International Rights Research Articles

Why International Lawyers Would Be Better Off Without the Concept of Personality

This paper argues that an unwarranted bias against the international legal personality of non-State entities has been passed down through generations of international lawyers since the 19th century and continues to influence the interpretation and application of contemporary norms across the board in the international legal system. Contrary to conventional wisdom, international law did not apply to States alone until World War II, only to transform during the second half of the 20th century so as to include non-State actors as its subjects. Rather, positive law developments since the 18th century consistently corroborate the notion articulated by Hans Kelsen that the international legal personality of an entity – be it a State, an armed opposition group, or an individual – is solely contingent upon interpretation of international norms. In other words, the answer to the question of the international legal rights and obligations of any entity is, and always was, strictly empirical. Yet, the ‘States-only’ conception of international legal personality is seemingly so ingrained in the minds of many contemporary international lawyers that they inadvertently rely on it when faced with concrete treaty provisions directed at non-State entities. The paper presents two manifestations of this phenomenon: 1) the general perception that EU law is ‘a new legal order’; and 2) the widespread notion that armed opposition groups are only bound by common article 3 of the Geneva Conventions and Additional Protocol II to the extent that these norms reflect customary international law. Similar examples of the ‘States only’ conception’s continued impact may be found in other subfields such as international criminal law, international human rights law, and international investment law. Against this background, the paper questions not only the way in which students worldwide are taught about international legal personality, but the overall value of this concept in international law.

Globalisation and transitions in abortion care in Ghana

BackgroundAccess to safe abortion is a globally contested policy and social justice issue – contested because of its religious and moral dimensions regarding the right to life and personhood of a foetus vs. the rights of women to make decisions about their own bodies. Many nations have agreed to address the health consequences of unsafe abortion, though stopped short of committing to providing comprehensive services. Ghana has a relatively liberal abortion law dating from 1985 and has ratified most international agreements on provision of care. Policy implementation has been very slow, but modest efforts are now being made to reduce maternal mortality caused by unsafe abortions. Understanding whether globalisation has played a role in this transition to practice is important to institutionalise the transition in Ghana and to learn lessons for other countries seeking to implement policies, but analysis is lacking.MethodsDrawing on 58 in-depth key informant interviews and policy document analysis we describe the development of de jure law and policies on comprehensive abortion care in Ghana, de facto interpretation and implementation of those policies, and assess what role globalization played in the transition in abortion care in Ghana.ResultsWe found that an accumulation of global influences has converged to start a transition in the culture of abortion care and service provision in Ghana, from a restrictive interpretation of the law to facilitating more widespread access to legal, safe abortion services through development of policies and guidelines and a slow change in attitudes and practices of health providers. These global influences can be categorised as: a global governance architecture of reproductive rights-obligations which creates pressure on signatory governments to act; and global communication of ideas and mobility of health providers (particularly through cross-cultural training opportunities and interaction with international NGOs) which facilitate global cultural interaction on the benefits of safe abortion services for reducing consequences of unsafe abortions.ConclusionGlobalisation of information, debate and training experience as well as of international rights frameworks can together create a powerful force for good to protect women and their children from the needless pain and death resulting from unsafe abortions.

Infrastructure Alone is Not Enough: Identifying Gaps in the Literature Regarding First Nations Water Governance

In 2015, the federal government committed to ending drinking water advisories in First Nations communities across Canada by 2021. Their approach involves an increase in monetary commitments to improving water quality infrastructure in priority First Nations communities. The perception surrounding water-based infrastructure investments in First Nations communities is that infrastructure grants will solve the issues related to boil water advisories and allow for all individuals in communities to access clean water. While the investments are overdue and necessary, infrastructure alone does not address the institutional issues related to governance of water for First Nations reserves. Furthermore, as Indigenous peoples have constitutionally protected Aboriginal and treaty rights, and international rights (e.g. UNDRIP) of which many are tied to safe water, Indigenous peoples are seeking to incorporate Indigenous laws into their local water governance systems. The goal of this research is to examine gaps in the literature related to First Nations water governance and policy and investigate alternative models of community level water governance. Focusing in Ontario, this research will investigate, the historical context which influences current water governance and created the framework for water management in First Nations communities. By identifying gaps in the planning and implementation projects, this research aims to add to the toolkit of potential solutions and improve the holistic approach to water management within First Nations communities across Ontario.

La libertad sindical colectiva en el Derecho español

El contenido colectivo de la libertad sindical se contempla en España en la Constitución de 1978 de forma limitada, ya que el art. 28.1 de esta norma hace referencia únicamente al derecho de federación nacional e internacional: “(…)el derecho de los sindicatos a formar confederaciones y a fundar organizaciones sindicales internacionales o afiliarse a las mismas.”Es, por tanto, la Ley Orgánica de Libertad Sindical y el Tribunal Constitucional en sus diversos pronunciamientos los que han completado los derechos que corresponden a las organizaciones sindicales en el ejercicio de la libertad sindical

The Problems and Promise of International Rights in the Challenge to Māori Imprisonment

This article draws upon extensive primary research involving substantive documentary analysis of United Nations (UN) reports and New Zealand (NZ) debates over the last 20 years, and interviews with senior Māori professionals, to consider the role of international human rights standards and processes in the challenge to Māori imprisonment. It shows that over-representation is carefully managed by the NZ state in four ways: (i) a perpetual representation of Māori as the offenders; (ii) the selective endorsement of rights, such that discriminatory criminal justice operations are normalised; (iii) a pervasive human rights ritualism within UN reporting processes; and (iv) the legitimisation of imprisonment and inequalities through the international rights system. Notwithstanding these problems, Māori remain alive to the potential of challenging imprisonment through engagement with international rights frameworks. They indicate the need for a tripartite approach of reforms, decolonising acts and abolitionist strategies in doing so.

Connecting Publishing Professionals All Over the Globe in 10 s

Publishing1st is the world’s first international social network and rights-trading platform perpendicular to the publishing field. The platform aims to promote the smooth realization of international rights transactions and provide a broader global trading base for outstanding works. The platform integrates the internet with the traditional publishing framework to achieve point-to-point communication, allowing copyright traders, publishers, book authors, literary agents and subsidiary rights traders from different countries directly engage in barrier-free contact, thereby promoting transactions of copyright and subsidiary rights and publishing exchange at the global level.

Sublicense and cartel enforcement mechanism in first price auction

ABSTRACTIn 2017, the Italian Competition Authority opened a cartel investigation regarding the auction of international television sport rights. In particular, prior to several auctions, bidders have agreed to sublicense the audio-visual football rights in a reciprocal way. Without any reference and evaluation on the specific case, this paper aims at showing that a sublicense agreements can modify the outcome of an auction, even in a first price sealed bid version. This is because the sublicense agreement can be used to indirectly implement a “bid submission mechanism” [RC Marshall and LM Marx, ‘Bidder Collusion’ [2007] 133(1) JET 374]. This result strongly supports the idea that such an agreement should be considered as restriction by object under European antitrust law.

On Writing and Routing Rights

On Writing and Routing Rights James B. Loeffler (bio) The history of human rights is often told either as a timeless myth of Judeo-Christian religious principles or a modern fable about Holocaust-inspired universal justice. Individual Jews figure prominently in these metanarratives, as do casual claims about Jewish ethics, but Jewishness, in the form of specific Jewish political commitments, communal attachments, and collective identities, is alternately taken for granted or passed over in silence. In Rooted Cosmopolitans, I went hunting for these missing Jewish contexts and backstories in human-rights history. The result is a different account of the origins of international human rights and the Jewish roles within that story. Shifting the focus from the United Nations immediately after World War II to prewar Eastern Europe, I trace a rising generation of Jewish legal activists who pioneered many of the legal principles and advocacy techniques that turned human rights from a philosophical ideal into a concrete project of international law. Contrary to popular perceptions today, I argue that what mattered most in their Jewish pathways into human-rights activism was neither their shared marginality nor their universalist sensibilities but a conscious engagement with Jewish politics. This transnational Jewish network spread outward from World War I–era Eastern Europe to encompass the length and breadth of the twentieth-century Jewish world. For that reason, I am very grateful to the editors of Shofar for assembling such a wonderful cohort of scholars to interpret my book from such a variety of geographical and methodological vantage points. These expert commentaries, at once attuned to key historical moments evoked in my narrative and larger historiographical questions, present an embarrassment of riches for my author's response. I cannot do them all the justice that they deserve here. Instead, I offer some brief thoughts, organized roughly by chronology, on the questions they raise about the points of intersection between Jews and human-rights history. [End Page 192] That history has its own history, Arie Dubnov reminds us, beginning with the earlier work of scholars who charted the career of international minorities' protection from the second half of the nineteenth century through the fracture point of World War I and the rise of the League of Nations. He reads my narrative against that historiographical backdrop and observes some key differences in my choice of historical actors and causal claims. He applauds my determination to push past the contemporary false dichotomy that divides Jewish nationalism from international human rights but wonders whether in my quest to de-essentialize human-rights history, I also risk reifying Zionism as the normative paradigm for early Jewish international legal advocacy. More specifically, he asks, do not non-Zionist and anti-Zionist Jewish rights-defenders deserve a larger place in the interwar story of Jewish minority-rights activism? This is a crucial question with implications for the entire field of Jewish human-rights history, especially in light of contemporary extracurricular political debates. Emphasizing the conspicuous Zionist presence in the ranks of human-rights activism certainly carries the risk of methodological side-shadowing, obscuring other contemporaneous Jewish voices and historical actors. But in my estimation, the greater danger remains historiographical back-shadowing, that we project back into the past our contemporary assumptions and anxieties about Zionism and Jewish internationalism. The biography of Lucien Wolf is actually a good example of this problem. His diaries and his publicistic work suggest a crucial figure in interwar international rights protection. Yet a closer look reveals a role overinflated in posterity. To be sure, his story is an important one—and a fascinating one at that. But ultimately it belongs more to the equally crucial history of pre-1920s international liberalism rather than to that of interwar legal thought and Jewish minority-rights advocacy. The same is true of the Austro-Marxists and their East European Jewish followers. For all of the ways in which we might imagine that Bundist national-cultural autonomy must have birthed international minority rights, there is little evidence of that connection. The reasons [End Page 193] are simple. Both Western Jewish liberals and East European Bundists professed a fundamental ambivalence about global Jewish peoplehood. Nonnationalist liberals wished to protect their...

China and The Belt and Road Initiative: Transnational Labor Law Under State Capitalism 4.0

Since the 2007 global financial crisis, many have questioned the predominant form of neoliberal capitalism that has underpinned a U.S.-led global economic order since the 1980s. Meanwhile, China's state capitalism, led by the Chinese Communist Party, has been ascendant. Some have even posited a “Beijing Consensus” as an alternative to the “Washington Consensus.” This essay advances the concept of State Capitalism 4.0, which is premised on the Chinese party-state's control over state-owned enterprises (SOEs) and private firms, mediated through regulatory and institutional arrangements and the strategic exploitation of technology. I apply this concept to analyse China's approach to transnational labor issues as Chinese enterprises expand their activities abroad and mobilize a growing number of Chinese workers transnationally, especially under the Belt and Road Initiative (BRI). Reflecting on the implications of State Capitalism 4.0 for transnational labor law, I argue that the strategic exercise of state regulatory powers can strengthen labor standards through domestic laws and institutions but is antithetical to a core international labor right: freedom of association.

Poverty and Child Rights

This chapter addresses the ever-deepening relationship between child poverty and child rights. In doing so, it takes as its central focus the best known and most important child rights instrument, the UN Convention on the Rights of the Child. The chapter opens with a justification of why, given the range of different approaches available to and adopted by anti-poverty practitioners and scholars, child rights is an appropriate lens through which to consider child poverty. The chapter then moves on to consider the relationship between the CRC and child poverty, focusing both on the Convention itself and on how that instrument has been interpreted by the UN Committee on the Rights of the Child when considering causes, impacts, and responses to child poverty. In doing so, the chapter provides a critical analysis of the strengths and weaknesses of the current international child rights framework in terms of its ability to address the complex, social global challenge of child poverty. It concludes with a consideration of a key contemporary development in terms of child poverty that presents both risks and opportunities in child rights terms: the post-2015 Sustainable Development agenda.

Revisiting the Fiscal and Social Security Status of Highly Mobile Workers in the Road and Railway Transportation: Quo Vadis?

The increasing mobility due to globalization and the increasingly integrated nature of regional economies, for example in the European Union, provides an excellent opportunity to subject the fiscal and social security status of international highly mobile workers employed in the road and railway transportation to a critical evaluation. As far as the international taxing rights over cross-border employment income are concerned, most double tax treaties, based on Article 15 of the OECD Model Tax Convention, use ‘the actual physical place of employment’ as the main starting point. However, the criterion of the state where the employee is physically present is insufficiently attuned to the situation of highly mobile workers carrying out activities in the international road and railway transportation. Because of their mobility and the cross-border nature of their activities, highly mobile workers are exposed to complex interpretation and application problems. An excessive fragmentation of (the exercise of) the place of employment by multiple working states can increase the exposure to conflicting characterizations of facts, additionally on the basis of differences across domestic laws, thereby giving rise to a greater potential for unrelieved double taxation. Further inconveniences may arise from the fact that the obligations demanded by social security law are not always geographically aligned with those determining the place of employment for tax purposes. The special focus of the present contribution lies in a critical comprehensive, in-depth attitude and evaluation of the interpretation and application problems with regard to (1) the place of exercise of employment of international transportation workers, and (2) the affiliated (dis) coordination between the tax allocation rules (double tax treaties) and the social security law rules (Regulation (EC) No 883/2004). Suggestions are made for a minimization of the detected application and interpretation problems regarding the tax jurisdiction over employment income of international transportation workers and the provision for better coordination between fiscal and social security law.

Lost in translation: Problematizing the localization of transnational activism

Existing studies on human rights change posit that activists use transnational networks to organize global and local movements against governments. However, this explanation assumes that international rights claims gain local support and underestimates how difficult it could be for activists to translate global movements into local movements. I address this issue by proposing three mechanisms through which activists face such difficulties and fail to pressure governments. First, misrepresentation occurs when international organizations accept and support activists who do not represent local voices and cannot get local support for their rights claims. Second, misperception happens when activists introduce global norms into local debates but local audiences, unfamiliar with these “foreign” concepts, misperceive them and thus do not support international rights claims. Third, mismatch occurs when pre-existing local movements mistakenly use international rights claims for their own goals, lead local discussions, and overshadow transnational activism. Due to these problems of misrepresentation, misperception, and mismatch, activists may fail to localize their transnational activism. This, in turn, makes it difficult to realize their claims at home. I demonstrate my argument by analyzing the indigenous peoples’ movements in Japan, tracing the success and failure of Ainu and Okinawan activists to domesticate the global indigenous peoples’ movement.

The “Chinese Approach” Ushers in a New Model of Global Governance Civilization*

Since the advent of “world history,” the world order has manifested itself theoretically, on the one hand, as international rights, and on the other, in actual practice, as power. This is exemplified in the Westphalian system. However, the Chinese approach (A New Model of Major Country Relations; A Community of Shared Future for Mankind, among others), which has been acclaimed as a constructive scheme for the new world order, is premised on transcending the Westphalian system; it is founded on a new type of civilization. The objective basis for this new type of civilization is China's socialist trajectory and the revival of China's pacifist tradition—these constitute the essential provisions of the Chinese approach to Global Governance.

International Trade Agreements and Their Relation to Core Labor Standards

The research is an attempt to comprehend with these issues and enunciate an argument that international labor rights and labor standards are a pivotal component of international trade, investment, and development strategy for the well-being of the entire society not only for the wealthy nations. Section 1 of the paper lays out unanimity of labor rights and standards depicted from different sources with evoking instances showing real concerns that have originated with the development of new universal trade. Section 2 illustrates various forums where the international labor rights assertion perhaps induced, through a discourse of multiple supervision or enforcement mechanism available under such forums. Last part of the paper concludes the study and proposes future initiatives to labor rights advocates from all discussions and further recommends new allegiances to international fair labor rights and standards by government, employers, and trade unions entered into a global economy.

Environmental Rights in Marine Spaces

Environmental rights are typically regarded as an extension of human rights into environmental matters. They encompass both substantive rights, such as the right to a healthy environment, and procedural rights, which include access to environmental information, participation in decision-making and access to justice. Environmental rights discourse has been used to deepen our understanding of how and why we protect the natural world. This discourse is mainly focused on rights arising from terrestrial activities. Similarly, leading international environmental rights jurisprudence is dominated by matters related to land use. Arguably this focus is the by-product of a nexus between people and lived space – a nexus that facilitates an awareness, realisation and protection of individual rights arising in terrestrial spaces. However, such a nexus appears to be either absent or under-developed in marine contexts. At best, generally fashioned environmental rights spill over into marine environments. Significantly, no human rights instrument explicitly refers to the oceans, but the inherent and universal nature of human rights implies they extent to ocean spaces. This is reflected in legal texts particular to marine spaces which have little if anything to say about human rights. This chapter explores this phenomenon from an international law perspective, and explains why the marine environment seems to resist or at least exist at the margins of environmental rights discourse: why there is a ‘dissonance’ between environmental rights and human activities at sea. By understanding why environmental rights are marginalised we can begin to take steps to bring this discourse to the fore in developing the regulation of marine spaces. Arguably, this is best done by creating space for greater local engagement in marine regulation (participatory rights), and by recognising the different connections that people have with both ocean spaces and things (substantive rights).

A questão dos refugiados e a ideia de pertencimento ao mundo em Hannah Arendt

Ao discorremos sobre o pertencimento ao mundo e a questão dos refugiados em Hannah Arendt, buscamos trazer a lume uma discussão enfrentada pela autora no século passado, mas que se torna atual, haja vista a conjuntura mundial hodierna. Nosso problema focou a seguinte questão: é possível um mundo sem acolhimento dos seres humanos e de suas relações? Ao nos indagarmos sobre isto, enfrentamos o papel do direito internacional frente à questão, sobretudo, no que concerne à tensão entre direitos humanos e soberania. Para Hannah Arendt, ocorreu uma flagrante incapacidade dos direitos humanos e, do direito, como lei para proteger e resguardar os apátridas e os refugiados. Neste contexto, as categorias de mundo e de refugiado emergem como categorias analíticas para compreendermos a ideia de pertencimento. Ainda nessa esteira, buscamos esclarecer o conceito de mundo em Hannah Arendt para melhor construção de nossa argumentação. Elegemos como metodologia a exegese textual, já consagrada nos estudos filosóficos. Destacamos como corpus central de nossa discussão a obra Escritos judaicos e, em especial, os textos Nós os refugiados (1943) e A Condição Humana (1958).

Spaces of international gender justice: a reply to Baldez and DeLaet

In assessing the effectiveness of international human rights law to achieve meaningful gender equality, Lisa Baldez and Debra DeLaet offer two complementary yet different case studies. De Laet argues that despite the rhetoric and promise of international women's rights law, such codification has yet to achieve ‘systemic progress’ to address gender inequality. DeLaet concludes that progress is most often attributable to national law reform and enforcement rather than global legalism. Picking up on the importance of national context, Baldez comes to a different conclusion in examining the case of Cuba's submissions to Convention on the Elimination of All Forms of Discrimination Against Women. Both papers point not only to the limitations and potential of international law but also to the limitations of feminist strategies that emphasize law reform at the exclusion of other non-juridical strategies for social change. As I read the papers together, I am reminded of the need to see global legal strategies as embedded in and alongside other strategies for social change. I argue that, despite its frailties, international law remains a useful resource for national or grass-roots feminist strategies for positive social change.

Constraints and solutions in the implementation of international economic rights

This Paper It has discussed economic rights contained in the major international economic instruments, namely the International Covenant on Economic, Social and Cultural Rights; the Declaration on the Right to Development; and the African Charter on Human and Peoples’ Rights. The Paper came against the background that there is need for nations, institutions and the international community to pay equal attention to economic and social rights as it does civil and political rights for in the final analysis, human rights are indivisible, inter-related and inter-dependent. The objective of this Paper, therefore, is to draw attention to this reality in order to reposition individuals and nations for economic prosperity and development. The Paper found among other things that the implementational mechanisms of these instruments are weak and ineffectual. It has also recommended amendments to the law and better strategies of implementation.

Explaining Reality by Sustaining Hobsbawm‘s Statement Regarding the Nation-State as the Failed Target of Globalization

Abstract The international security environment is deeply affected by the complex process of globalization, as well as by the nation-state’s permanent search for redefinition of its role as a sovereign political entity. A subject of international law, able to assume international rights and obligations, particularly because of its sovereignty, the state is also an actor whose existence, this time in the field of international relations, is fundamentally conditioned by a series of elements by which precisely the great variety of this form of political and social organization is expressed. External power and internal political organization, social structure and level of economic development, as well as other characteristics, make analysis of the interaction between nation-state and globalization generate highly diverse results with particular consequences on the ability to influence each other. This article therefore aims to put on debate how, at the end of the second decade of the 21st century, the democratic and developed nation-state manages to structure its national security and to found its national interest in the very challenging environment generated by the globalization process

THE ROLE OF INTERNATIONAL LAW WITHIN NATIONAL LEGISLATION ON TOBACCO CONTROL

The present article, taking into account advances in international rights and the need for domestic implementation of Framework Convention on Tobacco Control (FCTC) standards, has the objective of analyzing the competence to bring domestic and international regulations to fruition, with the purpose of creating coordinated public policies for tobacco control. So, it is possible to argue that the FCTC, by means of its guidelines, laid down at the Conferences of the Parties (COPs) and which are binding to all members states of the convention, paves the way for international regulation. Domestically, such regulation has to observe DOP guidelines, there being leeway for organizations like Brazil’s ANVISA to bring those guidelines into action, such as the one related to FTCT articles 9 and 10, which limit the use of flavour additives in tobacco products, as a way of implementing international standards within the country. There is also no conflict between free enterprise and tobacco control given that, as stated by the Constitutional Court of Colombia in a process involving the constitutionality of restrictions to tobacco advertising, this is a market that should not be stimulated, but rather merely tolerated.