreted and applied with reference to their particular context and audience. Thus, there is a need for courts to contextualise and attune, or "translate" norms, whenever they are applied to another system.

Reforming Surveillance Law: The Swiss Model

As implemented over the past twenty-seven years, the Electronic Communications Privacy Act (“ECPA”), which regulates electronic surveillance by law enforcement agents, has become incomplete, confusing, and ineffective. In contrast, a new Swiss law, CrimPC, regulates law enforcement surveillance in a more comprehensive, uniform, and effective manner. This Article compares the two approaches and argues that recent proposals to reform ECPA in a piecemeal fashion will not suffice. Instead, Swiss CrimPC presents a model for more fundamental reform of U.S. law. This Article is the first to analyze the Swiss law with international eyes and demonstrate its advantages over the U.S. approach. The comparison sheds light on the inadequacy of U.S. surveillance law, including its recurrent failure to require substantial judicial review, notify targets of surveillance, and provide meaningful remedies to victims of unlawful practices. Notably, through judicial oversight and the requirement that surveillance practices be first approved by the legislature, the Swiss significantly restrict several law enforcement methods that U.S. law leaves to the discretion of the police. This Article explains the differences in approach as stemming from the greater influence of international human rights law in Switzerland and the Swiss people’s willingness to engage in a wholesale revision of their procedural law. In the United States, the courts and Congress have struggled to establish appropriate surveillance rules, as evidenced by recent controversial judgments in the courts and congressional hearings on ECPA reform. In the wake of recent disclosures about massive NSA surveillance programs that have relied on both foreign and domestic surveillance, U.S. citizens have grown increasingly concerned about the excessive use of new surveillance technologies to gather information about their private communications and daily activities. This Article analyzes the Swiss approach to domestic electronic surveillance, which, if adopted here, would significantly improve our laws. © 2013 Susan Freiwald & Sylvain Metille. † Professor of Law, University of San Francisco School of Law. I thank research librarian John Shafer and research assistants Sydney Archibald, Amy Leifur Halby, Everett Monroe, and David Reichbach for their valuable help. Josh Davis, Jim Dempsey and Judge Stephen Wm. Smith also contributed significantly to my thinking about this paper. †† Doctor of Law and attorney at the Swiss bar, Lecturer, University of Lausanne, Faculty of Law and Criminal Justice and University of Fribourg International Institute of Management in Technology, Switzerland. This Article was mainly written during my time as a visiting scholar at the Berkeley Center for Law and Technology, University of California, Berkeley, School of Law. I thank research librarian Jean Perrenoud for his valuable help. We appreciate the comments made by participants at the Privacy Law Scholars’ Conference in June 2012, where we presented a draft of this paper: Bryan Cunningham, Danielle Citron, John Grant, Orin Kerr, Greg Nojeim, and Brian Pascal. We particularly thank Stephen Henderson, who moderated the panel devoted to our paper and furnished excellent guidance. 1262 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 28:1261

Human rights litigation using international human rights law : the IHRDA experience

Africa is a continent with its own unique peculiarities and a complex cycle of problems: poverty, hunger and malnutrition; deeply rooted gender inequalities and inequities; discrimination based on ethnic differences; marginalisation of minorities; diseases; persistent civil strife; abuse of state power and resources as shown by arbitrary detentions, extra-judicial executions, and rampant corruption; foreign exploitation of resources; as well as impunity and many other forms of ills that frustrate meaningful enjoyment of human rights by all. Confronting these ills requires a reinforcement of multiple strategies and efforts by various stakeholders including states and civil society. The emergence of the African Charter on Human and Peoples' Rights (ACHPR) and a proliferation of kindred instruments establishing bodies with the mandate to handle communications alleging violations of human rights that have not been effectively redressed by national jurisdictions, stands as a set of concrete steps showing a semblance of commitment by states towards respect and promotion of human rights on the continent. In the main, the existence of these bodies with flexible practices and procedures for handling complaints provides an excellent opportunity for litigation to be used for the vindication of rights where domestic systems either fail, or are reluctant to remedy violations. To date, litigation before supra-national bodies is spearheaded by non-governmental organisations (NGOs) acting on behalf of individual victims or indeterminate numbers of victims.

Litigating human rights in South Africa : the experience of the Centre for Applied Legal Studies

This article aims to show, through an overview of the experience of the Centre for Applied Legal Studies ('CALS'), that international law forms an integral part of human rights litigation in South Africa. It is apparent from the experience of CALS that international law, including international human rights law, in its various forms, such as, case law, international conventions and treaties, as well as guiding principles, has a key role to play in aiding domestic courts to interpret constitutionally recognised rights. The experience of CALS further illustrates that these international laws and principles have an important role to play in assisting litigators and individuals in arguing for the basic recognition of rights that may not be recognised in domestic jurisdictions.

The Textuality of Human Rights: Founding Narratives of Human Personality

As one of the primary rationales enabling contemporary international rights law, human replaces both the absolutist organicism of natural law and the possessive and positivist individualism of liberal economic materialism; but the act of substitution effectively cleaves human personality, causing it to serve simultaneously as the foundation and aim of rights. Thus human personality, as the 1948 Universal Declaration of Human Rights (UDHR) has it, is both antecedent to rights and is also (con)sequent to rights, establishing a sort of tautological construction in which the human to be achieved through the codification and observance of rights must be posited as prior to rights, as an innate and inhering feature of pre-juridical personality. As articulated, rights aspire to enable a developmental sequence that follows a posited originary personality through a teleology that will arrive at some expressive civil manifestation of this personality. This teleology-in-tautology of rights re-naturalizes personality by describing it narratively as a structure of development in which the personality achieves its fullest expression through its emergence as a (self-) narrating international citizen-subject, a narrative vision of the that the law shares with the traditional literary generic conventions of the Bildungsroman (the story of the socialization of the individual). Rather, then, than institutionalizing a static, singular subject, rights animate the contemporary rights subject as an aspirational project and a narrative process by which the individual is to be incorporated internationally through the regulation of the enfolding of the citizen-subject as a juridical person who will narrate such enfolding as the unfolding of innate and inhering qualities, as a narrative act of volition.

Domestic judicial deference and the ECHR in the UK and Netherlands.

This comparative article explores the interrelationship of domestic and international human rights law in the Netherlands and the United Kingdom, with reference to the European Convention on Human Rights (ECHR). The two jurisdictions offer a valuable comparison, in that the UK’s dualist approach to international law has meant that it is only very recently that the ECHR has been directly enforceable in UK domestic law. The Netherlands, meanwhile, appears to the English lawyer to present a completely different approach to international law, being based as it is upon a form of monism. Whilst the two systems appear opposed in logic because of their dualist and monist bases, they in fact have much to learn from each other.

Preventing adolescent pregnancy: the protection offered by international human rights law

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The Place of Law in Addressing Internal Regime Conflicts

Copyright ? 1997 by Law and Contemporary Problems * Law Program/Research School of Social Sciences, The Australian National University. This article was written while the author was a Research Fellow at the International Human Rights Law Institute, DePaul University. 1. Newspaper's Director on Post-Revolution Trials, ROMPRES, Mar. 16, 1990, FBIS Daily Report (FBIS-EEU), Mar. 22, 1990, at 70, cited in IMPUNITY AND HUMAN RIGHTS IN INTERNATIONAL LAW AND PRACTICE 137 (N. ROHT-Arriaza ed., 1995). 2. Gyorgy Konrad, The Viewpoint of the Victim, 2 CARDOZO STUDIES IN LAW AND LITERATURE 9, 11 (1990). 3. For the purposes of this article, is defined as institutionalized conflict. Conflict includes of an international character (the four Geneva Conventions 1949 and Protocol I of 1977), of a non-international character (common article 3 of the four Geneva Conventions 1949 and Protocol II of 1977), and purely internal conflict, including tyrannical regime victimization (to which the Genocide Convention, the Torture Convention, and Crimes against Humanity apply). The definition corresponds with The Department of Peace and Conflict Research (Uppsala University, Sweden): An armed conflict is defined as a contested incompatibility that concerns government and/or territory where the use of force between two parties, of which at least one is the government of a state, results in at least 25 battle-related deaths. See Peter Wallensteen & Karen Axell, Conflict Resolution and the End of the Cold War, 1989-93, 31 J. PEACE RES. 33349 (1994). Clearly, deaths through internal regime victimization do not occur within the traditional concept of battle or armed conflict. That is, the victims are usually not or only minimally, have no collective cohesive nature other than that ascribed by the state as perpetrator, and can not be described as an adversary except in the terms of the ideological framework of the state. However, such internal is public (through it being state conducted), institutionalized, and armed, and therefore corresponds to the framework definition stated. 4. The data in this article is based on the preliminary results of a study of from 1945 (post-WWII) to 1996, compiled by the author at the International Human Rights Law Institute at DePaul University, under the direction of Professor M. Cherif Bassiouni.

New United Nations Procedure to Protect Prisoners and Other Detainees

In 1974, the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities established a new procedure for implementing international human rights law to deal with worldwide patterns of violations of the rights of detained persons. This Comment explains the new procedure, discusses the action the SubCommission has taken and is authorized to take regarding detainees, and suggests ways in which the procedure might be used and strengthened by interested groups.