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The Access of Individuals to International Justice

Antônio Augusto Cançado Trindade

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, ... More

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.Less

Access to Justice as a Human Right

Francesco Francioni (ed.)

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 ... More

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.Less

Accessing Asylum in Europe: Extraterritorial Border Controls and Refugee Rights under EU Law

Violeta Moreno-Lax

This monograph examines the interface between extraterritorial border surveillance, migration management, and asylum seeking under EU law. The final goal is to determine the compatibility of ... More

This monograph examines the interface between extraterritorial border surveillance, migration management, and asylum seeking under EU law. The final goal is to determine the compatibility of pre-entry controls, carried out in the form of Schengen visas, carrier sanctions (with or without assistance from ILOs), and maritime interdiction, with the fundamental rights acquis of the EU, in particular the right to protection against refoulement, the right to asylum, and the rights to good administration and effective judicial protection enshrined in the Charter of Fundamental Rights. The conflictual assertion contained in Tampere and successor programmes that the Union shall remain ‘open’ to those seeking access to it in search of protection, but, at the same time, ‘counteract illegal immigration and cross-border crime’ provides the background to this research. The result has been an ambiguous regulation of access to EU territory for asylum purposes. Two sets of rules have developed simultaneously, which are difficult to reconcile: one set assimilates protection seekers to the generic category of ‘third-country nationals’ subject to Schengen admission criteria, with another set containing references to ‘special provisions’ applicable to exiles, leading to a situation where up to 90% of refugee arrivals occur through irregular (unsafe) channels, as smuggled or trafficked migrants. In these circumstances, elucidating the exact reach of EU international protection obligations and the articulation between EU border/pre-border norms and EU fundamental rights becomes essential. The monograph thus strives to determine the content of the specific responsibilities of the Member States in this context and establish their implications for the ‘integrated border management’ system the Union is committed to realise.Less

The Accountability of Armed Groups under Human Rights Law

Katharine Fortin

Although the practice of holding armed groups to account under human rights law remains controversial and under-theorized as a matter of law, statements from Commissions of Inquiry and United Nations ... More

Although the practice of holding armed groups to account under human rights law remains controversial and under-theorized as a matter of law, statements from Commissions of Inquiry and United Nations Special Rapporteurs holding armed groups to account under this body of law are relatively commonplace. Motivated by this contradiction, this study aims to clarify when and how armed groups are bound by human rights law. It brings several key issues of clarification to the legal framework. The first part of the book presents a new perspective on the role that human rights law plays in the legal framework that applies to non-international armed conflict. In particular, the study investigates the normative added value that human rights law can bring vis-à-vis international humanitarian law. The second part of the book sheds light on the circumstances in which armed groups acquire obligations under human rights law. Combining historical and comparative research with theoretical analysis on international legal personality, the research demonstrates what the legal frameworks of belligerency, insurgency, and international humanitarian law can tell us about when and how such groups may be bound by human rights law. The third part of the book tests and investigates the four most utilized theories of how armed groups are bound by human rights law, examining (i) treaty law, (ii) control of territory, (iii) international criminal law, and (iv) customary international law. The book’s conclusions are drawn together thematically and contain important practical recommendations for practitioners in this field.Less

Advocates of Humanity: Human Rights NGOs in International Criminal Justice

Kjersti Lohne

Advocates of Humanity offers an analysis of international criminal justice from the perspective of sociology of punishment by exploring the role of human rights organizations in their mobilization ... More

Advocates of Humanity offers an analysis of international criminal justice from the perspective of sociology of punishment by exploring the role of human rights organizations in their mobilization for global justice through the International Criminal Court. Based on multi-sited ethnography, primarily in The Hague and Uganda, the author approaches the transnational networks of NGOs advocating for the ICC as an ethnographic object. A central objective is to explore how connections are made, and how forces and imaginations of global criminal justice travel. By analysing how international criminal justice is arranged spatially, and as such expresses social, political, and cultural relations of power, Advocates of Humanity shows how international criminal justice is situated in particular spaces, networks, and actors, and how they structure the imaginations of justice circulating in the field. From a sociology of punishment perspective, it compares the ‘penal imaginations’ of domestic and international criminal justice, and considers the particularly central role of victims as a universalized symbol of humanity for the legitimacy of international criminal justice. With clear global asymmetries emerging from the work, Advocates of Humanity provides descriptive as well as explanatory understandings of criminal punishment ‘gone global’, analysing its social causation while examining its cultural meanings, particularly as regards its role as an expression of ‘the international’ will to punish. To whom is it meaningful, and why?Less

Aftermath: Deportation Law and the New American Diaspora

Daniel Kanstroom

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 ... More

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.Less

Anti-Discrimination Law and the European Union

Mark Bell

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 ... More

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.Less

Anti-Discrimination Law in Civil Law Jurisdictions

Barbara Havelková and Mathias Möschel (eds)

This edited volume explores the question of how anti-discrimination law fits into civil law jurisdictions of Europe. Anti-discrimination law, as well as much of academic literature on this topic, has ... More

This edited volume explores the question of how anti-discrimination law fits into civil law jurisdictions of Europe. Anti-discrimination law, as well as much of academic literature on this topic, has originated in common law countries. This book breaks new ground with offering, for the first time, a sustained, critical, legal, and socio-legal, comparative look at jurisdictions beyond the common law. It tests the thesis that anti-discrimination law has been perceived as an import for which continental European jurisdictions have found little use. Through a set of single chapters, each written by a continental civil law legal scholar, this book demonstrates that, while to some extent the claim that anti-discrimination constituted a legal irritant remains true, today nevertheless a much more nuanced picture emerges. The situation depends on the country and varies also by specific area of law, the actors involved, as well as the ground or concept of anti-discrimination law one focuses on.Less

Are Human Rights Western?: A Contribution to the Dialogue of Civilizations

Arvin Sharma

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 ... More

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.Less

Arguments about Abortion: Personhood, Morality, and Law

Kate Greasley

Does the morality of abortion depend on the moral status of the human fetus? Must the law of abortion give an answer to the question about exactly when personhood begins? Can a law which permits late ... More

Does the morality of abortion depend on the moral status of the human fetus? Must the law of abortion give an answer to the question about exactly when personhood begins? Can a law which permits late abortion but not infanticide be morally justified? These are just some of the questions this book sets out to address. An extended analysis of the moral and legal status of abortion, the book offers an account of abortion which keeps philosophical disagreement about ‘personhood’ at the centre of the debate. Structured in three parts the book considers the relevance of prenatal personhood for the moral and legal evaluation of abortion; traces the key features of the conventional debate about when personhood begins; and explores the most prominent current problems in abortion ethics literature, including the human equality problem and the difference between abortion and infanticide. It examines approaches abortion law and regulation as well as the differing attitudes to selective abortion on grounds of sex and fetal disability. The book concludes with a snapshot into the current controversy surrounding the scope of the right to conscientiously object to participation in abortion provision.Less

Arrest, Detention, and Criminal Justice System: A Study in the Context of the Constitution of India

Bellary Uma Devi

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 ... More

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.Less

At Home in Two Countries: The Past and Future of Dual Citizenship

Peter J. Spiro

Although commonplace today, dual citizenship was once considered an abnormality, or even an abomination. Yet by the last decades of the twentieth century, perhaps fueled by the civil rights movement ... More

Although commonplace today, dual citizenship was once considered an abnormality, or even an abomination. Yet by the last decades of the twentieth century, perhaps fueled by the civil rights movement in America as well as worldwide liberation movements, a global emphasis on human rights helped chip away the stigma traditionally attached to dual citizenship. At Home in Two Countries charts the history of dual citizenship in America from strong disfavor to general acceptance. The status has touched many; there are few Americans who do not have someone in their past or present who has held the status, if only unknowingly. The history reflects on the course of the state as an institution at the level of the individual. The state was once a jealous institution, justifiably demanding an exclusive relationship with its members. Today, the state lacks both the capacity and the incentive to suppress the status as citizenship becomes more like other forms of membership. Dual citizenship allows many to formalize sentimental attachments. For others, it’s a new way to game the international system. This book explains why dual citizenship was once so reviled, why it is a fact of life after globalization, and why it should be embraced today.Less

At Liberty to Die: The Battle for Death with Dignity in America

Howard Ball

Over the past hundred years, average life expectancy in America has nearly doubled. Yet while longevity is celebrated as an achievement in modern civilization, the longer people live, the more likely ... More

Over the past hundred years, average life expectancy in America has nearly doubled. Yet while longevity is celebrated as an achievement in modern civilization, the longer people live, the more likely they are to succumb to chronic, terminal illnesses. In 1900, the average life expectancy was forty-seven years, with a majority of American deaths attributed to influenza, tuberculosis, pneumonia, or other diseases. In 2000, the average life expectancy was nearly eighty years, and for too many people, these long lifespans included cancer, heart failure, Lou Gehrig's disease, AIDS, or other fatal illnesses, and with them, came debilitating pain and the loss of a once-full and often independent lifestyle. This book poses the pressing question: is it appropriate, legally and ethically, for a competent individual to have the liberty to decide how and when to die when faced with a terminal illness? The book charts how the right of a competent, terminally ill person to die on his or her own terms with the help of a doctor has come deeply embroiled in debates about the relationship between religion, civil liberties, politics, and law in American life. Exploring both the legal rulings and the media frenzies that accompanied the Terry Schiavo case and others like it, the book contends that despite raging battles in all the states where right to die legislation has been proposed, the opposition to the right to die is intractable in its stance.Less

Being and Owning: The Body, Bodily Material, and the Law

Jesse Wall

When part of a person’s body is separated from them, or when a person dies, it is unclear what legal status the item of bodily material ought to obtain. This book develops a way for the law to ... More

When part of a person’s body is separated from them, or when a person dies, it is unclear what legal status the item of bodily material ought to obtain. This book develops a way for the law to address disputes over the use and storage of bodily material that, contrary to the current trend, resists the application of property law. The solution lies in developing a tort that is structurally akin to the common law right to privacy that, alongside the recognition of property rights in some instances, is able to adequately protect interests that arise in bodily material. This recommendation is developed through two main inquiries. First, the book assesses when a person ought to be able to possess, control, use, or profit from bodily material. Emerging from this assessment are two sets of values that arise in bodily material. Bodily material may be valuable because it retains a functional unity with the body or remains as the medium of social experience, and bodily material may be valuable as a material resource that is in short supply. Second, the book assesses whether property law represents the most appropriate structure of rights and duties to protect the entitlements that a person may exercise in bodily material. This inquiry identifies the conceptual and structural features of property law and identifies the limits to its appropriate application. As part of this analysis, an alternative to property law is developed with reference to the right to bodily integrity and the right to privacy.Less

Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases

Shoba Wadhia

When Beatles star John Lennon faced deportation from the U.S. in the 1970s, his lawyer, Leon Wildes, made a groundbreaking argument. He argued that Lennon should be granted “nonpriority” status ... More

When Beatles star John Lennon faced deportation from the U.S. in the 1970s, his lawyer, Leon Wildes, made a groundbreaking argument. He argued that Lennon should be granted “nonpriority” status pursuant to the prosecutorial discretion policy of the Immigration and Naturalization Service (INS)—a policy maintained by the INS’s successor, the Department of Homeland Security (DHS). In U.S. immigration law, the relevant federal agency exercises prosecutorial discretion favorably when it refrains from enforcing the full scope of the law against one or more persons. A prosecutorial discretion grant is important to an agency seeking to focus on the “truly dangerous,” conserve resources, and enforce immigration law with compassion. The Lennon case marked the first moment that the immigration agency’s prosecutorial discretion policy became public knowledge. Today, the concept of prosecutorial discretion is more widely known in light of the Obama administration’s Deferred Action for Childhood Arrivals (DACA) program, a record number of deportations, and the stalemate in Congress over immigration reform. This is the first book to comprehensively describe the history, theory, and application of prosecutorial discretion in immigration law, unveiling the powerful role it plays in protecting individuals from deportation and conserving government resources. Shoba Sivaprasad Wadhia draws on her experience as an immigration attorney, policy leader, and law professor to advocate for bolder standards of prosecutorial discretion, greater mechanisms for accountability when such standards are ignored, improved transparency about the cases involving prosecutorial discretion, and recognition of “deferred action” in the law as a formal benefit.Less

Beyond Disagreement: Open Remedies in Human Rights Adjudication

Aruna Sathanapally

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 ... More

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.Less

The Borders of Punishment: Migration, Citizenship, and Social Exclusion

Katja Franko Aas and Mary Bosworth (eds)

This book critically assesses the relationship between immigration control, citizenship, and criminal justice. It reflects on the theoretical and methodological challenges posed by mass mobility and ... More

This book critically assesses the relationship between immigration control, citizenship, and criminal justice. It reflects on the theoretical and methodological challenges posed by mass mobility and its control and sets out a particular sub-field within criminology — the criminology of mobility. Drawing together leading international scholars with newer researchers, the book systematically outlines why criminology and criminal justice should pay more attention to issues of immigration and border control. The chapters consider how ‘traditional’ criminal justice institutions such as the criminal law, police, and prisons are being shaped and altered by immigration, as well as examining novel forms of penalty (such as deportation and detention facilities), which have until now seldom featured in criminological studies and textbooks. In so doing, the book demonstrates that mobility and its control are matters that ought to be central to any understanding of the criminal justice system. Phenomena such as the controversial use of immigration law for the purposes of the war on terror, closed detention centres, deportation, and border policing, raise in new ways some of the fundamental and enduring questions of criminal justice and criminology: What is punishment? What is crime? What should be the normative and legal foundation for criminalization, for police suspicion, for the exclusion from the community, and for the deprivation of freedom? And who is the subject of rights within a society and what is the relevance of citizenship to criminal justice?Less

Challenges to Civil Rights Guarantees in India

SAHRDC

A.G Noorani (ed.)

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 ... More

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.Less

Changing Nature of Religious Rights under International Law

Malcolm Evans, Peter Petkoff, and Julian Rivers (eds)

This book explores new and emerging perspectives in the field of protection of religious rights under international law at an institutional level three decades after the 1981 Declaration. It captures ... More

This book explores new and emerging perspectives in the field of protection of religious rights under international law at an institutional level three decades after the 1981 Declaration. It captures in a systematic fashion the different approaches to religious rights existing in public international law and explores how particular institutional perspectives emerge in the context of these approaches. The book examines, and often challenges, these institutional perspectives and identifies new directions for approaching religious rights through international law by examining existing legal tools, their achievements, and their shortcomings, and proposes new legal approaches. A complex conversation about the nature of freedom of religion or belief under international law is taking place and how religious rights are perceived is changing on an institutional level. Some of the changes are shaped by external factors, such as the new prominence of religion in public life and the emergence of diverse and complex jurisprudence at the level of regional protection of human rights (ECHR in particular). Others have developed from internal institutional discourses, often shaped by the reports of the UN Special Rapporteurs, UN institutional debates, and new UN resolutions. The intersection of these internal and external discourses is gradually developing dynamic and diverse perspectives on religious rights under international law which are not always easy to reconcile. These new developments have been evolving rapidly over the past seven years but the international law literature, which focuses primarily on ECHR and domestic human rights jurisprudence, has not caught up with them.Less