Emilie M. Hafner-Burton
- Published in print:
- 2013
- Published Online:
- October 2017
- ISBN:
- 9780691155357
- eISBN:
- 9781400846283
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691155357.003.0006
- Subject:
- Law, EU Law
This chapter considers the experiences of practitioners who work inside and around the international human rights legal system. Those insider views—many of them from lawyers who have one foot in ...
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This chapter considers the experiences of practitioners who work inside and around the international human rights legal system. Those insider views—many of them from lawyers who have one foot in academia and another in the practical efforts of nongovernmental organizations and international legal bodies—point to many similar findings. They see a system in which legal obligations and membership have expanded much faster than the capacity to yield practical improvements in human rights. According to many of these practitioners, the legal system has been extremely successful at declaring universal values, yet has fallen quite short in practical implementation. The chapter discusses some good news regarding the impact of international treaties and legal customs on constitutions, national law, and domestic politics, as well as some barriers to a more effective human rights legal system; for example, insider politics and underused or ineffective complaints mechanisms.Less
This chapter considers the experiences of practitioners who work inside and around the international human rights legal system. Those insider views—many of them from lawyers who have one foot in academia and another in the practical efforts of nongovernmental organizations and international legal bodies—point to many similar findings. They see a system in which legal obligations and membership have expanded much faster than the capacity to yield practical improvements in human rights. According to many of these practitioners, the legal system has been extremely successful at declaring universal values, yet has fallen quite short in practical implementation. The chapter discusses some good news regarding the impact of international treaties and legal customs on constitutions, national law, and domestic politics, as well as some barriers to a more effective human rights legal system; for example, insider politics and underused or ineffective complaints mechanisms.
Emilie M. Hafner-Burton
- Published in print:
- 2013
- Published Online:
- October 2017
- ISBN:
- 9780691155357
- eISBN:
- 9781400846283
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691155357.003.0004
- Subject:
- Law, EU Law
This chapter provides an overview of the most important nuts and bolts of the international human rights legal system, which generally resides within the structures of the United Nations. It first ...
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This chapter provides an overview of the most important nuts and bolts of the international human rights legal system, which generally resides within the structures of the United Nations. It first considers the most prominent international agreements that comprise the International Bill of Human Rights and their two treaty oversight bodies, the Human Rights Committee and the Committee on Economic, Social, and Cultural Rights. It then examines other human rights laws and treaties, along with the functions of the UN Office of the High Commissioner for Human Rights and the Human Rights Council. It also looks at universal criminal law and tribunals, regional human rights laws and institutions, and the human rights legal systems in Europe, the Americas, Africa, the Islamic world and Asia. The chapter concludes by explaining why the international law on human rights has been so popular and how the international human rights legal system works.Less
This chapter provides an overview of the most important nuts and bolts of the international human rights legal system, which generally resides within the structures of the United Nations. It first considers the most prominent international agreements that comprise the International Bill of Human Rights and their two treaty oversight bodies, the Human Rights Committee and the Committee on Economic, Social, and Cultural Rights. It then examines other human rights laws and treaties, along with the functions of the UN Office of the High Commissioner for Human Rights and the Human Rights Council. It also looks at universal criminal law and tribunals, regional human rights laws and institutions, and the human rights legal systems in Europe, the Americas, Africa, the Islamic world and Asia. The chapter concludes by explaining why the international law on human rights has been so popular and how the international human rights legal system works.
Emilie M. Hafner-Burton
- Published in print:
- 2013
- Published Online:
- October 2017
- ISBN:
- 9780691155357
- eISBN:
- 9781400846283
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691155357.003.0001
- Subject:
- Law, EU Law
This book examines whether more international legal instruments and procedures would be helpful while probing the actions that states can take in tandem to the large and increasingly elaborate ...
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This book examines whether more international legal instruments and procedures would be helpful while probing the actions that states can take in tandem to the large and increasingly elaborate international human rights legal system. It combines research in anthropology, criminology, economics, history, law, political science, psychology, and sociology with practical insight from the people in the field who are engaged in human rights promotion. Its goal is to develop a strategy for stewardship that could help make human rights more of a reality. Part I of the book considers what is known about why people (notably leaders of governments and their envoys) commit human rights abuses. Part II deals with the international human rights legal system that has emerged over the last six decades. Part III explores what governments themselves are doing to advance human rights abroad.Less
This book examines whether more international legal instruments and procedures would be helpful while probing the actions that states can take in tandem to the large and increasingly elaborate international human rights legal system. It combines research in anthropology, criminology, economics, history, law, political science, psychology, and sociology with practical insight from the people in the field who are engaged in human rights promotion. Its goal is to develop a strategy for stewardship that could help make human rights more of a reality. Part I of the book considers what is known about why people (notably leaders of governments and their envoys) commit human rights abuses. Part II deals with the international human rights legal system that has emerged over the last six decades. Part III explores what governments themselves are doing to advance human rights abroad.
Kristine Kalanges
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199859467
- eISBN:
- 9780199933518
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199859467.003.0003
- Subject:
- Law, Public International Law, Comparative Law
Freedom of religion did not become a legal reality until the modern era (e.g., through the First Amendment), and even as late as the Second World War, one global study declared a total absence of “a ...
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Freedom of religion did not become a legal reality until the modern era (e.g., through the First Amendment), and even as late as the Second World War, one global study declared a total absence of “a generally accepted postulate of international law that every State is under legal obligation to accord religious liberty within its jurisdiction.” However, in the relatively brief historical period since, freedom of religion or belief has become just such an accepted postulate of international law. This chapter explores key elements of that development, beginning with an examination of religious liberty provisions in international human rights law—the major documents and treaties, as well as issues of special concern. Next, it briefly considers two additional sources of international rights monitoring and enforcement: the U.S. Commission on International Religious Freedom and the European Court of Human Rights. Finally, it discusses the twentieth-century contributions of religious institutions to religious liberty, focusing on the role of the Catholic Church in elaborating a moral foundation for religious freedom and championing it as a pathway to peace.Less
Freedom of religion did not become a legal reality until the modern era (e.g., through the First Amendment), and even as late as the Second World War, one global study declared a total absence of “a generally accepted postulate of international law that every State is under legal obligation to accord religious liberty within its jurisdiction.” However, in the relatively brief historical period since, freedom of religion or belief has become just such an accepted postulate of international law. This chapter explores key elements of that development, beginning with an examination of religious liberty provisions in international human rights law—the major documents and treaties, as well as issues of special concern. Next, it briefly considers two additional sources of international rights monitoring and enforcement: the U.S. Commission on International Religious Freedom and the European Court of Human Rights. Finally, it discusses the twentieth-century contributions of religious institutions to religious liberty, focusing on the role of the Catholic Church in elaborating a moral foundation for religious freedom and championing it as a pathway to peace.
Emilie M. Hafner-Burton
- Published in print:
- 2013
- Published Online:
- October 2017
- ISBN:
- 9780691155357
- eISBN:
- 9781400846283
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691155357.003.0005
- Subject:
- Law, EU Law
This chapter reviews scholarly research on international human rights law, focusing on systematic studies that are based on historical statistics and carried out by social scientists. The systematic, ...
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This chapter reviews scholarly research on international human rights law, focusing on systematic studies that are based on historical statistics and carried out by social scientists. The systematic, scholarly study of international human rights law can be grouped into two main categories. First are studies on the process of international law, such as on how judges in human rights tribunals make decisions. Second are studies that look for relationships between the presence of law (and laws of different types) and actual changes in human behavior. The chapter concentrates on the second category of research and highlights its main weaknesses. It also discusses some of the findings of statistical research regarding civil and political rights as well as economic, social, and cultural rights. Finally, it examines the mechanisms of influence of the international human rights legal system.Less
This chapter reviews scholarly research on international human rights law, focusing on systematic studies that are based on historical statistics and carried out by social scientists. The systematic, scholarly study of international human rights law can be grouped into two main categories. First are studies on the process of international law, such as on how judges in human rights tribunals make decisions. Second are studies that look for relationships between the presence of law (and laws of different types) and actual changes in human behavior. The chapter concentrates on the second category of research and highlights its main weaknesses. It also discusses some of the findings of statistical research regarding civil and political rights as well as economic, social, and cultural rights. Finally, it examines the mechanisms of influence of the international human rights legal system.
Emily Crawford
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199578962
- eISBN:
- 9780191722608
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199578962.003.0004
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter looks to the law of international human rights, which provides further rules regarding the treatment of persons deprived of their liberty in relation to a non-international armed ...
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This chapter looks to the law of international human rights, which provides further rules regarding the treatment of persons deprived of their liberty in relation to a non-international armed conflict. The protections of international human rights law act to supplement the IHL rules, so that it is possible to speak of a substantial body of rules applicable in non-international armed conflict that effectively duplicate nearly all the protections afforded to combatants and POWs.Less
This chapter looks to the law of international human rights, which provides further rules regarding the treatment of persons deprived of their liberty in relation to a non-international armed conflict. The protections of international human rights law act to supplement the IHL rules, so that it is possible to speak of a substantial body of rules applicable in non-international armed conflict that effectively duplicate nearly all the protections afforded to combatants and POWs.
Emilie M. Hafner-Burton
- Published in print:
- 2013
- Published Online:
- October 2017
- ISBN:
- 9780691155357
- eISBN:
- 9781400846283
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691155357.003.0007
- Subject:
- Law, EU Law
This chapter considers areas where reforms could make the international human rights legal system more effective and influential. In particular, it examines just what kinds of reforms are achievable ...
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This chapter considers areas where reforms could make the international human rights legal system more effective and influential. In particular, it examines just what kinds of reforms are achievable in the real world along with their likely impact. Four types of reform are discussed. First are notions about how the broader public might become more aware that the system exists, and also more fully engaged with human rights legal procedures at home and internationally. Second are reforms aimed at streamlining the human rights legal system. Third is the professionalization of the system, especially the United Nations treaty bodies and Secretariat. Fourth is investing in credibility and legitimacy. The chapter concludes by outlining strategies that could increase the success of reform efforts and highlighting the limits of reform.Less
This chapter considers areas where reforms could make the international human rights legal system more effective and influential. In particular, it examines just what kinds of reforms are achievable in the real world along with their likely impact. Four types of reform are discussed. First are notions about how the broader public might become more aware that the system exists, and also more fully engaged with human rights legal procedures at home and internationally. Second are reforms aimed at streamlining the human rights legal system. Third is the professionalization of the system, especially the United Nations treaty bodies and Secretariat. Fourth is investing in credibility and legitimacy. The chapter concludes by outlining strategies that could increase the success of reform efforts and highlighting the limits of reform.
Emilie M. Hafner-Burton
- Published in print:
- 2013
- Published Online:
- October 2017
- ISBN:
- 9780691155357
- eISBN:
- 9781400846283
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691155357.003.0011
- Subject:
- Law, EU Law
This chapter advocates a process called “triage” for resource allocation that requires investing more heavily in areas where the evidence indicates that human rights promotion is most likely to work. ...
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This chapter advocates a process called “triage” for resource allocation that requires investing more heavily in areas where the evidence indicates that human rights promotion is most likely to work. It argues that the universality of human rights norms, which are the bedrock of the international human rights legal system and the core idea of the Universal Declaration of Human Rights, is not a tenable guide for the most effective implementation of human rights norms. It explains why human rights is a matter of national interest and how assessments of leverage impact human rights. It shows how triage can help stewards in the area of international legal reform and concludes by outlining steps that could transform the process through which government stewards work to protect human rights and increase the returns on international promotion efforts for human rights protection.Less
This chapter advocates a process called “triage” for resource allocation that requires investing more heavily in areas where the evidence indicates that human rights promotion is most likely to work. It argues that the universality of human rights norms, which are the bedrock of the international human rights legal system and the core idea of the Universal Declaration of Human Rights, is not a tenable guide for the most effective implementation of human rights norms. It explains why human rights is a matter of national interest and how assessments of leverage impact human rights. It shows how triage can help stewards in the area of international legal reform and concludes by outlining steps that could transform the process through which government stewards work to protect human rights and increase the returns on international promotion efforts for human rights protection.
Sir Adam Roberts
- Published in print:
- 2003
- Published Online:
- April 2004
- ISBN:
- 9780199267217
- eISBN:
- 9780191601118
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199267219.003.0005
- Subject:
- Political Science, International Relations and Politics
Demonstrates that the United Nations has been at the centre of key field operations and policy debates relating to humanitarian intervention since the end of the Cold War. However, the issue of ...
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Demonstrates that the United Nations has been at the centre of key field operations and policy debates relating to humanitarian intervention since the end of the Cold War. However, the issue of humanitarian intervention also poses a challenge to the UN and its member states, and could even undermine the organization. At the heart of the UN’s difficulty is a delicate balance between the rights of individuals and the rights of states. For its first 45 years, the body was associated with the principle of non-intervention and the non-use of force, yet, since 1990, it has endorsed a series of interventions for humanitarian purposes. After considering the history and causes of this shift, the author discusses nine cases of intervention between 1990 and 2001. These cases reveal a number of issues and controversies, including reliance on the UN Security Council for authorization, the stance of the UN Secretary General, and the impact of the 2002 National Security Strategy of the United States.Less
Demonstrates that the United Nations has been at the centre of key field operations and policy debates relating to humanitarian intervention since the end of the Cold War. However, the issue of humanitarian intervention also poses a challenge to the UN and its member states, and could even undermine the organization. At the heart of the UN’s difficulty is a delicate balance between the rights of individuals and the rights of states. For its first 45 years, the body was associated with the principle of non-intervention and the non-use of force, yet, since 1990, it has endorsed a series of interventions for humanitarian purposes. After considering the history and causes of this shift, the author discusses nine cases of intervention between 1990 and 2001. These cases reveal a number of issues and controversies, including reliance on the UN Security Council for authorization, the stance of the UN Secretary General, and the impact of the 2002 National Security Strategy of the United States.
Carl Wellman
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199744787
- eISBN:
- 9780199827138
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199744787.003.0006
- Subject:
- Philosophy, General
This chapter explains the grounds of international human rights. Their material grounds are primarily texts such as human rights conventions, General Assembly resolutions, committee reports, or ...
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This chapter explains the grounds of international human rights. Their material grounds are primarily texts such as human rights conventions, General Assembly resolutions, committee reports, or judicial decisions. The legal relevance of these texts depends on the formal grounds of international law, especially treaties ratified by nation-states or customary state action accepted as law. Thus, the grounds of international human rights are institutional, unlike the moral reasons that ground moral human rights. However, because many of these texts presuppose moral human rights, moral human rights are relevant to the justification and interpretation of international human rights.Less
This chapter explains the grounds of international human rights. Their material grounds are primarily texts such as human rights conventions, General Assembly resolutions, committee reports, or judicial decisions. The legal relevance of these texts depends on the formal grounds of international law, especially treaties ratified by nation-states or customary state action accepted as law. Thus, the grounds of international human rights are institutional, unlike the moral reasons that ground moral human rights. However, because many of these texts presuppose moral human rights, moral human rights are relevant to the justification and interpretation of international human rights.
Carl Wellman
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199744787
- eISBN:
- 9780199827138
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199744787.003.0004
- Subject:
- Philosophy, General
This chapter explains how the most important global human rights documents presuppose the existence of moral human rights. This is especially true of the Universal Declaration of Human Rights and the ...
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This chapter explains how the most important global human rights documents presuppose the existence of moral human rights. This is especially true of the Universal Declaration of Human Rights and the two covenants of 1966. It argues that many international human rights can be justified as protections of analogous prior moral human rights and that these moral rights are relevant to their interpretation in international law. However, other justifications for recognizing and implementing international human rights are their contributions to world peace, social justice, or friendly relations among nation-states.Less
This chapter explains how the most important global human rights documents presuppose the existence of moral human rights. This is especially true of the Universal Declaration of Human Rights and the two covenants of 1966. It argues that many international human rights can be justified as protections of analogous prior moral human rights and that these moral rights are relevant to their interpretation in international law. However, other justifications for recognizing and implementing international human rights are their contributions to world peace, social justice, or friendly relations among nation-states.
Emilie M. Hafner-Burton
- Published in print:
- 2013
- Published Online:
- October 2017
- ISBN:
- 9780691155357
- eISBN:
- 9781400846283
- Item type:
- book
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691155357.001.0001
- Subject:
- Law, EU Law
In the last six decades, one of the most striking developments in international law is the emergence of a massive body of legal norms and procedures aimed at protecting human rights. In many ...
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In the last six decades, one of the most striking developments in international law is the emergence of a massive body of legal norms and procedures aimed at protecting human rights. In many countries, though, there is little relationship between international law and the actual protection of human rights on the ground. This book takes a fresh look at why it's been so hard for international law to have much impact in parts of the world where human rights are most at risk. The book argues that more progress is possible if human rights promoters work strategically with the group of states that have dedicated resources to human rights protection. These human rights “stewards” can focus their resources on places where the tangible benefits to human rights are greatest. Success will require setting priorities as well as engaging local stakeholders such as nongovernmental organizations and national human rights institutions. To date, promoters of international human rights law have relied too heavily on setting universal goals and procedures and not enough on assessing what actually works and setting priorities. This book illustrates how, with a different strategy, human rights stewards can make international law more effective and also safeguard human rights for more of the world population.Less
In the last six decades, one of the most striking developments in international law is the emergence of a massive body of legal norms and procedures aimed at protecting human rights. In many countries, though, there is little relationship between international law and the actual protection of human rights on the ground. This book takes a fresh look at why it's been so hard for international law to have much impact in parts of the world where human rights are most at risk. The book argues that more progress is possible if human rights promoters work strategically with the group of states that have dedicated resources to human rights protection. These human rights “stewards” can focus their resources on places where the tangible benefits to human rights are greatest. Success will require setting priorities as well as engaging local stakeholders such as nongovernmental organizations and national human rights institutions. To date, promoters of international human rights law have relied too heavily on setting universal goals and procedures and not enough on assessing what actually works and setting priorities. This book illustrates how, with a different strategy, human rights stewards can make international law more effective and also safeguard human rights for more of the world population.
Agnès Hurwitz
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199278381
- eISBN:
- 9780191706998
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199278381.003.0006
- Subject:
- Law, Criminal Law and Criminology, Public International Law
This chapter argues that safe third country mechanisms are not satisfactory from the perspective of refugee protection. The analysis of the non-refoulement principle under international refugee and ...
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This chapter argues that safe third country mechanisms are not satisfactory from the perspective of refugee protection. The analysis of the non-refoulement principle under international refugee and human rights law and of other human rights obligations suggests that the current implementation of these arrangements entails serious risks for refugees' rights. Given that protection standards differ so much between States, adequate implementation in compliance with international law requires that national authorities determine on an individual basis whether a third country would provide effective protection to the refugee and that removal to such a country be based on an explicit agreement, so as to guarantee that the asylum claim will be examined on its merits and in accordance with basic procedural safeguards and international law.Less
This chapter argues that safe third country mechanisms are not satisfactory from the perspective of refugee protection. The analysis of the non-refoulement principle under international refugee and human rights law and of other human rights obligations suggests that the current implementation of these arrangements entails serious risks for refugees' rights. Given that protection standards differ so much between States, adequate implementation in compliance with international law requires that national authorities determine on an individual basis whether a third country would provide effective protection to the refugee and that removal to such a country be based on an explicit agreement, so as to guarantee that the asylum claim will be examined on its merits and in accordance with basic procedural safeguards and international law.
Carl Wellman
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199744787
- eISBN:
- 9780199827138
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199744787.003.0005
- Subject:
- Philosophy, General
This chapter explains the nature of international human rights, human rights recognized in international law. Although most of them are claim-rights, some are liberty-rights, power-rights, or ...
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This chapter explains the nature of international human rights, human rights recognized in international law. Although most of them are claim-rights, some are liberty-rights, power-rights, or immunity-rights, They are adversarial, possessed by individual human beings and holding against nation-states. They have an important, but more limited, universality than moral human rights. Although they are unlike moral human rights in being institutional rather than natural, they are similar enough to make moral human rights relevant to their justification and interpretation.Less
This chapter explains the nature of international human rights, human rights recognized in international law. Although most of them are claim-rights, some are liberty-rights, power-rights, or immunity-rights, They are adversarial, possessed by individual human beings and holding against nation-states. They have an important, but more limited, universality than moral human rights. Although they are unlike moral human rights in being institutional rather than natural, they are similar enough to make moral human rights relevant to their justification and interpretation.
Alison Kesby
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199600823
- eISBN:
- 9780191738272
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199600823.001.0001
- Subject:
- Law, Public International Law
Writing in the immediate aftermath of the Second World War, the political theorist Hannah Arendt argued that the plight of stateless people in the inter-war period pointed to the existence of a ...
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Writing in the immediate aftermath of the Second World War, the political theorist Hannah Arendt argued that the plight of stateless people in the inter-war period pointed to the existence of a ‘right to have rights’. This right to have rights was the right to citizenship—to membership of a political community. Since then, and especially in recent years, theorists have continued to grapple with the meaning of the right to have rights. In the context of enduring statelessness, mass migration, people flows, and the contested nature of democratic politics, the question of the right to have rights remains of pressing concern for writers and advocates across the disciplines. This book provides the first in-depth examination of the right to have rights in the context of the international protection of human rights. It explores two overarching questions. First, how do different and competing conceptions of the right to have rights shed light on right-bearing in the contemporary context, and in particular on concepts and relationships central to the protection of human rights in public international law? Secondly, given these competing conceptions, how is the right to have rights to be understood in the context of public international law? In the course of the analysis, the author examines the significance and limits of citizenship, nationality, humanity, and politics for right-bearing, and argues that their complex interrelation points to how the right to have rights might be rearticulated for the purposes of international legal thought and practice.Less
Writing in the immediate aftermath of the Second World War, the political theorist Hannah Arendt argued that the plight of stateless people in the inter-war period pointed to the existence of a ‘right to have rights’. This right to have rights was the right to citizenship—to membership of a political community. Since then, and especially in recent years, theorists have continued to grapple with the meaning of the right to have rights. In the context of enduring statelessness, mass migration, people flows, and the contested nature of democratic politics, the question of the right to have rights remains of pressing concern for writers and advocates across the disciplines. This book provides the first in-depth examination of the right to have rights in the context of the international protection of human rights. It explores two overarching questions. First, how do different and competing conceptions of the right to have rights shed light on right-bearing in the contemporary context, and in particular on concepts and relationships central to the protection of human rights in public international law? Secondly, given these competing conceptions, how is the right to have rights to be understood in the context of public international law? In the course of the analysis, the author examines the significance and limits of citizenship, nationality, humanity, and politics for right-bearing, and argues that their complex interrelation points to how the right to have rights might be rearticulated for the purposes of international legal thought and practice.
Menno T. Kamminga
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199565221
- eISBN:
- 9780191705281
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199565221.003.0001
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter begins with a brief explanation of the approach used by the Committee on International Human Rights Law and Practice in preparing their report on the relationship between general ...
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This chapter begins with a brief explanation of the approach used by the Committee on International Human Rights Law and Practice in preparing their report on the relationship between general international law and international human rights law. It then discusses the structure of international obligations, the formation of customary international law, treaty law, international law and domestic law, immunity, diplomatic protection, the right to consular notification, and state responsibility.Less
This chapter begins with a brief explanation of the approach used by the Committee on International Human Rights Law and Practice in preparing their report on the relationship between general international law and international human rights law. It then discusses the structure of international obligations, the formation of customary international law, treaty law, international law and domestic law, immunity, diplomatic protection, the right to consular notification, and state responsibility.
Alexandra Barahona de Brito
- Published in print:
- 2001
- Published Online:
- November 2003
- ISBN:
- 9780199240906
- eISBN:
- 9780191598869
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199240906.003.0005
- Subject:
- Political Science, Democratization
This chapter examines how Argentina, Brazil, Uruguay and Chile fared with truth and justice policies after the transition from authoritarian rule, looking at the issue from an institutional and ...
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This chapter examines how Argentina, Brazil, Uruguay and Chile fared with truth and justice policies after the transition from authoritarian rule, looking at the issue from an institutional and political angle, and at the social politics of memory. Efforts to deal with the past and their significance in the overall politics of transition to democracy are shaped by country-specific historical conditions and developments: the nature and legacies of repression and authoritarian rule; and the nature of the transition process and the various political, institutional and legal factors conditioning the post-transitional period, among which are the nature of repression, the presence and strength of a human rights movement, inherited legal or constitutional limitations, relations between political parties and Human Rights Organizations (HROs), the degree of executive or party commitment to policies of truth and justice, the unity of democratic parties, the ability of the military to mobilise against any policies of accountability as well as their relations with the democratic executive, the attitude of the judiciary to past violations, the presence of a strong legislative right, and the degree to which repression penetrated the social fabric. The way in which the first democratically elected authorities deal with the past, together with the relative strength of the human rights movement in the post-transitional period, sets the agenda for the subsequent evolution of the issue; more specifically, the past remains a source of open conflict if there are loopholes in official policies that preclude full closure or amnesty, and if transnational groups or regional and international human rights bodies challenge national policies favouring impunity. The past also remains a source of conflict if there are strong HROs that continue to contest official decisions on how to deal with the past, and have allies in the formal political arena or the courts. Official policies to deal with the past are not of themselves directly relevant to the process of democratisation, and what is more, during the first transitional period, truth and justice policies are unrelated to (or may even place obstacles in the way of) wider institutional reform; the reverse is also true, but whatever the case, the past becomes part of the dynamic of democratic politics. Indeed, although the continued pursuit of truth and justice and its links to wider reforms may be difficult to establish across the board, the politics of memory more widely conceived are important for a process of democratization in all four countries examined here, as it is about how a society interprets and appropriates its past, in an attempt to mould its future, and as such it is an integral part of any political process, including progress towards deeper democracy.Less
This chapter examines how Argentina, Brazil, Uruguay and Chile fared with truth and justice policies after the transition from authoritarian rule, looking at the issue from an institutional and political angle, and at the social politics of memory. Efforts to deal with the past and their significance in the overall politics of transition to democracy are shaped by country-specific historical conditions and developments: the nature and legacies of repression and authoritarian rule; and the nature of the transition process and the various political, institutional and legal factors conditioning the post-transitional period, among which are the nature of repression, the presence and strength of a human rights movement, inherited legal or constitutional limitations, relations between political parties and Human Rights Organizations (HROs), the degree of executive or party commitment to policies of truth and justice, the unity of democratic parties, the ability of the military to mobilise against any policies of accountability as well as their relations with the democratic executive, the attitude of the judiciary to past violations, the presence of a strong legislative right, and the degree to which repression penetrated the social fabric. The way in which the first democratically elected authorities deal with the past, together with the relative strength of the human rights movement in the post-transitional period, sets the agenda for the subsequent evolution of the issue; more specifically, the past remains a source of open conflict if there are loopholes in official policies that preclude full closure or amnesty, and if transnational groups or regional and international human rights bodies challenge national policies favouring impunity. The past also remains a source of conflict if there are strong HROs that continue to contest official decisions on how to deal with the past, and have allies in the formal political arena or the courts. Official policies to deal with the past are not of themselves directly relevant to the process of democratisation, and what is more, during the first transitional period, truth and justice policies are unrelated to (or may even place obstacles in the way of) wider institutional reform; the reverse is also true, but whatever the case, the past becomes part of the dynamic of democratic politics. Indeed, although the continued pursuit of truth and justice and its links to wider reforms may be difficult to establish across the board, the politics of memory more widely conceived are important for a process of democratization in all four countries examined here, as it is about how a society interprets and appropriates its past, in an attempt to mould its future, and as such it is an integral part of any political process, including progress towards deeper democracy.
MASHOOD A. BADERIN
- Published in print:
- 2005
- Published Online:
- January 2010
- ISBN:
- 9780199285402
- eISBN:
- 9780191709173
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199285402.003.0002
- Subject:
- Law, Human Rights and Immigration
This chapter begins by discussing the different traditional barriers which must be destroyed in order to facilitate the dialogical approach adopted to confront the discourse of human rights from an ...
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This chapter begins by discussing the different traditional barriers which must be destroyed in order to facilitate the dialogical approach adopted to confront the discourse of human rights from an Islamic legal perspective. It then talks about the Islamic responses in international human rights discourse as well as the definition of human rights and Islamic law. It explains the emergence of international human rights, its categorisations, universalism, cultural relativism, and the relevance of Islamic law to universalism in international human rights law. It also examines the nature of Islamic law, its sources, methods, spiritual and temporal aspects, scope and purpose, as well as its application of the Maslahah. It highlights that morality and substantive justice are not displaced as very important factors of human rights philosophy.Less
This chapter begins by discussing the different traditional barriers which must be destroyed in order to facilitate the dialogical approach adopted to confront the discourse of human rights from an Islamic legal perspective. It then talks about the Islamic responses in international human rights discourse as well as the definition of human rights and Islamic law. It explains the emergence of international human rights, its categorisations, universalism, cultural relativism, and the relevance of Islamic law to universalism in international human rights law. It also examines the nature of Islamic law, its sources, methods, spiritual and temporal aspects, scope and purpose, as well as its application of the Maslahah. It highlights that morality and substantive justice are not displaced as very important factors of human rights philosophy.
MASHOOD A. BADERIN
- Published in print:
- 2005
- Published Online:
- January 2010
- ISBN:
- 9780199285402
- eISBN:
- 9780191709173
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199285402.003.0003
- Subject:
- Law, Human Rights and Immigration
This chapter examines the provisions of the ICCPR in the light of Islamic law to determine their scope of compatibility. It investigates each right under the ICCPR, followed by an Islamic law ...
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This chapter examines the provisions of the ICCPR in the light of Islamic law to determine their scope of compatibility. It investigates each right under the ICCPR, followed by an Islamic law perspective of each right. It clarifies the international human rights law interpretations of the ICCPR by referring to the jurisprudence of the Human Rights Committee (HRC) and other scholarly expositions too. It cites practices of relevant Muslim States and mentions the OIC Cairo Declaration on Human Rights in Islam as current codified Islamic human rights standards recognized by Muslim States. It discusses the necessary articles of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) in the analysis of the rights of women under the Covenant, due to its topicality in the international human rights-cum-Islamic law debate.Less
This chapter examines the provisions of the ICCPR in the light of Islamic law to determine their scope of compatibility. It investigates each right under the ICCPR, followed by an Islamic law perspective of each right. It clarifies the international human rights law interpretations of the ICCPR by referring to the jurisprudence of the Human Rights Committee (HRC) and other scholarly expositions too. It cites practices of relevant Muslim States and mentions the OIC Cairo Declaration on Human Rights in Islam as current codified Islamic human rights standards recognized by Muslim States. It discusses the necessary articles of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) in the analysis of the rights of women under the Covenant, due to its topicality in the international human rights-cum-Islamic law debate.
Carl Wellman
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199744787
- eISBN:
- 9780199827138
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199744787.003.0008
- Subject:
- Philosophy, General
This chapter argues that in most national legal systems, human rights ought to be recognized as constitutional rights to give them maximum protection. Moreover, they ought to be entrenched in a ...
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This chapter argues that in most national legal systems, human rights ought to be recognized as constitutional rights to give them maximum protection. Moreover, they ought to be entrenched in a written constitution, but in a way that only moderately restricts change by democratic procedures. However, they ought not to be recognized as moral human rights, for this would introduce excessive legal uncertainty. In a nation without a robust tradition of respect for individual rights, they ought to be recognized as international human rights, but probably not in a nation where human rights are already strongly protected.Less
This chapter argues that in most national legal systems, human rights ought to be recognized as constitutional rights to give them maximum protection. Moreover, they ought to be entrenched in a written constitution, but in a way that only moderately restricts change by democratic procedures. However, they ought not to be recognized as moral human rights, for this would introduce excessive legal uncertainty. In a nation without a robust tradition of respect for individual rights, they ought to be recognized as international human rights, but probably not in a nation where human rights are already strongly protected.
