Human Rights Law : upso

The Supreme Court and the Fourth Amendment's Exclusionary Rule

Tracey Maclin — 2013-05-23

Author:: Tracey Maclin
ISBN:: 9780199795475
Publisher:: Oxford University Press
Subjects:: Law, Criminal Law and Criminology, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199795475.001.0001
Published in print:: 2012
Published Online:: 2013-05-23

The application of the Fourth Amendment's Exclusionary Rule has divided the Justices of the Supreme Court for nearly a century. As the legal remedy for when police violate the Fourth Amendment rights of a person and discover criminal evidence through illegal search and seizure, it is the most frequently litigated constitutional issue in United States courts. This book traces the rise and fall of the exclusionary rule using insight and behind-the-scenes access into the Court's thinking. Based on original archival research into the private papers of retired Justices, this analysis clarifies the motivations and thoughts that explain the Court's exclusionary rule jurisprudence. It includes a comprehensive scholarly and objective discussion of the reasoning behind the Court decisions, and demonstrates that like other constitutional doctrines, the exclusionary rule is a political mechanism that expands and contracts as the times and Justices change.

Courts and Consociations

Christopher McCrudden and Brendan O'Leary — 2013-05-23

Author:: Christopher McCrudden, Brendan O'Leary
ISBN:: 9780199676842
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, Constitutional and Administrative Law
DOI:: 10.1093/acprof:oso/9780199676842.001.0001
Published in print:: 2013
Published Online:: 2013-05-23

Consociations are power-sharing arrangements, increasingly used to manage ethno-nationalist, ethno-linguistic, and ethno-religious conflicts. Current examples include Belgium, Bosnia, Northern Ireland, Burundi, and Iraq. Despite their growing popularity, they have begun to be challenged before human rights courts as being incompatible with human rights norms, particularly equality and non-discrimination. This book examines the use of power-sharing agreements, their legitimacy, and their compatibility with human rights law. Key questions include to what extent, if any, consociations conflict with the liberal individualist preferences of international human rights institutions, and to what extent consociational power-sharing may be justified to preserve peace and the integrity of political settlements. In three critical cases, the European Court of Human Rights has considered equality challenges to important consociational practices, twice in Belgium and then in Sejdic and Finci v Bosnia regarding the constitution established for Bosnia Herzegovina under the Dayton Agreement. The Court's decision in Sejdic and Finci has significantly altered the approach it previously took to judicial review of consociational arrangements in Belgium. This book accounts for this change and assesses its implications. The problematic aspects of the current state of law are demonstrated. Future negotiators in places riven by potential or actual bloody ethnic conflicts may now have less flexibility in reaching a workable settlement, which may unintentionally contribute to sustaining such conflicts and make it more likely that negotiators will consider excluding regional and international courts from reviewing these political settlements.

Justice in the Balkans

John Hagan — 2013-03-21

Author:: John Hagan
ISBN:: 9780226312286
Publisher:: University of Chicago Press
Subjects:: Law, Human Rights Law
DOI:: 10.7208/chicago/9780226312309.001.0001
Published in print:: 2003
Published Online:: 2013-03-21

Called a fig leaf for inaction by many at its inception, the International Criminal Tribunal for the Former Yugoslavia has surprised its critics by growing from an unfunded U.N. Security Council resolution to an institution with more than 1,000 employees and a $100 million annual budget. With Slobodan Milosevic now on trial and more than forty fellow indictees currently detained, the success of the Hague tribunal has forced many to reconsider the prospects of international justice. This book is a firsthand look at the inner workings of the tribunal as it has moved from an experimental organization initially viewed as irrelevant to the first truly effective international court since Nuremberg. Creating an institution that transcends national borders is a challenge fraught with political and organizational difficulties, yet the Hague tribunal has increasingly met these difficulties head-on and overcome them. The chief reason for its success, the author argues, is the people who have shaped it, particularly its charismatic chief prosecutor, Louise Arbour. The book re-creates how Arbour worked with others to turn the tribunal's fortunes around, reversing its initial failure to arrest and convict significant figures, and advancing the tribunal's agenda to the point at which Arbour and her colleagues, including her successor, Carla Del Ponte (nicknamed the Bulldog), were able to indict Milosevic himself. Leading readers through the investigations and criminal proceedings of the tribunal, it offers an original account of the foundation and maturity of the institution.

The Legal Understanding of Slavery

Jean Allain — 2013-01-24

Author:: JeanAllainProfessor of Public International Law, Queen's University Belfast
ISBN:: 9780199660469
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, Legal History
DOI:: 10.1093/acprof:oso/9780199660469.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

‘Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’. So reads the legal definition of slavery agreed by the League of Nations in 1926. Further enshrined in law during international negotiations in 1956 and 1998, this definition has been interpreted in different ways by the international courts in the intervening years. What can be considered slavery? Should forced labour be considered slavery? Debt-bondage? Child soldiering? Or forced marriage? This book explores the limits of how slavery is understood in law. It shows how the definition of slavery in law and the contemporary understanding of slavery has continually evolved and continues to be contentious. It traces the evolution of concepts of slavery, from Roman law through the Middle Ages, the 18th and 19th centuries, up to the modern day manifestations, including manifestations of forced labour and trafficking in persons, and considers how the 1926 definition can distinguish slavery from lesser servitudes. The book includes a set of guidelines intended to clarify the law where slavery is concerned.

Islamic Law and International Human Rights Law

Anver M. Emon, Mark Ellis, and Benjamin Glahn — 2013-01-24

Author:: Anver M.EmonAssociate Professor, Faculty of Law, University of TorontoMarkEllisExecutive Director, International Bar AssociationBenjaminGlahnFormer Program Director, Salzburg Global Seminar
ISBN:: 9780199641444
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, Comparative Law
DOI:: 10.1093/acprof:oso/9780199641444.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

The relationship between Islamic law and international human rights law has been the subject of considerable, and heated, debate in recent years. The usual starting point has been to test one system by the standards of the other, asking is Islamic law ‘compatible’ with international human rights standards, or vice versa. This approach quickly ends in acrimony and accusations of misunderstanding. By overlaying one set of norms on another we overlook the deeply contextual nature of how legal rules operate in a society, and meaningful comparison and discussion is impossible. Chapters in this book attempt to deepen the understanding of human rights and Islam, paving the way for a more meaningful debate. Focusing on central areas of controversy, such as freedom of speech and religion, gender equality, and minority rights, the chapters examine the contextual nature of how Islamic law and international human rights law are legitimately formed, interpreted, and applied within a community. They examine how these fundamental interests are recognized and protected within the law, and what restrictions are placed on the freedoms associated with them.

EU Anti-Discrimination Law

Evelyn Ellis and Philippa Watson — 2013-01-24

Author:: Evelyn Ellis, Philippa Watson
ISBN:: 9780199698462
Publisher:: Oxford University Press
Subjects:: Law, EU Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199698462.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

EU Anti-Discrimination Law provides a detailed and critical analysis of the corpus of EU law prohibiting discrimination on the grounds of sex, racial or ethnic origin, religion or belief, disability, age, and sexual orientation. It takes into account the changes brought about by the Treaty of Lisbon and it contains thorough examination of the relevant case law of the Court of Justice of the EU. The book examines the background to the legislation and explains the essential characteristics and doctrines of EU law, in so far as they are relevant to the topic of anti-discrimination. It also analyses the increasingly significant general principles of EU law, the Charter of Fundamental Rights, and the relevant law flowing from the European Convention on Human Rights. The key concepts contained in anti-discrimination law are subjected to close scrutiny. The substantive provisions of the law on equal pay and the workplace and non-workplace provisions of the governing directives are similarly examined, as are the numerous exceptions permitted to them. The complex rules governing the rights of pregnant women and those who have recently given birth are dealt with comprehensively in a separate chapter. Equality in social security schemes is also discussed. The book concludes with an assessment of the practical utility of the existing law and the current proposals for its reform.

Conscience and Conviction

Kimberley Brownlee — 2013-01-24

Author:: Kimberley Brownlee
ISBN:: 9780199592944
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199592944.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

This book shows that civil disobedience is more defensible than private conscientious objection. Part I distinguishes conviction from conscience, shedding light on the former as something non-evasive and communicative, and on the latter as something much richer, namely, genuine moral responsiveness. Each of these concepts informs a distinct argument for civil disobedience. The conviction argument shows that, as a constrained, communicative practice, civil disobedience has a better claim than private objection does to the protections that liberal societies give to conscientious dissent. This view reverses the standard liberal picture which sees private ‘conscientious’ objection as a modest act of personal belief and civil disobedience as a strategic, undemocratic act whose costs are only sometimes worth bearing. The conscience argument is narrower and shows that genuinely morally responsive civil disobedience honours the best of our moral responsibilities and is protected by a duty-based moral right of conscience. Part II translates the conviction argument and conscience argument into two legal defences. The first is a demands-of-conviction defence. The second is a necessity defence. Both of these defences apply more readily to civil disobedience than to private disobedience. Part II also examines lawful punishment, showing that, even when punishment is justifiable, civil disobedients have a moral right not to be punished.

Civil Rights in the Shadow of Slavery

George A. Rutherglen — 2013-01-24

Author:: George A. Rutherglen
ISBN:: 9780199739707
Publisher:: Oxford University Press
Subjects:: Law, Legal History, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199739707.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

This book recounts the history of the nation's first civil rights act, from its passage in 1866 through its interpretation and reenactment in developments that reach the present day. The Civil Rights Act of 1866 created civil rights as we now know them, and it exercised a deep and continuing influence over the constitutional and statutory protection of these rights. Almost all of the controversy over civil rights, from the scope of federal prohibitions against private discrimination to the remedies available to victims of civil rights violations, finds its roots in debates over the act. These issues are important in themselves, and all the more so because they exemplify the complementary roles of the legislature and the judiciary in giving meaning to the constitutional ideal of equality in public life. This book offers an appreciation of the Civil Rights Act of 1866, hitherto regarded in only selective and partial perspective, and provides a comprehensive view of the act over nearly a century and a half and a detailed account of its leading role in making civil rights a reality.

Beyond Disagreement

Aruna Sathanapally — 2013-01-24

Author:: Aruna Sathanapally
ISBN:: 9780199669301
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199669301.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

Examining the role of ‘open remedies’ in human rights adjudication, this book provides a new perspective informing comparative constitutional debates on how to structure institutional relationships over fundamental rights and freedoms. Open remedies declare a human rights violation but invite the other branches of government to decide what corrective action should be taken. Open remedies are premised on the need to engage institutions beyond courts in the process of thinking about and acting on human rights problems. This book considers examples across the United States, South Africa, Canada, and internationally, emphasising their similarities and differences in design and the diverse ways they could operate in practice. The book investigates these possibilities through the first systematic legal and empirical study of the declaration of incompatibility model under the United Kingdom Human Rights Act. This new model provides a non-binding declaration that the law has infringed human rights standards, for the legislature's consideration. By design, it has the potential to support democratic deliberation on what human rights require of the laws and policies of the State, however, it also carries uncertainties and risks. Providing a lucid account of existing debates on the relative roles of courts and legislatures to determine the requirements of fundamental rights commitments, the book argues that we need to look beyond the theoretical focus on rights disagreements, to how these remedies have operated in practice across the courts and the political branches of government. Importantly, we should pay attention to the nature and scope of legislative engagement in deliberation on the human rights matters raised by declarations of incompatibility. Adopting this approach, this book presents a carefully argued view of how courts have exercised this power, as well as how the UK executive and Parliament have responded to its use.

Scaling Justice

Shylashri Shankar — 2012-10-18

Author:: Shylashri Shankar
ISBN:: 9780195693201
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780195693201.001.0001
Published in print:: 2009
Published Online:: 2012-10-18

Most experts agree that India's Supreme Court and lower courts' pro-active behaviour on social rights can be traced back to the immediate post-Emergency era. Post-Emergency, judges have become ‘embedded negotiators’. Their judgments have carefully avoided conflict with the political wings while being mindful of their role as safe keepers of the rights of citizens. While the Court has sometimes been charged with judicial overreach, this book attempts to understand why certain choices were made by the Supreme Court judges and the circumstances in which they were made. Qualitative analysis of the constitutional and legal framework, landmark rulings, and dissenting opinion, along with a multivariate analysis of civil liberties and social rights cases are used. This book evaluates the judgments on preventive detention, anti-terror, health, and education cases and shows how judges seek legitimacy for their decisions.

Human Rights in a Posthuman World

Upendra Baxi — 2012-10-18

Author:: Upendra Baxi
ISBN:: 9780198061762
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780198061762.001.0001
Published in print:: 2009
Published Online:: 2012-10-18

This book discusses and combines the different reflections on the human rights theory in the contemporary human condition, which was delineated by the discourses on development, terror, and the emergent posthuman. The six chapters cover a variety of topics, from theory-aversion, to the terror wars, and the posthuman. This book suggests that any general social theory of human rights needs to increase its domain in order to take the discourses on terror and the posthuman seriously.

Hinduism and Human Rights

Arvind Sharma — 2012-10-18

Author:: Arvind Sharma
ISBN:: 9780195665857
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780195665857.001.0001
Published in print:: 2004
Published Online:: 2012-10-18

This book adopts a conceptual approach to the issue of Hinduism and human rights in a cultural ethos in which they are perceived, at least initially, as antithetical, if not antagonistic to each other, perhaps even displaying an aversion to each other bordering on hostility. It offers a rich network of interrelated questions about human rights from a variety of Hindu and non-Hindu angles. The study focuses on the conceptual level of debate and tries to show that there is room for classical or traditional Hindu concepts and ideas in the current international debates on human rights’ protection. The book raises many pertinent issues concerning the relation between Hinduism and human rights. The indological literature on Hinduism and Hindu culture has never addressed the human rights’ perspective, and the author has analysed this issue by discussing issues like the caste system (varṇa, jati), the stages of life (asrama), the four Ages (yugas), and freedom of conscience and Hinduism.

The Future of Human Rights

Upendra Baxi — 2012-10-18

Author:: Upendra Baxi
ISBN:: 9780195690439
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780195690439.001.0001
Published in print:: 2008
Published Online:: 2012-10-18

This book hopes to further contribute to teaching, research, and activist contention about the uncertain futures of human rights in a hyperglobalizing world. The issue of politics — the combined and uneven labours of practices of domination and governance and of counter-power — is addressed in this work. Power and resistance have articulated themselves in terms of alternate languages of normative politics in a pre-human rights epoch through various notions such as ‘justice’, ‘righteous’ conduct (both on the part of the rulers and the ruled), moral responsibility to avoid causing harm to others in everyday conduct, the virtues of honour and chivalry (upon which even until this day thrive the genre, texts, and corpus of international law of humanitarian intervention and of warfare), and fidelity to the divine being rendered intelligible only through the pious interpretation of God’s word. This book also further addresses some ways in which politics of production (inter/intra-governmental labours as well as a wide variety of related social practices) bears upon the production of politics. Human rights activism, the politics of identity and difference, relativism, human rights movements, human rights markets, and business ethics are also discussed.

Child Rights in India

Asha Bajpai — 2012-10-18

Author:: Asha Bajpai
ISBN:: 9780195670820
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780195670820.001.0001
Published in print:: 2006
Published Online:: 2012-10-18

This book presents important legislation and judgments on child rights in India. Each chapter includes constitutional provisions, and statutory and decisional law. It also stresses various relevant regional and international mechanisms and international standards of behaviour towards children, and a host of inadequacies in laws and procedures. It cites some examples and discusses certain approaches of current nongovernmental organizations’ (NGOs) interventions and strategies in the field to enhance and protect the rights of the child. This volume specifically addresses issues such as child custody and guardianship, adoption, child labour, child sexual abuse and trafficking, juvenile justice, education, health and nutrition of children, and their right to play and recreation. Education is the most efficient tool for empowerment and human development. The Juvenile Justice (Care and Protection of Children) Act 2000 strengthens the role of the State as the guardian of any child in its custody. Addressing the problem of neglect of children's healthcare is a challenge for healthcare providers. Clearly, children do not receive ‘the best that mankind has to offer’ but they can be shielded from the worst.

Are Human Rights Western?

Arvin Sharma — 2012-10-18

Author:: Arvin Sharma
ISBN:: 9780195679489
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780195679489.001.0001
Published in print:: 2006
Published Online:: 2012-10-18

This book attempts to examine the assumptions that human rights are Western, that Westerners have ‘their own concept of human rights’, and that ‘Western ideas of human rights have dominated international discourse’. If Westerners have their own concept of human rights, and if they are ‘human’ rights at the same time, then the following question arises: In precisely what way are they Western? And if they were in some sense Western in 1948, are they still so in 2005? The book is organized as follows. Part I presents arguments which tend to claim that human rights are Western on the basis of their historical background. Part II focuses on arguments based on the secular basis of human rights. Part III engages the economic dimension of the issue, with the rise of capitalism and its role in the context of human rights constituting the distinguishing feature of this dimension. The arguments in Part IV involve concepts of universality, rationality, philosophy, and ethics, each in turn providing the basis for a set of arguments. Part V presents arguments in which the claim that human rights are Western is associated with the concept of modernity. Part VI comprises arguments regarding the alleged Westernness of human rights in which the religious element plays a major role. The experience of the non-Western world in relation to the West, as characterized by colonialism, imperialism, racism, and parochialism, constitutes a natural grouping by itself and forms Part VII of the book. Part VIII presents arguments that take aim at the Westernness of human rights, without necessarily resorting to larger frames of references which characterized the preceding arguments. Finally, Part IX brings together arguments which are related to the institutional dimension of the human rights discourse as distinguished from the ideological and other dimensions of the discourse.

The Margin of Appreciation in International Human Rights Law

Andrew Legg — 2012-09-20

Author:: Andrew Legg
ISBN:: 9780199650453
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199650453.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

The margin of appreciation is a judicial doctrine whereby international courts allow states to have a measure of diversity in their interpretation of human rights treaty obligations. The doctrine is at the heart of some of the most important international human rights decisions. Does it undermine the universality of human rights? How should judges decide whether to give this margin of appreciation to states? How can Lawyers make best use of arguments for or against the margin of appreciation? This book answers these questions, and broadens the discussion on the margin of appreciation by including material beyond the European Court of Human Rights system. It provides a comprehensive justification of the doctrine, and catalogues the key cases affecting the doctrine in practice. Part One provides a systematic defence of the margin of appreciation doctrine in international human rights law. Drawing on the philosophy of practical reasoning the book argues that the margin of appreciation is a doctrine of judicial deference and is a common and appropriate feature of adjudication. The book argues that the margin of appreciation doctrine prevents courts from imposing unhelpful uniformity, whilst allowing decisions to be consistent with the universality of human rights. Part Two considers the key case law of the European Court of Human Rights, the Inter-American Court of Human Rights, and the UN Human Rights Committee, documenting the margin of appreciation in practice. The analysis uniquely takes a broad look at the factors affecting the margin of appreciation. Part Three explores how the margin of appreciation operates in the judicial decision-making process, reconceptualising the proportionality assessment and explaining how the nature of the right and the type of case affect the courts' reasoning.

Globalization, International Law, and Human Rights

Jeffery F. Addicott, Md Jahid Hossain Bhuiyan, and Tareq M.R. Chowdhury — 2012-09-20

Author:: Jeffery F.AddicottSt Mary's University School of Law, San Antonio, TexasMd Jahid HossainBhuiyanASA University, BangladeshTareq M.R.ChowdhuryASA University, Bangladesh
ISBN:: 9780198074151
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780198074151.001.0001
Published in print:: 2011
Published Online:: 2012-09-20

This volume analyses human rights in the context of globalization. Focusing on a broad range of human rights themes, it examines the human rights experiences of various countries. It covers important contemporary issues such as the relationship between human rights and globalization, climate change, unbridled corporate capitalism, global terrorism, and globalization and its impact on trade, investments, and people’s movement. Establishing an interface between good governance and human rights, the work emphasizes the significance of new modern rights such as fundamental right to water. The volume also examines the framework of international legal provisions to deal with human rights violations. Providing a broad picture of the current and emerging human rights policy framework for the recognition of human rights, it puts in perspective the conflicting tendencies of modern world towards the persistent struggle for recognizing human rights.

The Future of Disability Law in India

Jayna Kothari — 2012-09-20

Author:: Jayna Kothari
ISBN:: 9780198077626
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780198077626.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

This volume critically reviews the Persons with Disabilities (PWD) Act of 1995 in India. It addresses the core themes of the statute, which revolve around equality and non-discrimination. It argues that due to the lack of clarity of the Act, civil society groups, judges, and even lawyers often find it difficult to interpret its provisions. It highlights possible amendments to the PWD in order to bring it compliance with the United Nations Convention on the Rights of Persons with Disabilities (CPRD) and discusses the potential role of the private sector in providing social security to the disabled. Some of the key issues covered by this volume include public employment for persons with disability, right to education, and right to access.

Corruption and Human Rights in India

C. Raj Kumar — 2012-09-20

Author:: C. Raj Kumar
ISBN:: 9780198077329
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780198077329.001.0001
Published in print:: 2011
Published Online:: 2012-09-20

The malaise of corruption has become deeply embedded in the political and social fabric of the Indian society. The increased scale and frequency of corruption has negatively affected human rights, as well as development initiatives, economic growth, and access to justice. This work adopts a new approach for analysing corruption — corruption as a violation of human rights. It proposes the adoption of a multi-pronged strategy for eliminating corruption, including the creation of a new legislative framework, a new and independent empowered commission against corruption, and an effective institutional mechanism. It also compares India's experiences in fighting corruption with other governments in Asia including Singapore and Hong Kong.

Constituting Economic and Social Rights

Katharine G. Young — 2012-09-20

Author:: Katharine G. Young
ISBN:: 9780199641932
Publisher:: Oxford University Press
Subjects:: Law, Constitutional and Administrative Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199641932.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

Food, water, health, housing and education are as fundamental to human freedom and dignity as are privacy, religion or speech. Yet only recently have legal systems began to secure these fundamental individual interests as rights. This book looks at the dynamic processes that "constitute" the legality of economic and social rights. It argues that processes of interpretation, enforcement and contestation each reveal how economic and social interests can be protected as human and constitutional rights, and how their protection changes public law. Using constitutional examples from South Africa, Colombia, Ghana, India, the United Kingdom, the United States and elsewhere, the book examines innovations in the design and role of institutions such as courts, legislatures, executives, and agencies, in the organization of social movements and in the links established with market actors. This comparative study shows how legal systems protect economic and social rights by shifting the focus from minimum bundles of commodities or entitlements to processes of value-based, deliberative problem solving. Theories of constitutionalism and governance inform the potential of this approach to reconcile economic and social rights with both democratic and market principles, while addressing the material inequality, poverty and social conflict caused, in part, by law itself.

Challenges to Civil Rights Guarantees in India

A.G Noorani and SAHRDC — 2012-09-20

Author:: A.GNoorani, SAHRDC
ISBN:: 9780198074144
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780198074144.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

Civil liberty is a complex issue with unchanging fundamentals. Cases that were decided hundreds of years ago yield principles that are still applicable and relevant today. India used to have a rich tradition of civil liberties. Today, there are no national civil liberties organisations in India like Liberty in Britain or the American Civil Liberties Union. India has enacted draconian laws to counter terrorism. Despite the vast scope or misuse of these legislative measures, the judiciary seems to have no intention of striking them down as unconstitutional or introducing sufficient safeguards from a civil rights perspective. This book provides an overview of challenges to civil rights guarantees in India. It examines preventive detention, extra-judicial killings, counter-terrorism and human rights, death penalty, narcoanalysis, undertrials and videoconferencing, acts of bad faith (focusing on anti-conversion laws), impunity, and the Armed Forces (Special Powers) Act.

Arrest, Detention, and Criminal Justice System

Bellary Uma Devi — 2012-09-20

Author:: Bellary Uma Devi
ISBN:: 9780198075998
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780198075998.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

The right to life and personal liberty is the most cherished one of all the human rights. The enjoyment of all other rights depends upon this basic right. This book is a significant contribution to the literature on the right to personal liberty. This book covers the provisions of criminal law, particularly those dealing with powers of arrest and detention and the safeguards against arbitrary exercise of those powers. It deals with preventive detention, detention pending investigation and trial, and punitive detention following conviction. It makes a strong case for further safeguards to reinforce the right to personal liberty. The discussion highlights what needs to be done further to ensure full enjoyment of the most precious right. The book shows that the justifications for punitive detention, namely, deterrence, reformation, and rehabilitation have turned out to be illogical and irrational. It advocates prevention of crime and reparation rather than punishment by way of imprisonment following conviction.

Aftermath

Daniel Kanstroom — 2012-09-20

Author:: Daniel Kanstroom
ISBN:: 9780199742721
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199742721.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

The United States has undertaken a radical, unprecedented social experiment with massive immigration and deportation enforcement. Since the passage of harsh new deportation laws in 1996, the U.S. has deported tens of millions of noncitizens (“aliens”). Many are undocumented, but many others are long-term legal residents with U.S. families. Deportation has torn through many communities like a capricious tornado: touching down suddenly and leaving a trail of devastation in its wake. It has had profound, though still-understudied, effects on individuals, families, and communities, both in the U.S. and in the countries to which deportees are sent. The Obama Administration has continued—and actually expanded—the deportation system. The U.S. has now created what may be termed, somewhat provocatively, a new American diaspora: a forcibly uprooted population of people with deep and cohesive connections to each other and to the nation-state from which they were removed. Once deportees have been expelled to places like Guatemala, Cambodia, Haiti, and El Salvador, many face severe isolation, alienation, persecution and, sometimes, death. Many may never be able to return. This book now considers the current U.S. system. It examines U.S. deportation as it works and as it might work more justly and fairly. Addressing various political, social, philosophical and legal issues, the author considers how deportation works within the ‘rule of law.’ Concluding that the U.S. deportation system remains an anachronistic, ad hoc, legally dubious affair, the book proposes a more human rights-oriented, humane and rational deportation system.

Law and Childhood Studies

Michael Freeman — 2012-05-24

Author:: MichaelFreemanProfessor of English Law, University College London
ISBN:: 9780199652501
Publisher:: Oxford University Press
Subjects:: Law, Family Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199652501.001.0001
Published in print:: 2012
Published Online:: 2012-05-24

The Current Legal Issues series is based upon an annual colloquium held at University College London. Each year leading scholars from around the world gather to discuss the relationship between law and another discipline of thought. Each colloquium examines how the external discipline is conceived in legal thought and argument, how the law is pictured in that discipline, and analyses points of controversy in the use, and abuse, of extra-legal arguments within legal theory and practice. This book, the fourteenth volume in the Current Legal Issues series, offers an insight into the state of law and childhood studies scholarship today. Focusing on the inter-connections between the two disciplines, it addresses the key issues informing current debates. Topics include cyber bullying, children's human rights, childhood in conflict-stricken areas, foster care, and parental discipline.

Development at the World Trade Organization

Sonia E. Rolland — 2012-05-24

Author:: Sonia E. Rolland
ISBN:: 9780199600885
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199600885.001.0001
Published in print:: 2012
Published Online:: 2012-05-24

This book engages in a systematic analysis of development-oriented rules and procedures at the WTO. It argues that the shortcomings of the Doha Development Round are due in part to the failure to assess trade rules as part of the legal processes and institutions that produce them. A consideration of the development dimension at the WTO must account for the impact of the WTO as an institution on developing and least developed members. The book then seeks to open some paths for reconsidering the trade and development relationship at the WTO taking into account both the heritage of the trade regime and present dynamics. From a pragmatic perspective, this book provides a coherent and systematic analysis of the legal value, the implementation, and the adjudication of special and differential treatment rules for developing members at the WTO. From a theoretical perspective, it posits two paradigms to evaluate different regulatory approaches to trade and development: One where development is considered as a core normative constituent of the trade liberalizing mission of the WTO and one where development considerations are considered on an ad hoc basis. As a prescriptive analysis, it presents a menu of options towards a more functional balance of trade liberalization processes and the development imperatives of many WTO members.

The Struggle for Civil Liberties

Keith Ewing and Conor Anthony Gearty — 2012-03-22

Author:: Keith Ewing, Conor Anthony Gearty
ISBN:: 9780198762515
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780198762515.001.0001
Published in print:: 2001
Published Online:: 2012-03-22

It is widely believed that there was a golden age in which political freedom in Britain was protected by the rule of law, and by judges developing the common law in favour of individual liberty. This study, based on a wide range of official and unofficial sources, examines the mythical nature of much of this traditional learning. The book traces the hostile response of the executive and judicial branches of government to the various groups and individuals who confronted the power of the State in the first half of the 20th century: the wartime peace movements, the Communist Party of Great Britain, the striking trade unionists in 1926, the hunger marches, and the Irish Nationalists. In addressing these issues, the study has a contemporary resonance, by placing in a new and alarming historical context the struggles for civil liberties that have been and are being fought by radical groups in contemporary British Society, and during the Thatcher decade in particular.

Sexual Orientation and Human Rights

Robert Wintemute — 2012-03-22

Author:: Robert Wintemute
ISBN:: 9780198264880
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780198264880.001.0001
Published in print:: 1993
Published Online:: 2012-03-22

‘Lesbian and gay rights are human rights!’ Is this just a political slogan to be chanted outside legislatures? Or are there legal arguments to support the claim that the right to be free from sexual orientation discrimination is a human right? In particular, can national constitutions or international human rights treaties be interpreted as prohibiting discrimination against same-sex activity, gay, lesbian, and bisexual individuals, and same-sex couples? This book attempts to answer these questions by examining three of the most commonly used arguments in favour of such an interpretation: sexual orientation is an ‘immutable status’, sexual orientation is a ‘fundamental choice’ (or part of ‘privacy’), and sexual orientation discrimination is sex discrimination. To assess their merits, the book looks at their relative success and failure in cases argued under three of the world's most influential human rights instruments: the United States constitution, the European Convention on Human Rights, and the Canadian Charter of Rights and Freedoms. It also considers the potential impact of the United Nations Human Rights Committee's recent interpretation of the International Covenant on Civil and Political Rights in Toonen v. Australia.

The Right to Strike

K. D. Ewing — 2012-03-22

Author:: K. D. Ewing
ISBN:: 9780198254393
Publisher:: Oxford University Press
Subjects:: Law, Employment Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780198254393.001.0001
Published in print:: 1991
Published Online:: 2012-03-22

The right to strike in Britain is one of the most important, albeit neglected, issues of modern labour law. It is also one of the most controversial, particularly since the dismissal of 5,500 workers at Wapping, which led not only to calls for law reform (and with it a greater degree of positive state intervention in industrial relations) but also to condemnation of the British government by the ILO. This book concentrates on the hitherto neglected issue of the liability of union members and their families. It examines the effect of strikes and other industrial action on the contract of employment, the question of the payment of wages to those engaged in industrial action, and the social security implications of unemployment caused by trade disputes. The study also examines the position of striking workers under international law (focusing on the ILO and European Social Charter) and concludes by offering proposals for law reform.

Principles of Human Rights Adjudication

Conor Gearty — 2012-03-22

Author:: Conor Gearty
ISBN:: 9780199287222
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199287222.001.0001
Published in print:: 2005
Published Online:: 2012-03-22

The Human Rights Act 1998 was one of the first pieces of legislation passed by New Labour. Some ministers believe that it is the greatest thing that they have done, whereas others view it as a dangerous mistake. This volume explains what the Act is about and where it fits into Britain's constitutional tradition, and explores whether or not it has achieved its goals. Since the act was passed, a large body of case law has built up around it. The Act has enjoyed its fair share of controversies and has produced its own range of disappointments. It has become part and parcel of law courses in all universities, and has attracted the attention of practitioners from all areas of practice. It is now part of Britain's constitutional furniture, of interest and relevance not only to lawyers but also to political scientists, contemporary historians, and the general public. This book takes a fresh look at the place of the Human Rights Act in Britain's constitutional order. It locates the measure in its political and historical context and analyses the case law from the perspective not only of principle but also of practical experience. It examines the effect of the Act, and provides the tools to make informed predictions on the likely outcome of cases.

Political Rights Under Stress in 21st Century Europe

Wojciech Sadurski — 2012-03-22

Author:: WojciechSadurskiHead of the Department of Law, European University Institute, Florence, and Professor of Legal Philosophy at the University of Sydney, Faculty of Law
ISBN:: 9780199296033
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199296033.001.0001
Published in print:: 2006
Published Online:: 2012-03-22

This book looks at the stresses put upon Western liberal democracies by factors such as the increased threat of terrorism and the accession of the post-communist countries of Central and Eastern Europe. It examines the phenomenon of ‘militant democracies’ as a response to these pressures and analyses issues such as party closures, political rights of minorities, and democratization. It focuses on highly topical and contentious areas of current interest in the light of September 11th and the London terrorist attacks.

Legality and Legitimacy

David Dyzenhaus — 2012-03-22

Author:: David Dyzenhaus
ISBN:: 9780198298465
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780198298465.001.0001
Published in print:: 1999
Published Online:: 2012-03-22

This book investigates one of the oldest questions of legal philosophy —the relationship between law and legitimacy. It analyses the legal theories of three eminent public lawyers of the Weimar era, Carl Schmitt, Hans Kelsen, and Hermann Heller. Their theories addressed the problems of legal and political order in a crisis-ridden modern society and so they remain highly relevant to contemporary debates about legal order in the age of pluralism. Schmitt, the philosopher of German fascism, has recently received much attention. Kelsen is well-known as one of the main exponents of the philosophy of legal positivism. Heller is virtually unknown outside Germany. The author exposes the dangers of Schmitt's legal philosophy by situating it in the legal context of constitutional crisis to which he responded. He also points out the inadequacies of Kelsen's legal positivism. In a wide-ranging account of the predicaments of contemporary legal and political philosophy, Heller's position is argued to be the most promising of the three.

Labour Rights as Human Rights

Philip Alston — 2012-03-22

Author:: PhilipAlstonProfessor of Law at New York University Law School
ISBN:: 9780199281060
Publisher:: Oxford University Press
Subjects:: Law, Employment Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199281060.001.0001
Published in print:: 2005
Published Online:: 2012-03-22

Are efforts to protect workers' rights compatible with the forces of globalization? How can minimum standards designed to protect labour rights be implemented in a world in which national labour law is more and more at the mercy of international forces beyond its control? The chapters in this volume argue that international agreements and institutions are of central importance if labour rights are to be protected in a globalized economy. This book explores some of the options that are open to governments, civil society, and the labour movement in the years ahead.

Judges, Transition, and Human Rights

John Morison, Kieran McEvoy, and Gordon Anthony — 2012-03-22

Author:: JohnMorisonProfessor of Jurisprudence, Head of School, Queens University BelfastKieranMcEvoyProfessor of Law and Transitional Justice, Director of Institute of Criminology and Criminal Justice, School of Law, Queens University BelfastGordonAnthonySenior Lecturer in Law, Queens University Belfast
ISBN:: 9780199204939
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199204939.001.0001
Published in print:: 2007
Published Online:: 2012-03-22

This book brings together leading scholars from a range of disciplines to examine some of the most pressing questions asked of the role of human rights in international relations. The chapters focus on the intersection between the role of judges, the language of human rights, and the politics of societies in transition. The international range of the chapters covers experiences as diverse as South Africa, the USA, Great Britain, the Balkans, and Northern Ireland.

International Law, Human Rights, and Japanese Law

Yuji Iwasawa — 2012-03-22

Author:: Yuji Iwasawa
ISBN:: 9780198259121
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780198259121.001.0001
Published in print:: 1998
Published Online:: 2012-03-22

The impact international law has had on Japanese law has been substantial, especially in the field of human rights. The author of this volume, one of Japan's leading international lawyers, examines extensively the relationship between his country's domestic rules and regulations, and the numerous international treaties and conventions which it has ratified in recent years. Some changes were made to domestic laws in an attempt to make them conform with these international instruments, but individuals went to the courts to try to obtain further necessary modification. Such direct invocations of international law have met with little success, but the laws concerned are often amended at a later date, due to political pressure. The changes in domestic law that such amendments have wrought have improved the human rights situation in Japan, and have led to a growing interest in international law within that country. The author pays particular attention to the laws governing sexual equality, the legal status of aliens, and the treatment of mental health patients, amongst others. The book details the changes that international law has brought in these areas, despite the skepticism of the Japanese courts regarding the validity of international human rights law as a source of law.

International Human Rights Law in Africa

Frans Viljoen — 2012-03-22

Author:: Frans Viljoen
ISBN:: 9780199218585
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199218585.001.0001
Published in print:: 2007
Published Online:: 2012-03-22

Since the establishment of the African Union in 2001, there has been a proliferation of regional institutions that are relevant to human rights in Africa. These include the Pan African Parliament; the Peace and Security Council; the Economic, Social, and Cultural Council; and the African Peer Review Mechanism of the New Partnership for Africa's Development. This book discusses the links between these institutions, and 20 years of jurisprudence stemming from the entry into force on 21st October 1986 of the major African human rights instrument, the African Charter on Human and Peoples Rights. This book attempts to provide a comprehensive analytical overview of human rights in Africa, dealing particularly with the regional system of human rights protection. Four themes are followed throughout the book: the principle of uti possidetis, the tensions in the modern post-colonial African state, poverty, and the interrelationship between national and international human rights protection.

The Human Rights of Companies

Marius Emberland — 2012-03-22

Author:: Marius Emberland
ISBN:: 9780199289837
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199289837.001.0001
Published in print:: 2006
Published Online:: 2012-03-22

This book studies the response of the European Court of Human Rights, the international court that supervises governmental compliance with the European Convention on Human Rights (ECHR), to complaints submitted to it by companies and their shareholders. The protection of business vis-á-vis governmental regulation is hardly the main concern of international human rights law, yet it is not disputed that companies, and their owners, in principle enjoy protection under the ECHR. Such complaints are not unproblematic for the Court in Strasbourg, however. The book analyses the Court's reasoning in three groups of cases which have presented difficult issues of treaty interpretation. As the case law is streamlined in a minimalist fashion which obscures the Court's rationale, the book construes the structural framework within which the Court operates and explains how the relevant case law is largely coherent when considered against the general structure of ECHR protection. It studies the protection of business enterprise under the ECHR and is a guide to understanding how the Court in Strasbourg responds to corporate complaints. More importantly, by focusing on a field of European human rights law that is regarded by many as marginal and even objectionable, the book reveals the fundamental structures of European human rights protection, where the protection of economic activity and corporate life is regarded as inseparable from core values of the ECHR such as an effective political democracy and the rule of law.

Human Rights in Natural Resource Development

Donald M. Zillman, Alastair Lucas, and George (Rock) Pring — 2012-03-22

Author:: Donald M.ZillmanGodfrey Professor of Law and Interim President, University of Maine at Fort KentAlastairLucasProfessor of Law and Adjunct Professor of Environmental Science, University of CalgaryGeorge (Rock)PringProfessor of Law, University of Denver College of Law, and Adjunct Professor, Environmental Science and Engineering Faculty, Colorado School of Mines
ISBN:: 9780199253784
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199253784.001.0001
Published in print:: 2002
Published Online:: 2012-03-22

A new human right of public participation by those affected by natural resource development is set to define major economic developments in the 21st century. It is a fundamental part of the international norm of ‘sustainable development’, designed to harmonise economic betterment and environmental-cultural-social protection for this and succeeding generations. A recognised human right since the 1940s, public participation today is assuming many different legal and political forms — citizen involvement, indigenous peoples' rights, local community rights, sustainable development agreements, public hearings, consultation, advisory councils, right to information, right to justice, decisional transfers, benefits sharing, and more. The right to be heard is a fundamental principle of public law in most of the world's legal systems, but in practice ranges from being deeply ingrained in some cultures to non-existent in others. Understanding this new human dimension in law and development is now essential not only for lawyers but also for companies, governments, international agencies, NGOs, IGOs, and citizens. This book provides the theoretical and practical guidance essential to understanding and dealing with this new development. Its first section lays out the basics of what is becoming known as public participation law — its origins, history, theories, modern sources, and future directions. The second section presents the international legal authorities. The third section analyses the current experience and future trends in over a dozen nations and regions of critical resource development interest, from Africa, Australasia, Southeast Asia and China to Europe and North, Central, and South America.

Human Rights and Development

Philip Alston and Mary Robinson — 2012-03-22

Author:: PhilipAlstonProfessor of Law at New York University Law School, and Faculty Director of its Center for Human Rights and Global JusticeMaryRobinsonFormerly President of the Republic of Ireland (1990–97) and UN High Commissioner for Human Rights (1997–2002)
ISBN:: 9780199284627
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, Environmental and Energy Law
DOI:: 10.1093/acprof:oso/9780199284627.001.0001
Published in print:: 2005
Published Online:: 2012-03-22

For several decades after the UN Charter insisted that the promotion of development and human rights were central to post-World War II conceptions of world order, the two fields remained in virtual isolation from one another. Only in the past fifteen years or so, with the fall of the Berlin Wall and the realization that freedom and economic well-being are empirically linked, have the professional communities dealing with development and human rights issues really begun to communicate effectively. But too much of the dialogue has been confined to an abstract or theoretical level. This book addresses highly specific but crucial aspects of the human rights and development interface, including the economics of social rights; land rights and women's empowerment; child labour and access to education; reform of legal and judicial systems; the human rights role of the private sector; and building human rights into development planning, especially the Poverty Reduction Strategy process. Contributors include lawyers, economists, and both scholarly and practitioner perspectives are presented. Several chapters are written by Senior World Bank officials, including the Bank's President and the head of the International Finance Corporation.

Gender and Human Rights

Karen Knop — 2012-03-22

Author:: KarenKnopAssociate Professor, Faculty of Law, University of Toronto
ISBN:: 9780199260911
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199260911.001.0001
Published in print:: 2004
Published Online:: 2012-03-22

In this book, chapters covering a range of areas including international law, rights, citizenship, queer theory, constitutional law, and migration studies bring fresh perspectives to gender and human rights. By relating women's international human rights to broader debates about feminism, rights and international society, this collection of chapters both provides an introduction to gender and human rights and offers a variety of theoretical perspectives and methods. The book addresses the fundamental questions of what feminist legal theory is, what rights are, who the subject of rights is and how a human rights document can be read in a gender-conscious way. It explores issues such as the legal regulation of sexuality and prosecution of collective sexual violence in the former Yugoslavia.

Freedom of Religion under the European Convention on Human Rights

Carolyn Evans — 2012-03-22

Author:: Carolyn Evans
ISBN:: 9780199243648
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199243648.001.0001
Published in print:: 2001
Published Online:: 2012-03-22

Freedom of religion and belief is one of the central rights set out in international human rights treaties and yet it has also been one of the most controversial. While it is generally agreed that religious freedom is a fundamental right, there is little consensus about its content or scope. This book provides a detailed analysis of the law of freedom of religion or belief as developed under the European Convention on Human Rights. It takes a critical view of the restrictive manner in which the European Court and Commission of Human Rights have interpreted the Convention provisions relating to freedom of religion or belief and the high level of deference that they have given to State interests. The first part of the book sets the context, historical and theoretical, in which the interpretation of religious freedom in the Convention takes place. The second looks at the meaning of the Article 9(1) provisions for the protection of freedom of religion and belief, and the third part explores the limitations that a State may place on that freedom. Some of the issues raised include the role of religious education in State schools, permissible limitations on proselytism, the rights of conscientious objectors, and the scope of religious freedom for prisoners.

Freedom of Commercial Expression

Roger A. Shiner — 2012-03-22

Author:: Roger A. Shiner
ISBN:: 9780198262619
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780198262619.001.0001
Published in print:: 2003
Published Online:: 2012-03-22

The U.S. Supreme Court extended constitutional protection to commercial expression or speech in 1976. The European Court of Human Rights and the Supreme Court of Canada subsequently did likewise. Historically, freedom of expression relates to public decision-making as to political, social, and other public issues, rather than the decision of a particular individual as to whether to purchase one or another kind of shampoo. For all that, courts are now granting constitutional protection to the commercial advertising of organisations such as tobacco manufacturers, breweries, and discount liquor stores. This book subjects to critical examination the history of and reasoning behind the extension to commercial expression of the principles of freedom of expression. It examines the institutional history of freedom of commercial expression as a constitutional doctrine, and argues that the history is one of ad hoc, not logical, development. In examining the arguments used in support of freedom of commercial expression, the book shows that even from within the borders of liberal democratic theory, constitutional protection for commercial expression is not philosophically justified. Commercial corporations cannot possess an original autonomy right to free expression. Moreover, the claim that there is a hearers' right to receive commercial expression which advertisers may borrow is invalid. Freedom of commercial expression does not fit the best available models for hearers' rights. Regulation of commercial expression is not paternalistic. The free flow of commercial information is not automatically a good, and in any case commercial expression rarely in fact involves information.

Due Process and Fair Procedures

D. J. Galligan — 2012-03-22

Author:: D. J. Galligan
ISBN:: 9780198256762
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780198256762.001.0001
Published in print:: 1997
Published Online:: 2012-03-22

Due process is one of the most interesting and conceptually challenging areas of the common law, and in recent years there has been a major revival of interest in the sheer range and applicability of the term. In this book, the author offers a study of the underlying principles of due process and fair procedures, and sets the discussion within a broad comparative and theoretical framework. In landmark decisions such as Ridge v. Baldwin (1968) the courts in Britain and other parts of the Commonwealth have begun to recognize the importance of procedural fairness across a broad spectrum of official powers and decisions. Principles have begun to emerge, and yet the courts have not so far developed an approach that is entirely adequate to the task. In this book, the author traces the development of these principles within a framework which includes analysis and critique of legal developments in the major common law jurisdictions, and which relates these developments to similar ideas under both the European Convention on Human Rights and the American Constitution.

Discrimination and Human Rights

Sandra Fredman — 2012-03-22

Author:: SandraFredmanProfessor of Discrimination Law at the University of Oxford, and a Fellow of Exeter College
ISBN:: 9780199246038
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199246038.001.0001
Published in print:: 2001
Published Online:: 2012-03-22

This book provides an important contribution to the debate about the role of human rights law in combating racism. The first chapter examines the right to equality in the context of racism, drawing on a wide range of international and comparative sources to create a critical framework of analysis. The second chapter locates the discussion within the context of multi-culturalism, ethnicity, and group rights, with specific reference to ethnicity within Europe. The next set of chapters is concerned with international instruments to address racism, followed by a critical examination of the newly developed race discrimination directive at EU level. The particular problem of race hatred on the internet is examined in the seventh chapter, followed by an important discussion of enforcement and remedial structures.

Discretionary Powers

D. J. Galligan — 2012-03-22

Author:: D. J. Galligan
ISBN:: 9780198256526
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780198256526.001.0001
Published in print:: 1990
Published Online:: 2012-03-22

One noticeable feature of modern legal systems is the extent to which power is conferred upon government officials and agencies to be exercised at their discretion, according to policy considerations, rather than according to precise legal standards. This book is a legal and jurisprudential analysis of discretionary power in modern legal systems, with particular emphasis on the consequences of discretion in the relationship between the individual and the state.

The Death Penalty

Roger Hood CBE QC (Hon) DCL FBA and Carolyn Hoyle — 2012-03-22

Author:: Roger Hood CBE QC (Hon) DCL FBA, Carolyn Hoyle
ISBN:: 9780199228478
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, Criminal Law and Criminology
DOI:: 10.1093/acprof:oso/9780199228478.001.0001
Published in print:: 2008
Published Online:: 2012-03-22

The 4th edition of this study of the death penalty brings up-to-date developments in the movement to abolish the practice worldwide. It draws on personal experience as consultant to the United Nations for the UN Secretary General's five-yearly surveys of capital punishment and on the latest information from non-governmental organisations and the academic literature. Not only have many more countries abolished capital punishment but, even amongst those that retain it, the majority have been carrying out fewer executions. Legal challenges to mandatory capital punishment have been successful, as has the pressure to abolish the death penalty for those who commit a capital crime when under the age of 18. This edition has more to say about the prospects that China will restrict and control the number of executions ‘on the road to abolition’. Yet, despite such advances, this book reveals many human rights abuses where the death penalty still exists. In some countries a wide range of crimes are still subject to capital punishment, and the authorities too often fail to meet the safeguards embodied in international human rights treaties to safeguard those facing the death penalty. There is evidence of police abuse, unfair trials, lack of access to competent defence counsel, excessive periods of time spent in horrible conditions on ‘death row’, and public, painful forms of execution. The book engages with the latest debates on the realities of capital punishment, especially its justification as a uniquely effective deterrent.

Contrasting Prisoners' Rights

Liora Lazarus — 2012-03-22

Author:: Liora Lazarus
ISBN:: 9780199259830
Publisher:: Oxford University Press
Subjects:: Law, Criminal Law and Criminology, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199259830.001.0001
Published in print:: 2004
Published Online:: 2012-03-22

This volume aims to provoke reflection on the English conception and treatment of prisoners' rights, through juxtaposition with the conception of prisoners' rights in Germany. First, the German and English understandings of prisoners' legal status are examined; secondly these understandings are placed against the background of broader social, political, and legal factors; and thirdly, the methodological problems of comparative law are addressed. English and German approaches to prisoners' rights present illuminating contrasts. In England, despite significant judicial activity in the development of a jurisprudence of prisoners' rights, protection of prisoners' rights remains partial and equivocal. Many aspects of prison life are left within the realm of executive discretion. This equivocal commitment to rights in England is juxtaposed with Germany's highly articulated rights culture and its ambitious system of prisoners' rights protection under the Prison Act 1976. The German Prison Act sets out foundational principles of prison administration, affords prisoners positive rights, defines the limitations of prisoners' constitutional rights, and provides prisoners with recourse to a Prison Court. Moreover, these rights and principles have been developed and refined in a substantial body of prison law jurisprudence over the last thirty years.

Anti-Discrimination Law and the European Union

Mark Bell — 2012-03-22

Author:: Mark Bell
ISBN:: 9780199244508
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, EU Law
DOI:: 10.1093/acprof:oso/9780199244508.001.0001
Published in print:: 2002
Published Online:: 2012-03-22

The 1999 Treaty of Amsterdam expanded significantly the legal competence of the European Union for combatting discrimination. Traditionally, EU law has concentrated on discrimination between women and men and discrimination on the grounds of EU nationality. However, Article 13 EC created a new legal space for the Union to regulate discrimination on the ground of racial or ethnic origin, religion or belief, disability, age, or sexual orientation. This book aims to improve our understanding of the evolution of European Union law in the field. To this end, it considers the development of EU law and policy in respect of two specific grounds of discrimination — race and sexual orientation. It provides an account of the debate within the institutions and Member States, analysis of relevant case law from the Court of Justice, and coverage of the anti-discrimination directives adopted in 2001. The book further considers the relationship between national and European anti-discrimination law. A survey of national anti-discrimination statutes is presented in order to identify the variety of legal traditions that exist in this field. The diversity of these legal cultures impacts significantly upon the scope for and nature of EU anti-discrimination legislation. The author concludes by reviewing the principle factors that have influenced the evolution of EU anti-discrimination law and applying this to an analysis of the prospects for future development.

Access to Justice as a Human Right

Francesco Francioni — 2012-03-22

Author:: FrancescoFrancioniProfessor of International Law and Human Rights at the European University Institute, Florence
ISBN:: 9780199233083
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199233083.001.0001
Published in print:: 2007
Published Online:: 2012-03-22

In international law, as in any other legal system, respect and protection of human rights can be guaranteed only by the availability of effective judicial remedies. When a right is violated or damage is caused, access to justice is of fundamental importance for the injured individual and it is an essential component of the rule of law. Yet, access to justice as a human right remains problematic in international law. First, because individual access to international justice remains exceptional and based on specific treaty arrangements, rather than on general principles of international law; second, because even when such a right is guaranteed as a matter of treaty obligation, other norms or doctrines of international law may effectively impede its exercise, as in the case of sovereign immunity or non-reviewability of UN Security Council measures directly affecting individuals. Further, even access to domestic legal remedies is suffering because of the constraints, put by security threats such as terrorism, on the full protection of freedom and human rights. This collection of chapters offers seven distinct perspectives on the present status of access to justice: its development in customary international law, the stress put on it in times of emergency, its problematic exercise in the case of violations of the law of war, its application to torture victims, its development in the case law of the UN Human Rights Committee and of the European Court of Human Rights, its application to the emerging field of environmental justice, and finally access to justice as part of fundamental rights in European law.

Securing Human Rights?

Bardo Fassbender — 2012-01-19

Author:: BardoFassbenderProfessor of International Law at the Bundeswehr University Munich, Germany
ISBN:: 9780199641499
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199641499.001.0001
Published in print:: 2011
Published Online:: 2012-01-19

The contributions to this book, which are based on lectures delivered at the Academy of European Law in Florence, take a closer look at the two sides of the United Nations Security Council's involvement in human rights — its efforts to promote and enforce human rights on the one hand, and the imperiling of those same rights by action of the Council meant to maintain or restore international peace and security, on the other hand. The book offers a collection of individual views and appraisals, presented by leading experts in international law, of how the Council has dealt with human rights issues, especially in the post-Cold War phase of its life, and of possible avenues for improvement. The opening chapter analyses how the role of the Council in the promotion and protection of human rights has developed since 1945: an organ not endowed with any specific powers in the field of human rights became the ‘centre-piece of the human rights protection system’ of the international community. Another chapter focuses on the legal issues of the Council's actions in favour of human rights. In particular, the legal problems of a qualification of human rights violations as a threat to international peace are addressed. Procedural questions take centre stage in a contribution on the role for human rights in the decision-making process of the Security Council. The following chapters then turn to a practice of the Council which has been sharply criticized because of its negative effects on human rights — ‘targeted sanctions’ imposed on individuals in the form of travel bans, arms embargoes, and the freezing of financial assets. In no other area of its work has the Security Council been so vulnerable to attack by human rights activists and lawyers. In particular, the enforcement of targeted sanctions in Europe and its supervision by European courts is closely analysed.

On the Frontlines

Fionnuala Ni Aolain, Dina Francesca Haynes, and Naomi Cahn — 2012-01-19

Author:: Fionnuala Ni Aolain, Dina Francesca Haynes, Naomi Cahn
ISBN:: 9780195396645
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, Public International Law
DOI:: 10.1093/acprof:oso/9780195396645.001.0001
Published in print:: 2011
Published Online:: 2012-01-19

Gender oppression has been a feature of war and conflict throughout human history, yet until fairly recently, little attention has been devoted to addressing the consequences of violence and discrimination experienced by women in post-conflict states. Thankfully, that is changing. Today, in a variety of post-conflict settings—the former Yugoslavia, Afghanistan, Colombia, Northern Ireland—international advocates for women’s rights have focused bringing issues of sexual violence, discrimination, and exclusion into peace-making processes. This book considers such policies in a range of cases and assesses the extent to which they have had success in improving women’s lives. It argues that there has been too little success, and that this is in part a product of a focus on schematic policies like straightforward political incorporation rather than a broader and deeper attempt to alter the cultures and societies that are at the root of much of the violence and exclusions experienced by women. The book contends that this broader approach would not just benefit women, however. Gender mainstreaming and increased gender equality has a direct correlation with state stability and functions to preclude further conflict. If we are to have any success in stabilizing failing states, gender needs to move to fore of our efforts. With this in mind, the book examines the efforts of transnational organizations, states, and civil society in multiple jurisdictions to place gender at the forefront of all post-conflict processes. The book offers concrete analysis and practical solutions to ensuring gender centrality in all aspects of peace making and peace enforcement.

Humanity's Law

Ruti G. Teitel — 2012-01-19

Author:: Ruti G. Teitel
ISBN:: 9780195370911
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780195370911.001.0001
Published in print:: 2011
Published Online:: 2012-01-19

Post-Cold War history has witnessed a transformation in the relationship of law to violence in global politics. The normative foundations of the international legal order have been shifting their emphasis from state security to human security: the security of persons and peoples. Increasingly, courts, tribunals, other international bodies, and political actors draw from this new framework to assess the rights and wrongs of conflict; determine whether and how to intervene; and impose accountability and responsibility on state and non-state actors. The result of this shift is the law of humanity — a framework that spans the law of war, international human-rights law, and international criminal justice. The author explores the humanity-law phenomenon by looking to its historical roots, its contemporary tendencies, and its effect on the discourse of international relations. Humanity law’s framework is most evident in the jurisprudence of the tribunals — international, regional and domestic — adjudicating disputes often spanning issues of internal and international conflict and security. Yet because most international legal scholarship focuses on individual regimes or tribunals, it is easy to miss the evolution of a jurisprudence connecting the rulings of diverse tribunals and institutions. This jurisprudence tends to expand rights and responsibilities to encompass wider circles of conduct; sweep in additional actors within conflicts; increase the legal responsibilities of states, even for the behavior of non-state actors; and exhibit less deference to the traditional sovereign prerogatives of states, where doing so would interfere with the overriding goal of protecting persons and peoples.

The Access of Individuals to International Justice

Antônio Augusto Cançado Trindade — 2012-01-19

Author:: Antônio Augusto Cançado Trindade
ISBN:: 9780199580958
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199580958.001.0001
Published in print:: 2011
Published Online:: 2012-01-19

The right of access to justice, at national and international levels, is a fundamental cornerstone of the protection of human rights. It conforms a true right to the Law. Such right, lato sensu, amounts to the right to the realization of justice. In such understanding, it comprises not only the formal access to a tribunal or judge, but also respect for the guarantees of due process of law, the right to a fair trial, and to reparations (whenever they are due), and the faithful execution of judgments. The right to an effective domestic remedy is a basic pillar of the rule of law in a democratic society. In its turn, the right of international individual petition, and the safeguard of the integrity of international jurisdiction, are the basic foundations of the emancipation of the individual vis-à-vis his own State.This is a domain that has undergone a remarkable development in recent years. The very notion of “victim” has been the subject of a considerable international case-law. The direct access of victims to international justice has been taking place in the most diverse circumstances, including situations of great adversity, or even defencelessness, of the complainants (e.g., abandoned or “street children”, undocumented migrants, members of peace communities in situations of armed conflict, internally displaced persons, individuals in infra-human conditions of detention, surviving victims of massacres). It is submitted that the right of access to justice belongs today to the domain of jus cogens. Without it, there is no legal system at all. The protection of the human person in the most adverse circumstances has evolved amongst considerations of international ordre public. Such recent evolution has been contributing to the gradual expansion of the material content of jus cogens.

The Making of International Criminal Justice

Theodor Meron — 2011-09-22

Author:: Theodor Meron
ISBN:: 9780199608935
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199608935.001.0001
Published in print:: 2011
Published Online:: 2011-09-22

There has been a quiet revolution over the course of the past quarter century in the prosecution of individuals for war crimes before international courts. Until recently, and with a few notable exceptions in the wake of World War II, violations of the laws of war and international humanitarian law were addressed primarily as claims between states. However, this approach has changed radically in just the last twenty years, as the international community has increasingly accepted the idea of individual criminal responsibility for violations of international humanitarian law. The International Criminal Tribunals for the former Yugoslavia and Rwanda have played a key role in this transformation and, as the trailblazers for a growing number of new international or hybrid criminal courts, in establishing the field of international criminal justice and encouraging the national prosecution of war crimes. Understanding the Tribunals' origins, their ground-breaking jurisprudence, and how they have addressed critical legal and practical challenges is essential to understanding both the revolution that has occurred over the past twenty years and how international criminal law will change and grow in the years ahead. As a leading scholar on humanitarian law, past President of the International Criminal Tribunal for the former Yugoslavia, and Appeals Judge for both the Yugoslavia and Rwanda Tribunals, Theodor Meron has observed and influenced the development of international criminal law as it has evolved from a mostly academic exercise to a cornerstone of the new international legal order. In this collection of speeches delivered during his first decade on the bench, the book offers an insightful overview of the foundations of international criminal law as well as an unique, insider's perspective on the challenges faced by international criminal tribunals, the creation of a corpus of substantive and procedural law regarding everything from sentencing and self-representation to the law of genocide and the protection of prisoners of war, the contributions of other international courts, and the responsibilities of international jurists.

The Legal Protection of Human Rights

Tom Campbell, K.D. Ewing, and Adam Tomkins — 2011-09-22

Author:: TomCampbellProfessorial Fellow and Director of the Charles Sturt University Division of the Centre for Applied Philosophy and Public EthicsK.D.EwingProfessor of Public Law at King's College LondonAdamTomkinsJohn Millar Professor of Public Law at the School of Law, University of Glasgowhttp://www.gla.ac.uk/departments/schooloflaw/staff/academic/tomkinsa/
ISBN:: 9780199606078
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199606078.001.0001
Published in print:: 2011
Published Online:: 2011-09-22

Reacting to the poor record of the UK Human Rights Act 1998 and similar provisions in protecting human rights, this book explores ways of promoting human rights more effectively through political and democratic mechanisms. The book expresses ideological scepticism concerning the relative neglect of social and economic rights and institutional scepticism concerning the failures of court-centred means for enhancing human rights goals in general. Criticizing the ‘juridification’ of human rights through the transferring of the prime responsibility for defining human rights violations to courts and advocating the greater ‘politicization’ of human rights responsibilities through such measures as enhanced Parliamentary scrutiny of existing and proposed legislation, a group of twenty-four human rights scholars present a variety of perspectives on the disappointing human rights outcomes of recent institutional developments and consider the prospects of reviving the moral force and political implications of human rights values. Thus, one chapter recounts the Human Rights Act failures with respect to counter-terrorism legislation, another charts how the ‘dialogue’ model reduces parliaments' capacities to hold governments to accountable for human rights violations, a further chapter considers which institutions best protect fundament al rights, and another chapter reflects on how the idea of human rights could be ‘rescued’ in Britain today. Other chapters deal with the historical human rights failures of courts during the Cold War and in Northern Ireland, the diverse outcomes of human rights judicial review, and examine aspects of the human rights regimes in a variety of jurisdictions, including Finland, Sweden, New Zealand, Australia, Scotland, Canada, Europe, and the United States.

The Law of Treaties Beyond the Vienna Convention

Enzo Cannizzaro — 2011-09-22

Author:: EnzoCannizzaroProfessor of international Law, University of Roma "La Sapienza"http://web.law.umich.edu/_FacultyBioPage/facultybiopagenew.asp?ID=316
ISBN:: 9780199588916
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199588916.001.0001
Published in print:: 2011
Published Online:: 2011-09-22

This book offers an analysis of the law of treaties as it emerges from the interplay between the 1969 Vienna Convention on the Law of Treaties and customary international law. It revisits the basic concepts underlying the provisions of the Vienna Convention, so as to determine the actual state of the law and its foreseeable development. In doing so, it examines some of the most controversial aspects of the law of treaties. The book first explores the influence exerted by the Vienna Convention on pre-existing customary law. Certain rules of the Convention which, at the time of its adoption, appeared to fall within the realm of progressive development, can now be regarded as customary international rules. Conversely, a number of provisions of the Convention, in particular those which have been the subject of subsequent codification work by the International Law Commission, have become obsolete. It then examines the impact exerted by the Vienna Convention on the development of other fields of international law, such as the law of international responsibility and the law of international organizations. The last section of the book is devoted to cross-cutting issues, with particular reference to the notion of jus cogens — a concept first used in the Vienna Convention in connection with the problem of the validity of treaties and which, afterwards, has acquired a legal significance going well beyond the Convention.

International Humanitarian Law and International Human Rights Law

Orna Ben-Naftali — 2011-09-22

Author:: OrnaBen-NaftaliProfessor of International Law, The Law School, The College of Management Academic Studies, Israelhttp://www.colman.ac.il/English/AcademicUnits/Law/Faculty/OrnaBenNaftali/Pages/default.aspx
ISBN:: 9780191001604
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, Public International Law
DOI:: 10.1093/acprof:oso/9780191001604.001.0001
Published in print:: 2011
Published Online:: 2011-09-22

The idea that international humanitarian law (IHL) and international human rights law (IHRL) are complementary, rather than mutually exclusive regimes generated a paradigmatic shift in the international legal discourse. The reconciliation was driven by a humanistic ethos and its purpose was to offer greater protection of the rights to life, liberty, and dignity of all individuals under all circumstances. The complementarity of both regimes currently enjoys the status of the new orthodoxy and simultaneously invites critical reflection. The chapters in this book accept the invitation, offering diverse assessments of the merits of taking human rights to the battlefields of the 21st century. The book comprises three parts: Part I focuses on the paradigmatic (security based ‘armed conflict’ vs. human rights centered ‘law enforcement’ paradigms) and the normative complexities of the interaction between both regimes in the ‘fight against terror’ and in other, allegedly new, types of wars. Part II discusses the interplay between IHRL and IHL in the context of three specific regimes: belligerent occupation, the European Court of Human Rights, and the protection of cultural heritage. Part III explores the potential fusion of IHL and IHRL into a new paradigm in two areas: post-bellum accountability and compensation to victims of war crimes. The range of issues, multitude of competing norms and narratives, and shifting paradigms explored in this collection, converse with each other. This conversation mirrors the process through which international law — paying deference to political realities while simultaneously seeking to transcend them — charts new pathways to advance its humanizing project.

Extraterritorial Application of Human Rights Treaties

Marko Milanovic — 2011-09-22

Author:: Marko Milanovic
ISBN:: 9780199696208
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199696208.001.0001
Published in print:: 2011
Published Online:: 2011-09-22

Questions as to when a state owes obligations under a human rights treaty towards an individual located outside its territory are being brought more and more frequently before both international and domestic courts. Victims of aerial bombardment, inhabitants of territories under military occupation, deposed dictators, suspected terrorists detained in Guantanamo by the United States, and the family of a former KGB spy who was assassinated in London through the use of a radioactive toxin, allegedly at the orders or with the collusion of the Russian government — all of these people have claimed protection from human rights law against a state affecting their lives while acting outside its territory. These matters are extremely politically and legally sensitive, leading to much confusion, ambiguity and compromise in the existing case law. This study attempts to clear up some of this confusion, and expose its real roots. It examines the notion of state jurisdiction in human rights treaties, and places it within the framework of international law. It is not limited to an inquiry into the semantic, ordinary meaning of the jurisdiction clauses in human rights treaties, nor even to their construction into workable legal concepts and rules. Rather, the interpretation of these treaties cannot be complete without examining their object and purpose, and the various policy considerations which influence states in their behaviour, and courts in their decision-making. The book thus exposes the tension between universality and effectiveness, which is itself the cause of methodological and conceptual inconsistency in the case law. Finally, the work elaborates on the several possible models of the treaties' extraterritorial application. It offers not only a critical analysis of the existing case law, but explains the various options that are before courts and states in addressing these issues, as well as their policy implications.

The Evolution of the European Convention on Human Rights

Ed Bates — 2011-09-22

Author:: Ed Bates
ISBN:: 9780199207992
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, EU Law
DOI:: 10.1093/acprof:oso/9780199207992.001.0001
Published in print:: 2010
Published Online:: 2011-09-22

The European Convention on Human Rights underwent a spectacular evolution over the first fifty years of its life. In recent times the European Court of Human Rights has been compared to a quasi-constitutional court for Europe in the field of human rights, and for some time the Convention has been viewed as a European Bill of Rights. The ‘coming of age’ of the ECHR system in the late 1990s was marked by the entry into force of Protocol 11, creating a new, full time Court. By contrast those who first proposed a European human rights guarantee were driven by an ambition to put in place a collective pact to prevent the re-emergence of totalitarianism in ‘free’ Europe. They were motivated by grisly memories of human rights abuse associated with World War Two, and the protection of ‘human rights’ was seen in that light. When the Convention was opened for signature in 1950 it was viewed by many with scepticism and disappointment. The Convention system took many years to get established. In the mid-1960s doubts were expressed as to whether the Court had a future, and in the 1970s the Convention system of control faced a number of serious challenges. This book examines the story of the evolution of the Convention over its first fifty years (1948–98). It reflects on the Convention's origins and charts the slow progress that it made over the 1950s and 1960s, before, in the late 1970s, the European Court of Human Rights delivered a series of landmark judgments which proved to be the foundation stones for the European Bill of Rights that we know today.

The European Court of Human Rights between Law and Politics

Jonas Christoffersen and Mikael Rask Madsen — 2011-09-22

Author:: JonasChristoffersenExecutive Director, Danish Institute for Human Rightshttp://humanrights.dk/staff/staff+profiles?doc=10553Mikael RaskMadsenProfessor of European Law and Integration and Director, Centre for Studies in Legal Culture, University of Copenhagenhttp://jura.ku.dk/crs/english/staff/profile/?id=72332
ISBN:: 9780199694495
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199694495.001.0001
Published in print:: 2011
Published Online:: 2011-09-22

This book provides the first comprehensive analysis of the rise and subsequent development of one of the most striking supranational judicial institutions ever created. The book brings together leading scholars and practitioners to cast new light on the substantial jurisprudence and perpetual political reform of the Court. The broad analysis based on historical, legal, and social scientific perspectives provides new insight into the lasting institutional crisis of the ECtHR and identifies the lessons that can be learned and taken into account in the shaping of the future of the European Convention on Human Rights and Fundamental Freedoms. The European Court of Human Rights is in many ways an unparalleled success. The European Convention took its own unique path under the leadership of the Strasbourg Court that embarked, during the 1970s, on the development of a more progressive jurisprudence. In the post-Cold War era, it went from being the guarantor of human rights solely in Western Europe to becoming increasingly involved in the transition to democracy and the rule of law in Eastern Europe. Now the protector of the human rights of some 800 million Europeans from forty-seven different countries, the European system is once again deeply challenged — this time by a massive caseload as well as the Member States’ increased reluctance towards the Court.

Blame it on the WTO?

Sarah Joseph — 2011-09-22

Author:: Sarah Joseph
ISBN:: 9780199565894
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199565894.001.0001
Published in print:: 2011
Published Online:: 2011-09-22

The World Trade Organization (WTO) is often accused of, at best, not paying enough attention to human rights or, at worst, facilitating and perpetuating human rights abuses. This book weighs these criticisms and examines their validity, incorporating legal arguments as well as some economic and political science perspectives. After introducing the respective WTO and human rights regimes, and discussing their legal and normative relationship to each other, the book presents a detailed analysis of the main human rights concerns relating to the WTO. These include the alleged democratic deficit within the Organization and the impact of WTO rules on the right to health, labour rights, the right to food, and on questions of poverty and development. Given that some of the most important issues within the WTO concern its impact on poor people within developing States, the book asks whether rich States have an obligation to the people of poorer States to construct a fairer trading system that better facilitates the alleviation of poverty and development. Against this background, the book examines the current Doha round proposals as well as suggestions for reform of the WTO to make it more ‘human rights-friendly’.

War by Contract

Francesco Francioni and Natalino Ronzitti — 2011-05-01

Author:: FrancescoFrancioniProfessor of International Law and Human Rights and Co-Director of the Academy of European Law EUIhttp://www.eui.eu/DepartmentsAndCentres/Law/People/Professors/Francioni.aspx#BooksNatalinoRonzittiProfessor of International Law, LUISS University School of Law, Romehttp://docenti.luiss.it/ronzitti/
ISBN:: 9780199604555
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199604555.001.0001
Published in print:: 2011
Published Online:: 2011-05-01

The growth in scope and importance of the private military and security industry (PMSI) in the past decade has challenged the role of the state as the main provider of defence and security functions. At the same time it has put under stress the state's authority to properly oversee the conduct of private contractors and has raised the question whether existing rules of domestic law and international law are adequate to ensure their accountability in the event of abuses. This book addresses this second question through the lens of international human rights law and international humanitarian law and offers a systematic analysis of the way in which these two bodies of international law, applicable in time of peace and in the event of armed conflict, may be interpreted and implemented in a way as to fill possible accountability gaps. Human rights and humanitarian law obligations are analysed from the point of view of their applicability to the states involved, to international organisations, to the companies and their individual employees. Access to civil remedies of potential victims and criminal prosecution of private contractors, as well as new policy issues, such as the use of private contractors in the fights against piracy, are also covered in the book.

Collective Security

Alexander Orakhelashvili — 2011-05-01

Author:: Alexander Orakhelashvili
ISBN:: 9780199579846
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199579846.001.0001
Published in print:: 2011
Published Online:: 2011-05-01

This is the first comprehensive study of the role, powers and functions of international institutions in the area of peace and security, including both inter-state wars and crises and intra-state situations such as civil wars and serious violations of the rights of individuals and peoples. It examines collective security as one single system consisting of the United Nations and regional security institutions, the foundation of which is laid in Chapter VIII of the UN Charter. The operation of this single system involves multiple ways of inteaction between institutions, ranging from collaboration to confrontation. This study draws on the principles that determine the competence of collective security institutions and provide both the guidance for inter-institutional interaction and the criteria of legitimacy of decisions by the relevant institution. The treatment of this area, and of collective security as a whole, is premised on the consensual imperative that allows extending institutional powers only so far as states have delegated these powers to institutions. This impacts not only on which basis institutions can take action, but also the legal consequences of that action, including the issues of responsibility, judicial review, and implementation of institutional decisions by states.

The Reception of International Law in the European Court of Human Rights

Magdalena Forowicz — 2011-01-01

Author:: Magdalena Forowicz
ISBN:: 9780199592678
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199592678.001.0001
Published in print:: 2010
Published Online:: 2011-01-01

This book provides an overview of the reception of international law in the case law of the European Commission on Human Rights (ECommHR) and the European Court of Human Rights (ECtHR). It evaluates whether the Strasbourg bodies were able to create a coherent and comprehensive approach to the interpretation and evaluation of international law. The Strasbourg bodies' interactions with the international legal order and other special regimes reveal important lessons for the good functioning of the ECHR and international law alike. This book thus probes whether the Court has been able to contribute to international law and to the resolution of the fragmentation problem. It assesses fragmentation in specific areas of international human rights law and general international law at the level of the European public order. In this context, an important matter to consider is the extent to which the Court behaves autonomously and/or falls back on international law, either special or general. Further, the book discusses the question whether the Court or the Commission have sufficiently recognized that international law is a system and whether they have integrated the ECHR into this framework. The book covers six special regimes, namely international civil and political rights, international child rights, international refugee rights, international humanitarian law, the prohibition against torture, and State immunity. It also evaluates two areas of general international law, namely the law of treaties and the case law and Statute of the International Court of Justice.

Protecting Human Security in Africa

Ademola Abass — 2011-01-01

Author:: AdemolaAbassProfessor of International Law & Organizations, Brunel University
ISBN:: 9780199578986
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199578986.001.0001
Published in print:: 2010
Published Online:: 2011-01-01

This book discusses some of the most potent threats to human security in Africa. It deals especially with those threats to the security of African people which are least understood or explored. In themes varying from corruption, the proliferation of small arms and light weapons, food security, the devastation of internal displacement in Africa, the link between natural resources and human security, to the problems of forced labour, threats to women's security, and environmental security, the book examines the legal and policy challenges of protecting human security in Africa. This book also analyses the role of NGOs and the civil society in advocating human security issues in Africa. It considers the role of regional human rights mechanisms and judicial bodies, such as the African Commission for Human Rights and the African Court of Human and Peoples' Rights, in seeking to guarantee human security in Africa. Finally, with particular reference to the Somalia, Zimbabwe, Kenya, and Darfur crises, the book studies the role of African regional organizations, especially the African Union, in protecting the human security of Africans.

Judicial Creativity at the International Criminal Tribunals

Shane Darcy and Joseph Powderly — 2011-01-01

Author:: ShaneDarcyLecturer, Irish Centre for Human Rights, National University of Ireland, GalwayJosephPowderlyResearcher in International Humanitarian & Criminal Law, T.M.C. Asser Institute, The Netherlands
ISBN:: 9780199591466
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199591466.001.0001
Published in print:: 2010
Published Online:: 2011-01-01

As the International Criminal Tribunals for the former Yugoslavia and Rwanda enter the final phase of their work, it is an appropriate time to reflect on the significant contribution that these unique institutions have made to the development of international criminal law. Judgments issued by the ad hoc tribunals have served to clarify and elucidate key concepts and principles of international criminal law. On several occasions, this practice and jurisprudence has pushed the progressive development of this dynamic and growing branch of international law. This book examines the specific development of international criminal law by the Rwanda and Yugoslavia tribunals in the areas of sources of law, substantive crimes, criminal liability, defences, fair trial rights, and procedure. Several chapters address the theories of interpretation employed by judges at the ad hoc tribunals and the challenges presented by judicial creativity in international criminal trials. This book provides a thoughtful analysis by scholars, practitioners, and judges of the profound changes in the field that are attributable to the judicial creativity demonstrated at the International Criminal Tribunals for Rwanda and the former Yugoslavia.

Friendly Settlements before the European Court of Human Rights

Helen Keller, Magdalena Forowicz, and Lorenz Engi — 2011-01-01

Author:: Helen Keller, Magdalena Forowicz, Lorenz Engi
ISBN:: 9780199600977
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, EU Law
DOI:: 10.1093/acprof:oso/9780199600977.001.0001
Published in print:: 2010
Published Online:: 2011-01-01

The friendly settlement procedure is an important tool for the reduction of the European Court of Human Rights' (ECtHR) case load. Recent practice demonstrates that this procedure is increasingly resorted to by applicants and Contracting States. This book evaluates this largely unexplored instrument from doctrinal as well as practical perspectives, making recommendations to render the negotiations before the ECtHR more efficient and professional. The book examines questions relating to the admissibility as well as to the practical manageability of friendly settlements. In contrast to ordinary civil proceedings, the friendly settlements procedure has a mixed legal character: while settlements are an inter-partes procedure, they are also binding under international law, as the ECtHR often hands them down in the form of a judgment. In this context, the question arises as to how far the proceedings can be ‘privatised’ and where the limits to the monetisation of human rights violation lie. This book evaluates possible abuses and identifies the precautions that need to be taken in the framework of friendly settlements. This issue is linked to the question of whether the legal framework which governs the conclusion of a friendly settlement should be formulated in a more concrete manner, given that the position of the parties is unequal and that the role of the Court is hardly defined in this context. Furthermore, the book empirically examines whether the friendly settlement procedure is as advantageous in comparison to ordinary proceedings as others have argued. It also questions whether the friendly settlements procedure can provide the applicant with ‘more money faster’.

The Right to Life and Conflicting Interests

Elizabeth Wicks — 2010-09-01

Author:: Elizabeth Wicks
ISBN:: 9780199547395
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, Medical Law
DOI:: 10.1093/acprof:oso/9780199547395.001.0001
Published in print:: 2010
Published Online:: 2010-09-01

The right to life is a core human right which has not yet received the detailed legal analysis that it requires. This book provides detailed, critical analysis of the controversial human right to life and, in particular, assesses the weight of conflicting interests which could and/or should serve to override the right. This contemporary study of the right to life focuses on the legal, as well as ethical, issues raised by the value of life in modern day society. It seeks to analyse the development, meaning and value of the fundamental human right to life in the context of its conflicts with other competing interests. The book begins with an overview of the right to life in which the concept of life itself is first analysed, before both the right and its legal protection and enforcement are subjected to historical, philosophical and comparative analysis. The remainder of the book identifies, and assesses the merits of, various competing interests. These comprise armed conflict; prevention of crime; rights of others; autonomy; quality of life; and finite resources. The right to life is unusual in having potential application to so many of today’s ethically controversial questions. This new work investigates specific topics of current political, legal and ethical concern such as the right to life during international conflicts, the role of lethal force in law enforcement, the death penalty, the right to life of a foetus in the context of legalized abortion, and the significance of quality of life and autonomy issues in respect of euthanasia and assisted suicide.

Minority Rights in the Pacific Region

Joshua Castellino and David Keane — 2010-09-01

Author:: Joshua Castellino, David Keane
ISBN:: 9780199574827
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199574827.001.0001
Published in print:: 2009
Published Online:: 2010-09-01

The book examines the extent to which States in the Pacific region have put in place legislative and administrative measures designed to promote and protect the rights of minorities and indigenous peoples within their State. The book starts by identifying and classifying the various States in the region, and commenting on general trends that are visible across the region. This analysis includes Australia, New Zealand, and the Pacific Island Countries in the geographic boundaries of Micronesia, Melanesia, and Polynesia. The region is assessed against human rights standards, and the extent to which State practice conforms to international standards. There are five chapters in the book. The opening chapter conducts a tour d'horizon of the Pacific, identifying the states, delivering a history of the development of the region, comments on theories concerning the original migration of peoples, narrates colonial expeditions and enterprises, and assesses the emergence of independent government and institutions. The record of engagement with international human rights law is examined, in particular the States' ratification of human rights covenants. The attempt to implement a regional human rights mechanism for the Pacific is described with the merits of such a project debated. The subsequent four chapters are case-studies, designed to expose in detail, the extent to which indigenous and minority rights are implemented in the Pacific. Four states were chosen as representative of the challenges that face these groups in the region: Australia, New Zealand, Fiji, and Papua New Guinea. Each chapter is broken-down into four sections, according to the structure of the book series engaging with the history, identification of indigenous and minority groups, the rights of indigenous and minority groups, and the legal and other remedies available.

The Law of Organized Religions

Julian Rivers — 2010-09-01

Author:: Julian Rivers
ISBN:: 9780199226108
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199226108.001.0001
Published in print:: 2010
Published Online:: 2010-09-01

This book studies the law of England and Wales as it applies to organized religions. It starts with the legal history of the topic from Roman times to the present day. Current legal arrangements can only be understood against this changing background. In the last decade, a substantial body of international and European human rights law relating to religious associations has also emerged by which domestic law must be evaluated. The human rights dimension of the subject is noted throughout the rest of the work. The legal constitution of religious bodies in English law is clarified, and the enforceable rights of members enumerated. This requires somewhat fuller discussion of problems around property division on schism and the legal position of religious tribunals. The special legal status of ministers of religion in terms both of the nature of the employment relationship and other legal privileges receives separate treatment. The use that English law makes of categories of public religion to control access to privilege is then highlighted. This includes, but is not limited to, charitable status. A range of legally regulated collective rites is covered before the book engages in a detailed exposition of the law relating to chaplaincies, faith schools and faith-based welfare. Forms of access to public discourse by way of representation in the House of Lords, new multi-faith forums and religious broadcasting are also discussed. The final chapter searches for the underlying constitutional principles at stake. It clarifies and rejects establishment and secularism as inadequate models, instead locating the law between the two. The law largely reflects the values of the autonomy of organized religions and state neutrality and, in the face of some countervailing tendencies noted throughout the book, should continue to do so.

Genocide and Political Groups

David L. Nersessian — 2010-09-01

Author:: David L. Nersessian
ISBN:: 9780199588909
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199588909.001.0001
Published in print:: 2010
Published Online:: 2010-09-01

This book provides an examination of the crime of genocide in connection with political groups. It offers an empirical study of the current status of political groups under customary international law, as well as a theoretical analysis of whether political genocide should be recognized as a separate crime by the international community. The book analyses whether a stand-alone crime of political genocide should be recognized under international law. It begins by examining the historical development of genocide and critically assessing the unique requirements of the crime. It then demonstrates that other international offences—notably crimes against humanity and war crimes—are not workable substitutes for a specific offence that protects political groups. This is followed by an analytical study of the protection of human groups under international law. The book proposes a new theory that links the protection of groups to individual rights of a certain character that give rise to the group's existence. It then applies this ‘rights-based approach’ in evaluating whether political groups are legitimate candidates for specific protection from physical and biological destruction ‘as such’. The writing includes an analysis of state practice and opinio juris on the treatment of political groups. It empirically refutes claims that political groups are protected already from genocide by virtue of post-Convention developments in customary international law. In response to this legal reality, however, the book analyses the theoretical and public policy justifications for international criminal law and demonstrates that the international community would be well served by creating a separate international crime to address political genocide.

Extraterritorial Use of Force Against Non-State Actors

Noam Lubell — 2010-09-01

Author:: Noam Lubell
ISBN:: 9780199584840
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199584840.001.0001
Published in print:: 2010
Published Online:: 2010-09-01

This book analyses the primary relevant rules of international law applicable to extraterritorial use of force by states against non-state actors. Force in this context takes many forms, ranging from targeted killings and abductions of individuals to large-scale military operations amounting to armed conflict. Actions of this type have occurred in what has become known as the ‘war on terror’, but are not limited to this context, and the analysis in this book covers a more definable scope: unilateral, extraterritorial, forcible measures against non-state actors. Three frameworks of international law are examined. These are the framework of international law regulating the resort to force in the territory of other states, the law of armed conflict, and international human rights law. The book examines the applicability of these frameworks to extraterritorial forcible measures against non-state actors, and analyses the difficulties and challenges presented by application of the rules to these measures. The issues covered include, among others: the possibility of self-defence against non-state actors, including anticipatory self-defence, the lawfulness of measures that do not conform to the parameters of self-defence, the classification of extraterritorial force against non-state actors as armed conflict, the ‘war on terror’ as an armed conflict, the laws of armed conflict regulating force against groups and individuals, the extraterritorial applicability of international human rights law, and the regulation of forcible measures under human rights law.

Discovering Indigenous Lands

Robert J. Miller, Jacinta Ruru, Larissa Behrendt, and Tracey Lindberg — 2010-09-01

Author:: Robert J. Miller, Jacinta Ruru, Larissa Behrendt, Tracey Lindberg
ISBN:: 9780199579815
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199579815.001.0001
Published in print:: 2010
Published Online:: 2010-09-01

England explored and colonized the United States, Australia, New Zealand, and Canada under the authority of an international law called the Doctrine of Discovery. When Europeans set out to exploit and expropriate the lands, commercial, governmental, and human rights of the indigenous peoples of Australia, Canada, New Zealand, and the United States in the 15th through to the 20th centuries, they justified their sovereignty and claims over these territories and over indigenous peoples with the Discovery Doctrine. This legal principle was justified by religious and ethnocentric ideas of European and Christian superiority over the other cultures, religions, and races of the world. The Doctrine provided that newly-arrived Europeans automatically acquired property rights in the lands of indigenous peoples and gained political and commercial rights over the indigenous inhabitants. The United States Supreme Court expressly adopted Discovery in 1823 in Johnson v. M'Intosh. This case and the Doctrine of Discovery has been cited and relied on by Australian, Canadian, New Zealand, and United States governments, courts, and colonists. The English colonial governments and colonists in all four countries utilized Discovery principles and arguments, and these governments continue to use Discovery today to exercise legal powers over indigenous peoples. The elements of Discovery were not applied in the exact same manner and at the exact same time periods in all four countries, but the similarities of the use of Discovery are striking and not the least bit surprising since the Doctrine was English colonial law. Viewing Australian, Canadian, New Zealand, and American history and law in light of the international law Doctrine of Discovery creates a more complete understanding of all four countries and of what colonial law has done to indigenous lands.

The Treatment of Combatants and Insurgents under the Law of Armed Conflict

Emily Crawford — 2010-05-01

Author:: Emily Crawford
ISBN:: 9780199578962
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199578962.001.0001
Published in print:: 2010
Published Online:: 2010-05-01

Currently, International Humanitarian Law (IHL) also known as the law of armed conflict, makes the distinction between international and non-international armed conflicts. International armed conflicts are regulated by more treaties than their non-international counterparts. Furthermore, the regulation of international armed conflicts is also considerably more comprehensive than that offered for participants in and victims of non-international armed conflicts. This book asks whether the legal distinction between international and non-international armed conflicts remains viable or whether international law should move to maintain its consonance with the situations it seeks to regulate by developing a unified legal regime applicable in all armed conflicts. There is considerable precedent to support moves towards the elimination of the legal distinction between international and non-international armed conflicts. This book argues that IHL, a law which has, as one of its primary aims, the protection of the person in times of armed conflict, should not distinguish between types of armed conflict, specifically in how the law treats the vulnerable in times of armed conflict – those hors de combat due to illness and injury, and those deprived of their liberty through capture or surrender

The European Convention on Human Rights and the Conflict in Northern Ireland

Brice Dickson — 2010-05-01

Author:: Brice Dickson
ISBN:: 9780199571383
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199571383.001.0001
Published in print:: 2010
Published Online:: 2010-05-01

This book provides a comprehensive account of the role played by the European Convention on Human Rights during the conflict in Northern Ireland from 1968. It studies the effectiveness of the Convention in protecting human rights in a society wracked by terrorism and deep political conflict, detailing the numerous applications lodged at Strasbourg relating to the conflict and considering how they were dealt with by the enforcement bodies. The book illustrates the limitations inherent in the Convention system but also demonstrates how the European Commission and Court of Human Rights gradually developed a more interventionist approach to the applications emanating from Northern Ireland. In turn, this allowed the Convention to become a more secure guarantor of basic rights and freedoms during times of extreme civil unrest and political turmoil elsewhere in Europe. The topics examined include the right to life, the right not to be ill-treated, the right to liberty, the right to a fair trial, the right to a private life, the right to freedom of belief, the right to freedom of expression, the right to freedom of assembly, and the right not to be discriminated against. The book argues that, while eventually the European Court did use the applications from Northern Ireland to establish important human rights principles, their development was slow and arduous, and some gaps in protection still remain. The book illustrates the limits of the European Convention as a tool for protecting human rights in times of crisis.

EU Counter-Terrorist Policies and Fundamental Rights

Christina Eckes — 2010-05-01

Author:: Christina Eckes
ISBN:: 9780199573769
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, EU Law
DOI:: 10.1093/acprof:oso/9780199573769.001.0001
Published in print:: 2009
Published Online:: 2010-05-01

Sanctions against private individuals have been widely used in the fight against terrorism, but not without significant controversy. This book examines the complex institutional and substantive issues arising from the European Union's practice of listing and sanctioning private individuals suspected of supporting terrorism. It provides a comprehensive analysis of the issues raised by individual sanctions adopted to give legal effect to United Nations lists and those drawn up by the EU itself. The book demonstrates that individual sanctions endanger the protection of fundamental rights and the functioning of the European legal order. While the ECJ has in principle confirmed that all Community sanctions are subject to full judicial review irrespective of whether they give effect to UN lists or EU lists, in practice individuals do not have the necessary procedural rights at their disposal. Additionally, protection from listings of individuals as terrorist suspects in the second and third pillar remains very limited. This raises the possibility that national constitutional courts could challenge the supremacy of European law in reaction to this disregard of fundamental rights and foundational principles. The book provides a comprehensive analysis of these complex legal issues, and situates them in their international context. The basis of the book is a critical review of the case-law of the CFI and the ECJ on individual sanctions. Conclusions are drawn as to how the EU Courts should provide fundamental rights protection, and suggestions are made for how the adoption procedure of individual sanctions could comply with general principles of EU law.

Prosecuting Serious Human Rights Violations

Anja Seibert-Fohr — 2010-02-01

Author:: Anja Seibert-Fohr
ISBN:: 9780199569328
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, Criminal Law and Criminology
DOI:: 10.1093/acprof:oso/9780199569328.001.0001
Published in print:: 2009
Published Online:: 2010-02-01

Criminal punishment is increasingly regarded as a necessary element of human rights protection. There is a growing conviction at the international level that those responsible for the most serious crimes should not go unpunished. Though there is a wealth of legal writing on international criminal law, the question why and to what extent criminal prosecution is a necessary means of human rights protection has hardly been addressed comprehensively. This book examines the duty to prosecute serious human rights violations. It does so by exploring the concepts of impunity and amnesties, and by exposing flaws in criminal proceedings. With its survey of the relevant human rights instruments and jurisprudence, the subject of this book is placed at the interface of international criminal law and international human rights. The book analyses the rapidly growing body of human rights case law, dealing with criminalization, prosecution, and punishment of serious human rights violations. It identifies and critically examines the standards for the conduct of criminal proceedings developed by the European and Inter-American Courts of Human Rights and the UN Human Rights Committee. As the analysis reveals shortcomings in the current conceptualization of the prosecution of human rights violations, the book develops a solid theoretical framework for future jurisprudence. By evaluating the relationship between criminal law and the protection of human rights, the book elucidates not only the potential but also the limits of the role human rights law can play in the emerging concept of international criminal justice. The underlying rationale for prosecuting serious human rights violations is also relevant for post-conflict situations, in which it is often argued that criminal punishment threatens peace and reconciliation. The question how to deal with post-conflict justice under international law is a continuing theme throughout the book.

Private Security, Public Order

Simon Chesterman and Angelina Fisher — 2010-02-01

Author:: SimonChestermanGlobal Professor and Director of the New York University School of Law Singapore Programme, and an Associate Professor of Law at the National University of Singaporehttp://its.law.nyu.edu/facultyprofiles/profile.cfm?personID=23838AngelinaFisherInstitute Fellow and Programme Director of the Institute for International Law and Justice at New York University School of Law
ISBN:: 9780199574124
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199574124.001.0001
Published in print:: 2009
Published Online:: 2010-02-01

Private actors are increasingly taking on roles traditionally arrogated to the state. Functions essential to external and internal security and to the satisfaction of basic human needs are routinely contracted out to non-state agents. In the area of privatization of security functions, attention by academics and policy makers tends to focus on the activities of private military and security companies, especially in the context of armed conflicts, and their impact on human rights and post-conflict stability and reconstruction. The first edited volume emerging from New York University School of Law's Institute for International Justice project on private military and security companies, From Mercenaries to Market: The Rise and Regulation of Private Military Companies, looked at the emerging market for force, whereas this second volume looks at the transformations in the nature of state authority. Drawing on insights from work on privatization, regulation, and accountability in the emerging field of global administrative law, this book examines private military and security companies through the wider lens of private actors performing public functions. The central question of this volume is whether there should be any limits on government capacity to outsource traditionally ‘public’ functions. Can and should a government put out to private tender the fulfilment of military, intelligence, and prison services? Can and should it transfer control of utilities essential to life, such as the supply of water? Discussion incorporates numerous perspectives on regulatory and governance issues in the private provision of public functions, but focuses primarily on private actors offering services that impact the fundamental rights of the affected population.

International Development Law

Rumu Sarkar — 2010-02-01

Author:: Rumu Sarkar
ISBN:: 9780195398281
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, Public International Law
DOI:: 10.1093/acprof:oso/9780195398281.001.0001
Published in print:: 2009
Published Online:: 2010-02-01

This legal text provides a theoretical and practical overview of the international legal architecture between developing countries and advanced nations. The text is divided into two parts, the first part providing a theoretical overview of the philosophical implications of international development law principles. Specifically, substantive legal principles with respect to the parties, institutions, and legal norms are discussed providing the reader with a concise and innovative framework in which to analyze development issues. A more practical, “projectized approach” to the development process is also examined based on official development assistance programs of the World Bank and other institutions. Finally, the “right to development” within the international human rights discourse is critically reviewed. The second part deals with the international financial architecture and provides a critical review of international borrowing practices leading to the debt overhang and related problems. Additionally, privatization and capital market growth are examined as critical elements of encouraging broad based economic development that may lead to sustainable development overall. In brief, this legal text offers a fresh, new, and balanced legal perspective on the development process. The text has been rigorously researched and has many practical facets based on professional experience within the development field.

Human Rights in International Investment Law and Arbitration

Pierre-Marie Dupuy, Ernst-Ulrich Petersmann, and Francesco Francioni — 2010-02-01

Author:: Pierre-MarieDupuyProfessor of Public International Law, Graduate Institute of International and Development Studies in GenevaErnst-UlrichPetersmannProfessor of International and European Law and Head of the Law Department, European University Institute, FlorenceFrancescoFrancioniProfessor of International Law and Human Rights, European University Institute, Florencehttp://www.eui.eu/DepartmentsAndCentres/Law/People/Professors/Francioni.aspx#Books
ISBN:: 9780199578184
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199578184.001.0001
Published in print:: 2009
Published Online:: 2010-02-01

The book offers a systematic analysis of the interaction between international investment law, investment arbitration, and human rights, such as the role of national and international courts, investor-state arbitral tribunals and alternative jurisdictions, the risks of legal and jurisdictional fragmentation, the human rights dimensions of investment law and arbitration, and the relationships of substantive and procedural ‘principles of justice’ to international investment law. Part I summarizes the main conclusions of the twenty-four book chapters and places them into the broader context of ‘principles of justice’, ‘global administrative law’, and of ‘multilevel constitutionalism’ that may be relevant for judicial ‘administration of justice’ in international economic law and investor-state arbitration. Part II includes contributions clarifying the ‘constitutional dimensions’ of transnational investment disputes and investor-state arbitration, as reflected in the increasing number of arbitral awards and amicus curiae submissions addressing human rights concerns. Part III addresses the need for ‘principle-oriented ordering’ and ‘normative congruence’ of diverse national, regional and worldwide legal regimes, focusing on the pertinent dispute settlement practices and legal interpretation methods of regional economic courts and human rights courts. Part IV includes twelve case studies on potential human rights dimensions of specific ‘protection standards’, applicable law, procedural law issues, and specific fundamental rights. These case-studies discuss not only the still limited examples of human rights discourse in investor-state arbitral awards; they also probe the potential legal relevance of investor-state arbitration for the judicial recognition, interpretation, and ‘balancing’ of ‘primary rules’ in the light of ‘principles of justice’, as defined by national and international law.

Ulpian

Tony Honoré — 2010-01-01

Author:: Tony Honoré
ISBN:: 9780199244249
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199244249.001.0001
Published in print:: 2002
Published Online:: 2010-01-01

This is the only full-scale modern account of the life and work of the early 3rd-century lawyer from Syria who contributed two-fifths of Justinian’s 6th-century Digest, which for many centuries formed the staple of European legal education. His writing has been at least as influential as that of any lawyer, ancient or modern. As an intellectual in government he not only wrote about Roman law and administration, public and private, on a massive scale but also played a full part in the turbulent life of the Severan dynasty (193–235), until his murder by rebellious troops in 223 or 224 AD. The second edition stresses Ulpian’s claim to be the first lawyer to adumbrate human rights. He expounded Roman law to the cosmopolitan society of his time, in which citizenship was extended to all free people of the empire, as a system based on reason and equity designed for people, including slaves, who were by nature free and equal. In dealing with legal problems his works argue from example and analogy and appeal to consideration of utility and equity in a way not unlike that of Anglo-American lawyers. The book examines Ulpian’s claim that law is the true ‘philosophy’.

Some Landmarks of Twentieth Century Contract Law

Guenter Treitel — 2010-01-01

Author:: Guenter Treitel
ISBN:: 9780199255757
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, Legal History
DOI:: 10.1093/acprof:oso/9780199255757.001.0001
Published in print:: 2002
Published Online:: 2010-01-01

This book discusses three of the most important developments in the law of contract in the 20th century. A short introduction explains the choice of topics and gives an account of the project (initiated in the 1960s and later abandoned) to codify this branch of the law. Chapter 1 deals with agreements to vary contracts and in particular with obstacles to the legal effectiveness of such agreements presented by the doctrine of consideration, under which something of value must be given for a promise to make it legally binding. It explains how the courts have mitigated these difficulties, especially by using the concepts of ‘estoppel’ and ‘practical benefit’. Chapter 2 starts with an account of the doctrine of privity, by which a contract can be enforced only by and against a party to it; and then considers attempts to erode that doctrine by the courts (e.g., by use of the concepts of trust, tort, vicarious immunity, and bailment on terms); by contractual draftsmanship (e.g., by so-called ‘Himalaya Clauses’); and by legislation such as the Contracts (Rights of Third Parties) Act 1999. Chapter 3 deals with the classification of contractual terms into conditions, warranties, intermediate terms and fundamental terms; the distinctions are discussed mainly in the context of the question whether the breach of a term by one party justifies rescission of the contract by the other.

Sceptical Essays on Human Rights

Tom Campbell, Keith Ewing, and Adam Tomkins — 2010-01-01

Author:: TomCampbellAustralian National UniversityKeithEwingKing's College Londonhttp://www.kcl.ac.uk/law/people/academic/kewing.aspxAdamTomkinsUniversity of Oxfordhttp://www.gla.ac.uk/departments/schooloflaw/staff/academic/tomkinsa/
ISBN:: 9780199246687
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199246687.001.0001
Published in print:: 2001
Published Online:: 2010-01-01

The Human Rights Act 1998 of the United Kingdom is the latest in a wave of legislative and constitutional instruments that have been passed in a number of countries (including Canada, New Zealand and South Africa) and which put human rights at the top of the public law agenda. For the most part, these instruments are widely welcomed by senior judges and by academic and practising lawyers, many of whom will have campaigned for their introduction. There are, however, very considerable doubts about the wisdom of these developments within the democratic tradition of government which remain unanswered. This book endorses the importance of human rights within any democratic system of government, but questions whether the primary responsibility for the articulation of these rights ought to be taken away from the normal political processes of representative government; it also considers the constitutional implications of doing so. Specifically, the extensive shift of political authority to the judiciary which is involved in the British Human Rights Act is critically examined and other ways of specifying and promoting human rights in more democratic forums are considered. Particular attention is paid to the priority which should be given to economic and social rights within the new constitutional settlement. Overseas contributions, ranging from Eastern Europe to South Africa, via North America and Australasia, illustrate the pitfalls of importing other constitutional models.

Remedies in International Human Rights Law

Dinah Shelton — 2010-01-01

Author:: Dinah Shelton
ISBN:: 9780199207534
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199207534.001.0001
Published in print:: 2006
Published Online:: 2010-01-01

This book provides a comprehensive treatment of remedies for human rights violations and reviews the jurisprudence of international tribunals on these violations. It provides a theoretical framework and a practical guide on human rights law. This edition incorporates a new chapter on historical injustices. All the cases of the Inter-American and European Courts of Human Rights are included, as well as decisions of the African and Inter-American Commissions on Human Rights, UN bodies, the European Court of Justice, international administrative tribunals, and national courts applying human rights law.

Religious Freedom in the Liberal State

Rex Ahdar and Ian Leigh — 2010-01-01

Author:: Rex Ahdar, Ian Leigh
ISBN:: 9780199253623
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199253623.001.0001
Published in print:: 2005
Published Online:: 2010-01-01

There is a growing recognition of the challenge that religions pose for pluralist, multicultural democracies. ‘Fundamentalist’ beliefs and practices test the limits of religious freedom, and seem to contradict the very basis on which liberal states protect religious liberty. Religions, moreover, are often associated with intolerance and persecution, yet insist upon religious liberty for themselves. This book inverts these stereotypes by presenting a sustained critique of how religious liberty ought to be understood in liberal legal systems and develops an alternative, Christian response. The prevailing liberal approach to religious freedom is compared with historic and contemporary understandings developed by Christian theorists, and an alternative principled basis for religious liberty, from a distinctively Christian position, is developed. The variety of stances the liberal state may take towards organised religions are analysed, and the nature of the guarantees for religious freedom in domestic and international law is explained. The difficult question of precisely when and how far religious liberty should be limited is also considered. This book also deals with concrete contemporary controversies involving the recognition and protection of religious beliefs and conduct, looking at issues such as family and parenting, medical treatment, education, employment, religious group autonomy, and freedom of expression and protest. Extensive reference is made throughout the analysis to UK law and the European Convention on Human Rights, as well as the laws of other jurisdictions such as the US, Canada, South Africa, Australia, and New Zealand.

Protecting Human Rights

Tom Campbell, Jeffrey Goldsworthy, and Adrienne Stone — 2010-01-01

Author:: TomCampbellProfessorial Fellow, Centre for Applied Philosophy and Public Ethics, Charles Sturt UniversityJeffreyGoldsworthyProfessor of Law, Faculty of Law, Monash UniversityAdrienneStoneFellow, Law Program, Research School of Social Sciences, Australian National University
ISBN:: 9780199264063
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199264063.001.0001
Published in print:: 2003
Published Online:: 2010-01-01

This volume addresses two issues surrounding human rights in both law and politics. First, it considers the content and form of human rights. What is and what is not to be counted as a human right, and what does it mean to identify a right as a human right? Secondly, it considers the implementation of human rights. What are the most effective and legitimate means of promoting human rights? Both of these issues raise profound moral questions within legal and political philosophy. The contributions within this volume address the conceptual and moral issues deriving from the expansion of rights discourse and explore the variety of institutional mechanisms that may be adopted to protect and further human rights. At the same time, they illustrate the complex relationship between defining human rights and adopting particular modes of institutional implementation.

Private Property and Abuse of Rights in Victorian England

Michael Taggart — 2010-01-01

Author:: Michael Taggart
ISBN:: 9780199256877
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, Legal History
DOI:: 10.1093/acprof:oso/9780199256877.001.0001
Published in print:: 2002
Published Online:: 2010-01-01

The case of The Mayor, Aldermen and Burgesses of the Borough of Bradford v Pickles was the first to establish the principle that it is not unlawful for a property owner — in this case, Edward Pickles — to exercise his property rights maliciously and to the detriment of others or the public interest. Though controversial at the time, today it is often invisible and taken for granted. This book explores why the common law, in contrast to civil law systems, developed in this way. During the industrial revolution, the town of Bradford in England, and with it the demand for water for industrial and domestic purposes, grew rapidly. The first part of the book explores, through an analysis of correspondence, records, and newspaper reports, the development of the Bradford water supply and the genesis of the dispute that ultimately flared into litigation at the end of the 19th century. Several aspects of the case are of enduring doctrinal importance 100 years on. The controversial and potent common law principle of interpreting statutes so as to protect property rights wherever possible is examined in depth, as is the legal uncertainty of subterranean water rights in the 19th century. The book also explains the common lawyers' refusal to recognise a continental-style doctrine of abuse of rights and the courts' failure to develop a prima facie tort doctrine to curb maliciously inspired behaviour.

Peace Agreements and Human Rights

Christine Bell — 2010-01-01

Author:: Christine Bell
ISBN:: 9780199270965
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199270965.001.0001
Published in print:: 2003
Published Online:: 2010-01-01

This book examines the place of human rights in peace agreements against the backdrop of international legal provision. The book examines the role of peace agreements in peace processes, drawing on an appendix of over 100 peace agreements signed after 1990, in over forty countries. Four sets of peace agreements are then examined in detail: those of Bosnia Herzegovina, Northern Ireland, South Africa, and the Israeli-Palestinian conflict. The human rights component of each of these agreements are compared with each other — focussing not on direct institutional comparison, but rather on the set of trade-offs that comprise the ‘human rights dimension’ of the agreements. This human rights dimension is also compared with relevant international law. The book focuses on the comparison of three main areas: self-determination and ‘the deal’, institution-building for the future, and dealing with the past. The book argues that the design and implementation prospects are closely circumscribed by the self-determination ‘deal’ at the heart of the agreement. It suggests that the entangling issues of group access to power with individual rights provision indicates the extent to which peace-making is a constitution-making project. The book argues in conclusion that peace agreements are in effect types of constitution, with valuable lessons about the role of law in social change in both violent conflict and more peaceful contexts.

The Oslo Accords

Geoffrey R. Watson — 2010-01-01

Author:: Geoffrey R. Watson
ISBN:: 9780198298915
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780198298915.001.0001
Published in print:: 2000
Published Online:: 2010-01-01

This book presents a legal analysis of the Oslo Accords. The book begins by rejecting suggestions that the Accords are non-binding political undertakings. It argues instead that they are binding international agreements between subjects of international law. The book next analyses Israeli and Palestinian compliance with the Accords. It concludes that each side has a mixed record of compliance, but that neither side has committed so serious a breach as to warrant termination of the Accords. Finally, the book offers some suggestions on how international law might help shape a final status agreement between the parties.

The Most Fundamental Legal Right

David Clark and Gerard McCoy — 2010-01-01

Author:: David Clark, Gerard McCoy
ISBN:: 9780198265849
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780198265849.001.0001
Published in print:: 2000
Published Online:: 2010-01-01

This book on habeas corpus throughout the Commonwealth explores the theme of the fortunes of the writ and the conditions under which it has either flourished or waned. Drawing upon a wide range of Commonwealth authorities, and including materials from the colonial period as well as from ex-Commonwealth or ex-empire states, this book considers the diffusion of the writ, the myths surrounding it, and the uses to which the writ has been put which distinguish the remedy from the English experience. The reach of the writ in time and space is considered especially in multi-jurisdictional and federal legal systems, as well as the availability of habeas corpus in non-custodial situations such as bail, house arrest, parole, and probation. Given the ubiquity of emergencies and military government for long periods in several jurisdictions, the fate of the writ under conditions of martial law and emergency rule is also considered. The constitutional status of the writ and the expansion of the role of the writ in states with a bill of rights are shown to have both enlivened the jurisprudence on the writ and expanded the ambit of habeas corpus review. Finally, a neglected aspect of the writ as used against detentions ordered by Parliament is discussed in the final chapter, where it is shown that the reach of review is far wider in a number of Commonwealth jurisdictions than in England itself.

International Human Rights and Islamic Law

Mashood A. Baderin — 2010-01-01

Author:: Mashood A. Baderin
ISBN:: 9780199285402
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199285402.001.0001
Published in print:: 2005
Published Online:: 2010-01-01

This book explores whether or not international human rights and Islamic law are compatible. It asks whether Muslim States can comply with international human rights law whilst adhering to Islamic law. The traditional arguments on this subject are examined and responded to from both international human rights and Islamic legal perspectives. The volume engages international human rights law in theoretical dialogue with Islamic law, facilitating an evaluation of the human rights policy of modern Muslim States. It formulates a synthesis between these two extremes, and argues that although there are differences of scope and application, there is no fundamental incompatibility between these two bodies of law. The author argues that their differences could be better addressed if the concept of human rights were positively established from within the themes of Islamic law, rather than by imposing it upon Islamic law as an alien concept. Each article of the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights, as well as relevant articles of the Convention on the Elimination of All Forms of Discrimination against Women, are analysed in the light of Islamic law. The book concludes that it is possible to harmonise the differences between international human rights law and Islamic law through the adoption of the ‘margin of appreciation’ doctrine by international human rights treaty bodies and the utilization of the Islamic law doctrines of ‘maqâsid al-sharî'ah’ (the overall objective of Sharî'ah) and ‘maslahah’ (welfare) by Muslim States in their interpretation and application of Islamic law, respectively.

International Crimes and the Ad Hoc Tribunals

Guénaël Mettraux — 2010-01-01

Author:: Guénaël Mettraux
ISBN:: 9780199207541
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199207541.001.0001
Published in print:: 2006
Published Online:: 2010-01-01

The contribution of the ad hoc tribunals to international criminal law and international justice has been manifold, both academically and historically, and they will continue to influence the findings and decisions of many other courts (both domestic and international), provoking discussion for many years to come. This volume provides the first comprehensive analysis of the law of international crimes as applied by the ad hoc tribunals for the former Yugoslavia and Rwanda. This book examines the legal and historical significance of some of the most important judicial developments to occur in the last fifty years in international criminal law. It states the law of the tribunals, and provides concrete illustrations of the application of the law to a variety of criminal cases, providing a comprehensive and detailed analysis of this voluminous body of jurisprudence. The primary focus is on the jurisdiction ratione materiae of the tribunals: the definition and application of the law of war crimes, crimes against humanity, and genocide. However, it also examines the tribunals’ jurisdiction ratione personae, insofar as this enables a full understanding of the law of crimes (for instance, in relation to forms of criminal liability).

Human Rights Obligations of Non-State Actors

Andrew Clapham — 2010-01-01

Author:: Andrew Clapham
ISBN:: 9780199288465
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199288465.001.0001
Published in print:: 2006
Published Online:: 2010-01-01

The threats to human rights posed by non-state actors are of increasing concern. Multinational corporations, armed oppositions groups, and the activities of international organizations such as the United Nations, NATO, and the European Union are increasingly examined with recourse to a human rights lens. This book presents an approach to human rights that goes beyond the traditional focus on states and outlines the human rights obligations of non-state actors and addresses some of the ways in which they can be held legally accountable in various jurisdictions. The political debate concerning the appropriateness of expanding human rights scrutiny to non-state actors is discussed and dissected. For some extending human rights into these spheres trivializes them and allows abusive governments to distract us from ongoing violations. For others such an extension is essential if human rights are properly to address the current concerns of women and workers. The main focus of the book, however, is on the legal obligations of non-state actors. The book discusses how developments in the fields of international responsibility and international criminal law have implications for building a framework for the human rights obligations of non-state actors in international law. In turn these international developments have drawn on the changing ways in which human rights are implemented in national law. A selection of national jurisdictions, including the United States, Canada, South Africa, and the United Kingdom is examined with regard to the application of human rights law to non-state actors.

Human Rights in International Criminal Proceedings

Salvatore Zappalà — 2010-01-01

Author:: Salvatore Zappalà
ISBN:: 9780199258918
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, Private International Law
DOI:: 10.1093/acprof:oso/9780199258918.001.0001
Published in print:: 2003
Published Online:: 2010-01-01

This book takes a procedural approach to human rights guarantees in international criminal proceedings and covers both the systems of the ad hoc Tribunals for the former Yugoslavia and Rwanda and the International Criminal Court. It analyzes the rights conferred on individuals involved in international criminal trials from the commencement of investigations to the sentencing stage, as well as the procedural rights of victims and witnesses. The study focuses on problems which have emerged in three main areas: (i) length of proceedings; (ii) absence of specific sanctions and other remedies for violation of procedural rules; (iii) the need to strengthen the protection of the accused from undue interference with his rights (likely to be caused by a variety of factors, such as conflicting governmental interests, the presence of malicious witnesses, or inadequate legal assistance). Three general suggestions are made to reduce the impact of these weaknesses. First, it could be helpful to adopt specific sanctions for violation of procedural rules (such as, the exclusion of evidence as a remedy for violations of rules on discovery). Second, (as has already been provided for in the ICC Statute,) the Prosecutor of the ad hoc Tribunals should play a proactive role in the search for the truth, by among other things gathering evidence that might exonerate the accused. Third, the right of compensation for unlawful arrest (or detention) and unjust conviction, provided for in the ICC Statute, should be extended to other serious violations of fundamental rights, and in addition should be laid down in the Statutes of the ICTY and ICTR.

Human Rights in Criminal Proceedings

Stefan Trechsel and Sarah Summers — 2010-01-01

Author:: Stefan Trechsel, Sarah Summers
ISBN:: 9780199271207
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, Criminal Law and Criminology
DOI:: 10.1093/acprof:oso/9780199271207.001.0001
Published in print:: 2006
Published Online:: 2010-01-01

During the last 50 years, interest in human rights has grown dramatically. While newspapers focus mainly on dramatic issues such as unlawful killing, torture, disappearances, or violations of freedom of speech, institutions charged with the implementation of human rights (as set out in international conventions and covenants) most frequently deal with allegations of human rights violations during criminal proceedings. The increasing internationalisation of the administration of criminal law means that such cases are likely to become ever more important. This book examines the case-law of the international bodies dealing with such cases. The European Commission and the European Court of Human Rights, in particular, have accumulated a considerable quantity of case-law, which is particularly interesting because it is intended to be valid in both Anglo-Saxon and Continental systems of criminal procedure. The law of the European Convention on Human Rights is emphasised because of its advanced procedures and the quality and quantity of its case-law.

Human Rights and the End of Empire

A. W Brian Simpson — 2010-01-01

Author:: A. W Brian Simpson
ISBN:: 9780199267897
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, EU Law
DOI:: 10.1093/acprof:oso/9780199267897.001.0001
Published in print:: 2004
Published Online:: 2010-01-01

This book provides a detailed account of the negotiation of the European Convention on Human Rights, the major achievement of the Council of Europe, and of its impact on the British Empire in its closing years. The book concentrates on the role of the United Kingdom in the negotiations, and the consequences which followed ratification. To provide the historical context for these negotiations it gives a detailed history of the protection of individual rights in the common law system, and of the rise of the movement for the international protection of human rights. This was largely a product of the Second World War, though having antecedents back in the 16th century and earlier.

Freedom of Speech

Eric Barendt — 2010-01-01

Author:: Eric Barendt
ISBN:: 9780199225811
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199225811.001.0001
Published in print:: 2007
Published Online:: 2010-01-01

This is a revised and updated edition of the work first published in 1985. There have been many developments since the first edition, including enactment of the Charter of Rights and Freedoms in Canada in 1982, the impact of the European Human Rights Convention, and the consideration by English courts of Judgments of the European Court of Human Rights. Social and cultural changes mean that free speech claims are being made in novel contexts: to challenge the validity of bans on tobacco advertising, to publish ‘kiss and tell’ stories about celebrities, and to resist attempts to regulate the Internet. This book considers the meaning and scope of freedom of speech. How far do free speech and expression clauses protect pornography, commercial advertising, and public meetings on the streets? Does this freedom cover desecration of a national flag? Does it include nude dancing? The book discusses the legal protection of free speech in countries including England, the United States (including recent decisions of the United States Supreme Court), Canada, Germany, and under the European Human Rights Convention. It examines the varied approaches of different legal systems and constitutional traditions to balancing free speech and freedom of the press against rights to reputation and privacy and to copyright, and explores the case law in light of the philosophical and political arguments for free speech guarantees.

The Empowered Self

Thomas Franck — 2010-01-01

Author:: Thomas Franck
ISBN:: 9780199248094
Publisher:: Oxford University Press
Subjects:: Law, Law of Obligations, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199248094.001.0001
Published in print:: 2001
Published Online:: 2010-01-01

This book examines the gradual emancipation of the individual in national and international law and the changing social attitudes towards personal choice in constituting identity. It demonstrates that this desire of persons for choice is not limited to Western industrial society but a historical development powered by such independent variables as urbanisation, the communications revolution, education, and economic development. These factors are changing the way persons affiliate: their attitudes towards nationality, religion, careers, sexuality, and gender roles. In the new climate of personal freedom, individuals increasingly select the components of their identity, choosing one or several from among multiple possible affiliations and questioning — even sometimes rejecting — the imposed or inherited forms of socialisation, but despite such resistance, the book demonstrates that we are now entering the age of the individual.

New Institutions for Human Rights Protection

Kevin Boyle — 2009-09-01

Author:: KevinBoyleProfessor of Law at the University of Essex
ISBN:: 9780199570546
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199570546.001.0001
Published in print:: 2009
Published Online:: 2009-09-01

Human rights institutions are indispensable if human rights are to be effectively protected. This collection of chapters addresses examples of new institution building in the human rights field at international, regional, and national levels. The United Nations Human Rights Council — a new intergovernmental body created in 2006 by the General Assembly to replace the UN Commission on Human Rights — is examined in several chapters. The Human Rights Council was designed to avoid the shortcomings of its predecessor including its politicization. Has it succeeded? Several contributions to the book discuss the Council's novel monitoring mechanism: Universal Periodic Review, whereby all states will submit to a regular scrutiny of their human rights record. The relationship between the Human Rights Council and its mechanisms with the other limbs of the UN protection system, the treaty bodies, and the High Commissioner for Human Rights are also critically considered. Another new human rights institution, the Fundamental Rights Agency of the European Union, has begun operating. One chapter examines in detail the different pressures which have shaped its formal legal mandate, in particular, the concerns of the Council of Europe over its potential encroachment on its human rights mission. Other chapters critically examine the development of national equality bodies working to eliminate racial discrimination in Europe, and the norms and institutions which have been built to defend the rights of minorities.

Democracy goes to War

Nigel White — 2009-09-01

Author:: Nigel White
ISBN:: 9780199218592
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199218592.001.0001
Published in print:: 2009
Published Online:: 2009-09-01

With the end of the Second World War there came the United Nations and a new world order based on the prohibition of military force in international relations, and yet since 1945 British troops have been regularly deployed around the globe: most notably to Korea, Suez, Cyprus, and the Falklands during the Cold War; and Kuwait, Bosnia, Kosovo, Afghanistan, and Iraq since the fall of the Berlin Wall. The decisions to deploy forces are political ones made within several constitutional frameworks, national, regional, and international. After considering the various legal and institutional regimes applicable to such deployments, the main purpose of this book is to examine the decision to deploy troops from the perspective of international law. In its military interventions since 1945, Britain has consistently tried to utilize international law to justify its actions, though often it argues against orthodox interpretation of the laws. In an area of law that is notoriously open-ended and contested, caution must be observed and the simple application of rules to the facts avoided. However, the inherent fluidity of international law must be balanced against the fact that there is consensus among states on certain fundamental rules, though that consensus must be constantly reappraised. In gauging whether Britain's actions are in breach of international law we can make judgements at different levels using various forms of accountability — from judicial fora (for example the International Court of Justice in the Hague or the European Court of Human Rights in Strasbourg), to political ones (the UN General Assembly in New York or the House of Commons in Westminster), though political ones dominate. While this book examines international and regional mechanisms, tumultuous debates on Suez, Afghanistan, Iraq, and others in the House of Commons and its Committees are highlighted to show how international law impacts upon domestic politics. In considering whether democratic accountability is effective in upholding the principles of international law, this book throws new light on an old democracy, and thereby makes a contribution to current reform proposals that are aimed at improving democratic decision-making.

Racism and Equality in the European Union

Mark Bell — 2009-05-01

Author:: Mark Bell
ISBN:: 9780199297849
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, EU Law
DOI:: 10.1093/acprof:oso/9780199297849.001.0001
Published in print:: 2009
Published Online:: 2009-05-01

During the past two decades, the European Union has become increasingly involved in combating racism. Most notably, EU legislation requires Member States to introduce laws prohibiting racial discrimination in many aspects of everyday life, such as employment, education, healthcare, and housing. Alongside legislation requiring action at national level, the EU institutions have also made periodic commitments to take anti-racism objectives into account within all areas of EU law and policy. The latter approach is often referred to as ‘mainstreaming’ and the technique is borrowed from earlier initiatives to promote the mainstreaming of gender equality. This book analyses the extent to which the objectives of combating racism and promoting ethnic equality have been effectively mainstreamed throughout a range of EU policy fields. It begins by considering what combating racism means in the contemporary context of an enlarged EU. Specifically, the book scrutinises what is entailed in mainstreaming ethnic equality objectives. The second part of the book turns to examining several areas of EU law and policy in order to identify the extent to which such objectives have been, in practice, integrated into these activities. Here, the book looks at topics such as employment, social inclusion (including education and health), immigration, and criminal law.