Journal articles on the topic 'Competing human rights'
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DeLaet, Debra L. "Genital Autonomy, Children’s Rights, and Competing Rights Claims in International Human Rights Law." International Journal of Children’s Rights 20, no. 4 (2012): 554–83. http://dx.doi.org/10.1163/15718182-55680007.
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Claims that genital autonomy should be considered a human right call into question medically unnecessary genital alterations, including genital cutting of both boy and girl children, the forced or coerced circumcision of adults, and surgical alterations performed on the genitals of intersex children prior to the age of consent. To date, global norms suggest only a narrow applicability of any right to genital autonomy. International organizations, states, and non-governmental organizations increasingly condemn genital cutting of girls and women but generally tolerate both the genital cutting of boys and men and the surgical alteration of the genitals of intersex children. In examining assertions that genital autonomy should be considered a human right, the article considers competing rights claims, including religious and cultural rights, parental rights, and contending perspectives on health rights. Ultimately, this article highlights the limitations of international human rights law as a tool for promoting a right to genital autonomy.
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Bedi, Heather Plumridge. "Right to food, right to mine? Competing human rights claims in Bangladesh." Geoforum 59 (February 2015): 248–57. http://dx.doi.org/10.1016/j.geoforum.2014.08.015.
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Baisley, Elizabeth. "Framing the Ghanaian LGBT rights debate: competing decolonisation and human rights frames." Canadian Journal of African Studies / Revue canadienne des études africaines 49, no. 2 (May 4, 2015): 383–402. http://dx.doi.org/10.1080/00083968.2015.1032989.
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Forsythe, David P. "Human Rights in Political and Economic Context: Competing Views." International Studies Review 14, no. 4 (December 2012): 608–14. http://dx.doi.org/10.1111/misr.12016.
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Gomez, James, and Robin Ramcharan. "Evaluating Competing “Democratic” Discourses: The Impact on Human Rights Protection in Southeast Asia." Journal of Current Southeast Asian Affairs 33, no. 3 (December 2014): 49–77. http://dx.doi.org/10.1177/186810341403300303.
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This paper evaluates the impact of competing “democratic” discourses on human rights protection in Southeast Asia. The authors identify three key discourses emanating from a set of national governmental policies, advocacy positions promoted by both global and local civil society and international standards and procedures adopted by members of inter-governmental organisations. These discourses, the authors argue, are collectively shaping the emerging ASEAN inter-governmental human rights regime. The political impact of these competing “democratic” discourses and their complex interactions bring a cultural dimension to regional human rights. The authors argue that observers seeking to understand the emergence of norms, the establishment of institutions and their capacity to collectively protect regional human rights, need to understand these competing discourses.
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Karle, Claire. "Human aspirations or human rights?" Journal of Financial Crime 25, no. 4 (October 1, 2018): 1094–104. http://dx.doi.org/10.1108/jfc-09-2017-0079.
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Purpose The purpose of this paper is to engender new thinking regarding the intersection between universal human rights and development, and associated programmes. This leads to three subsidiary objectives: demonstrating the mutually reinforcing relationship between human rights and development; considering the practical divide between having and exercising a right; understanding the impact of non-state actors; and emphasising the ways in which state capacity and social capabilities need to be enhanced to both transform the consideration of human rights into a meaningful development catalyst and treat development as a significant contributor to human rights endeavours. Design/methodology/approach The paper begins by exploring the historical and contemporary understanding of the relationship between development and human rights – arguing for the increasing recognition of their mutually reinforcing relationship. The second section analyses the controversy regarding the existence of genuine “universal” human rights; followed by considering whether human rights are mere aspirations or genuine rights – exposing the difficulty of monitoring, evaluating, and enforcing adherence to human rights mandates, particularly given the growth of non-state actors, such as multinational corporations (MNCs)/transnational corporations (TNCs). The paper closes with a call to strengthen social capabilities and state capacities to consolidate the union between development and human rights. Findings Credence is broadly given to the moral argument for including human rights within a development framework. However, the economic argument remains largely neglected and certainly under-emphasized. Human rights and development should not be viewed or pursued as separate ends in themselves – competing objectives for separate organisations or programmes – but as mutually reinforcing. Both drive the same goal: the inclusive, equitable and qualitative development of human well-being. Further, to transform human rights into meaningful development catalysts one needs to be able to “exercise” the given rights – which in turn calls for strengthening social capabilities and state capacities. Originality/value Unlike some previous works, this paper does not prescribe a particular remedy. Rather, accepting the intangibility of human rights and the associated large degree of subjectivity, it provokes the reader to move beyond the strictures of conventional theories and frameworks. For example, the difference between “having” and “exercising” a right – a stark feature of actual practice has frequently been omitted from theoretical discussion. Likewise, the role of non-state actors, such as MNCs and TNCs, and the way in which their power can impede or support development goals and human rights is a relatively new point of discussion demanding further exploration.
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Jolly, Margaret. "Women's Rights, Human Rights and Domestic Violence in Vanuatu." Feminist Review 52, no. 1 (March 1996): 169–90. http://dx.doi.org/10.1057/fr.1996.14.
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There has been much recent debate about women's rights and their relation to human rights. Debates about domestic violence in Vanuatu are situated in this global frame but also in a regional and historical context dominated by the relation between kastom (tradition) and Christianity. This article depicts the dynamics of a conference on Violence and the Family in Vanuatu held in Port Vila in 1994, in terms of the competing claims of universal human rights and cultural relativism. The allegedly western character of human rights which focus on the individual and civil and political rights is often contrasted with the non-western stress on collectivities and the rights to economic development and self-determination. These sorts of ideological oppositions in international politics reverberate in domestic politics as well, and especially in those which situate women and men as subjects in conflict, as they are in many domestic disputes.
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Holkeboer, Mieke R. "Religion and Human Rights: Competing Claims?. Carrie Gustafson , Peter Juviler." Journal of Religion 80, no. 4 (October 2000): 705–6. http://dx.doi.org/10.1086/490748.
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Samuels, Leslie. "Sexual Orientation Discrimination and the Church: Balancing Competing Human Rights." Ecclesiastical Law Journal 8, no. 36 (January 2005): 74–79. http://dx.doi.org/10.1017/s0956618x00006025.
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De Perini, Pietro. "The Inconsistent Human Rights Agenda of EU Mediterranean Policy." European Foreign Affairs Review 25, Issue 3 (September 1, 2020): 445–66. http://dx.doi.org/10.54648/eerr2020032.
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Vagueness and inconsistency in policy formulation represent an underlying factor for the longstanding weakness and ineffectiveness of EU human rights action towards the Mediterranean neighbourhood. This article aims to shed light on the causes of such flaws in policy-making and grasp their consequences on EU approaches on the matter, focusing on the competing preferences vis-a-vis the role and scope of human rights held by the key actors who have affected the direction of EU Mediterranean policy over time. The article argues that the roots of human rights inconsistency therein lie in the EU’s protracted incapability to coherently conciliate such competing views despite opportunities to do so emerging periodically throughout the last thirty years of Euro-Mediterranean relations. EU Mediterranean policy, EU foreign policy analysis, human rights, political conditionality, Barcelona Process, European Neighbourhood Policy, civil society organizations
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Mohiuddin, Asif. "Globalisation, Human Rights and Islam: Competing Narratives and Discursive Practices in The Muslim World." ICR Journal 9, no. 3 (July 15, 2018): 343–61. http://dx.doi.org/10.52282/icr.v9i3.104.
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Globalisation the growing interpenetration of ideas, states, and markets across borders has not only fostered the very blurring of distances but also growing avenues of appeal for citizens suppressed by their own states. There is no doubt that, in contemporary times, international norms and institutions for the protection of human rights are more developed than at any previous point in history. However, assaults on basic human rights continue, and the emergence of a global human rights regime may also be engendering new sources of human rights abuse. This paper examines how these developments have transformed the complex and mutable relationship between human rights and Islam and how this relationship is readjusting in response to the changing global situation. Focusing on the dramatic expansion of human rights discourse in the Muslim world, the paper argues that, for critics of Islam, the position on the incompatibility of Islam and human rights, which assumes two settled entities in an unstable relationship, is becoming hard to sustain as is the position on the Western origin of human rights. The main implication of this study is that human rights principles can be a binding international norm in a globalised world and that many normative conventions can play a pioneering role in promoting these rights and contribute to the emergence of a multicultural society.
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Millns, Susan. "Gender Auditing the Human Rights Act 1998." International Journal of Discrimination and the Law 8, no. 1-2 (December 2005): 75–90. http://dx.doi.org/10.1177/135822910500800205.
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With the passage of the Human Rights Act 1998 (HRA), a new era has begun as a distinct rights culture has come to pervade UK law, society and political life. The purpose of this article is to test the progressive credentials of the HRA in the light of the long-standing and stringent critique of rights discourse by feminists through an assessment of the legislation's capacity to improve the protection of the fundamental rights of women and sexual minorities. Using data emerging from applications of the HRA before the courts, the paper carries out a gender audit of the Act to weigh the balance of its positive and negative implications for women and minority litigants and highlights areas of activity in which claims might be further advanced in terms of human rights. Employing feminist legal scholarship to frame its analysis, the paper investigates the examples of sexual violence, reproductive rights and the rights of transgender persons and sexual minorities, in order to explore the reconfiguration of conflict of rights situations under the HRA and the balancing of competing right claims as they are beginning to emerge in the new rights culture.
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Bomhoff, Jacco, and Lorenzo Zucca. "Evans v. UK – European Court of Human Rights." European Constitutional Law Review 2, no. 3 (October 2006): 424–42. http://dx.doi.org/10.1017/s157401960600424x.
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Proportionality review and, in particular, ad hoc judicial balancing of competing rights and interests are probably the most celebrated tools propagated by the European Court of Human Rights (ECtHR) and are currently dominant features of the European discourse on rights. This methodology and its discourse, in fact, have gained such widespread popularity that, although the outcome of Convention-based and other fundamental rights claims is often far from certain, the way they will be treated by judges can be predicted with some confidence.
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On, Steve. "The "Relative Universality" of Human Rights: An Assessment." Perspectives on Global Development and Technology 4, no. 3 (2005): 577–601. http://dx.doi.org/10.1163/156915005775093241.
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AbstractThis essay makes an assessment of Jack Donnelly's model of overlapping consensus on the Universal Declaration of Human Rights. It raises key questions, such as: How to adjudicate competing rights; what is to become of "unreasonable" views; whence come reasonable views; and, beyond the obvious cases of slavery and genocide, how is the overlapping consensus obtained? While an alternative theory is not developed, a critical perspective is provided that might facilitate further inquiries.
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Camilleri, Francesca. "Compulsory vaccinations for children: Balancing the competing human rights at stake." Netherlands Quarterly of Human Rights 37, no. 3 (July 11, 2019): 245–67. http://dx.doi.org/10.1177/0924051919861797.
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Vaccination for children has been a controversial topic for decades and lately it has regained particular importance. We have seen an increase in vaccine hesitancy and decrease in vaccine confidence throughout Europe, particularly due to vaccine-safety concerns by parents. Consequently, vaccination rates for children have dropped and this in turn has led to an increased spread of vaccine-preventable infectious diseases, such as measles. As a reaction to this phenomenon of vaccine hesitancy, several European countries have introduced, while others are in the process of introducing, laws making vaccinations compulsory for children for a number of vaccine-preventable childhood diseases. The introduction of such laws affects and gives rise to several competing interests of the parents, the child and the State. Against this background, this article seeks to determine how the European Court of Human Rights should balance the competing human rights that are at stake in cases concerning compulsory vaccinations for children.
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An-Na'im, Abdullahi Ahmed. "An Inclusive Approach to the Mediation of Competing Human Rights Claims." Constellations 20, no. 1 (March 2013): 7–17. http://dx.doi.org/10.1111/cons.12016.
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Pal, Leslie A. "Competing paradigms in policy discourse: The case of international human rights." Policy Sciences 28, no. 2 (May 1995): 185–207. http://dx.doi.org/10.1007/bf00999675.
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Shyrokykh, Karina. "Compromising on Values? Human Rights Pressure and Competing Interests of the European Union in the Former Soviet States." European Foreign Affairs Review 23, Issue 1 (February 1, 2018): 119–41. http://dx.doi.org/10.54648/eerr2018007.
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What influences the European Union’s (EU’s) policy towards human rights abuse in third countries? What effects do the EU’s punitive measures have on the subsequent human rights situation? In literature, there is no consensus about the effects of such an instrument; moreover, scholars often question the consistency of its application in regions where the EU has strong strategic interests. Utilizing time-series cross-section analysis of twelve former Soviet republics over two decades, the present article demonstrates that the severity of imposed measures is guided by the actual human rights situation, and the presence of competing interests does not determine their intensity. Additionally, coercive measures are shown to have a positive effect on the subsequent human rights situation. At the same time, competing interests of the EU prove able to undermine the instrument’s ex-ante credibility and, thereby, limit its potential impact.
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Bailey, Stephen. "Article 21(3) of the Rome Statute: A Plea for Clarity." International Criminal Law Review 14, no. 3 (June 13, 2014): 513–50. http://dx.doi.org/10.1163/15718123-01403002.
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Article 21(3) of the Rome Statute provides that the application and interpretation of its applicable law must be consistent with ‘internationally recognized human rights’. Notwithstanding this unambiguous commitment to operate within the parameters of human rights, neither the Rome Statute nor the jurisprudence of the Court provide adequate guidance as to the boundaries of this commitment. ‘Internationally recognized human rights’ remain undefined. ‘Application and interpretation’ has been the subject of competing interpretations. Drawing on the ordinary rules of treaty interpretation, this article sketches a principled methodology for identifying ‘internationally recognized human rights’, proposing a persuasive approach to the phrase ‘application and interpretation’. It will be argued that, as a result of the generative power of Article 21(3), the violation of an identifiable ‘internationally recognized human right’ may command redress that is not explicitly provided for in Article 21(1).
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McNeilly, Kathryn. "Reclaiming the Radical in Universal Human Rights." International Human Rights Law Review 4, no. 2 (November 13, 2015): 256–76. http://dx.doi.org/10.1163/22131035-00402007.
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The universality of human rights has been a fiercely contested issue throughout their history. This article contributes to scholarly engagements with the universality of human rights by proposing a re-engagement with this concept in a way that is compatible with the aims of radical politics. Instead of a static attribute or characteristic of rights this article proposes that universality can be thought of as, drawing from Judith Butler, an ongoing process of universalisation. Universality accordingly emerges as a site of powerful contest between competing ideas of what human rights should mean, do or say, and universal concepts are continually reworked through political activity. This leads to a differing conception of rights politics than traditional liberal approaches but, moreover, challenges such approaches. This understanding of universality allows human rights to come into view as potentially of use in interrupting liberal regimes and, crucially, opens possibilities to reclaim the radical in rights.
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Gosh, Yashomati. "CARVING A FAIR DEAL TO SECURE RIGHT TO EDUCATION WITHIN COPYRIGHT FRAMEWORK." Revista Direitos Fundamentais & Democracia 25, no. 3 (December 15, 2020): 283–97. http://dx.doi.org/10.25192/issn.1982-0496.rdfd.v25i32057.
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Introduction
Copyright law as a tool for promoting knowledge and education
Right to Education as a Human Right
Right to education vis a vis Copyright law
International effort to Balance the competing legal rights
Right to Education exception within the Indian Copyright law
Conclusion – Need to provide Affordable education
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Markovich, Stephanie. "Balancing State Sovereignty and Human Rights." Potentia: Journal of International Affairs 1 (October 1, 2009): 57–74. http://dx.doi.org/10.18192/potentia.v1i1.4368.
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To what extent are state officials held accountable for their actions? This essay will examine a specific aspect of this question, namely whether there is an exception to the general rule that the Head of State, Head of Government and Foreign Minister are immune from prosecution in another country’s national courts for serious international crimes. It will begin with a brief review of the relevant treaty provisions relating to immunity of state officials. Second, it will examine some pre-Arrest Warrant case law specifically on the issue of potential exceptions to the immunity rule for state officials. Third, it will review the Arrest Warrant Case, an ICJ decision that halted this trend and discuss some of the issues left unresolved by the decision. Fourth, it will review the ICJ’s discussion of immunity post-Arrest Warrant in Djibouti v. France. Finally, it will explore the concept of jus cogens and whether this could help reconcile the competing interests (state sovereignty and accountability for serious international crimes) at play in this issue. This essay will conclude that while the jus cogens nature of serious international crimes does not equate to an automatic carte blanche for removing immunity, it does strongly support the developing norm of limited exceptions to the general rule of immunity.
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Song, Eun young. "Competing Values in World Culture and the Emergence of Middle Ground." Comparative Sociology 7, no. 1 (2008): 28–50. http://dx.doi.org/10.1163/156913308x260457.
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AbstractThis paper, focusing on a Botswanan case of Community-Based Natural Resource Management (CBNRM), illustrates how globalized norms in seeming competition nonetheless reveal a potential middle ground. In Botswana there have been conflicts between regimes of environmentalism and indigenous cultural rights. Environmental protectionism has been based on a concept of “pristine nature” which does not allow for human interaction. Thus, the more protected areas are designated, the more indigenous peoples' lands are claimed as nature reserves. This forces local peoples to abandon cultural practices such as hunting animals and gathering wild plants. In contrast, impelled by the ascention of human rights issues, advocacy groups for the unorganized fourth world and indigenous communities have been struggling to protect indigenous people's cultural rights, thereby giving prominence to human rights issues. NGO advocates for indigenous peoples as well as professionals involved with indigenous groups have found that indigenous people's practices are in fact not harmful to the ecosystem. Rather, their ethno-biological knowledge and customary activities contribute to balancing the local ecosystem. This means that conflicting guidelines can be harmonized in “buffer zones” around protected areas, and the buffering program that has resulted, that by CBNRM, has been widely accepted in Botswana and is likely applicable to other countries in which we find similar value competition.
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Jacobsen, Anette Faye. "Children’s Rights in the European Court of Human Rights – An Emerging Power Structure." International Journal of Children’s Rights 24, no. 3 (October 24, 2016): 548–74. http://dx.doi.org/10.1163/15718182-02403003.
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Legal research has shown mixed results regarding the application of a child-centred approach in judgments from the European Court of Human Rights. With an interdisciplinary perspective, however, a number of remarkable features become visible.This article explores case law from the European system with a blended methodology. First, a quantitative assessment of the Court’s judgments over the last decade reveals, surprisingly, that the child’s best interests doctrine has become widely used only recently, despite the principle being invoked as early as 1988. Secondly, an in-depth discourse analysis of selected landmark cases shows how the child-centred approach, in certain types of case, has gained status as the paramount consideration to the extent that it may sideline competing principles in the balancing exercise of adjudication. In the conclusion, the two types of enquiries, the statistical and the qualitative scrutiny of judgments, are combined to offer an assessment of the power of children’s rights alongside other interests in the European human rights machinery.
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Kim, Nam-Kook. "The Way of Evolution of Human Rights in Britain: European Challenges and Parliamentary Sovereignty." International Area Review 8, no. 2 (June 2005): 43–69. http://dx.doi.org/10.1177/223386590500800203.
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This paper examines how Britain tries to defend its national sovereignty against European challenges in the area of human rights policies and how the British approach to human rights has evolved after adjusting complicated demands from Europe. I explore the three British Acts of human rights and immigration policies: the Human rights Act of 1998, the 1999 Immigration and Asylum Act, and the Race Relations (Amendment) Act 2000. I assess the British case in the context of two competing views: one, human rights as a constitutive principle of, not an external imposition on, liberal nation states. The other, human rights as a universalized discourse of entitlement that rendered national citizenship inventively irrelevant. I argue that the British case basically confirms the priority of national sovereignty in the evolution of human rights regime, but shows a transition to the concept of human rights as a universalized entitlement beyond the nation state.
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Smyth, Ciara. "The Human Rights Approach to ‘Persecution’ and Its Child Rights Discontents." International Journal of Refugee Law 33, no. 2 (June 1, 2021): 238–76. http://dx.doi.org/10.1093/ijrl/eeab039.
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Abstract The longstanding debate in refugee law about the meaning of persecution has been largely resolved in favour of the human rights approach – the idea that basic human rights serve as an objective yardstick for evaluating whether a particular act might constitute persecution. However, the human rights approach produces several dilemmas, not least the question of which human rights are ‘basic’ human rights, and how to ascertain whether a given human rights violation reaches the threshold for persecution. These dilemmas have spawned various, sometimes competing, theories within refugee law scholarship. Meanwhile, a distinctive strain of child rights scholarship has emerged within refugee law, concerned with how to adapt the status determination procedure and refugee definition to children. Building upon that work, this article systematically examines the implications of the general human rights approach to persecution, and its various dilemmas, for the development of a child rights approach. The central thesis is that the human rights approach to persecution erects hidden barriers to the acceptance that violations of child rights (also) constitute persecution. Part 2 makes some preliminary observations on children’s rights that serve as a backdrop to exploring and critiquing, in part 3, the key features of the human rights approach to persecution and its implications for the rights of the child. Part 4 is a case study, based on the text of the European Union Qualification Directive and the case law of the Court of Justice of the European Union, of how the child rights implications identified in part 3 play out ‘in the real world’. It is found that when the human rights approach, based on lex generalis, is superimposed on the lex specialis that is the rights of the child, the results are disappointing. Nonetheless, the article identifies how the human rights approach to persecution can be adjusted so as to accommodate the rights of the child.
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Alnahedh, Mishari, and Nawaf Alabduljader. "Do human rights violations elicit or impede social entrepreneurship?" Social Enterprise Journal 17, no. 3 (March 5, 2021): 361–78. http://dx.doi.org/10.1108/sej-07-2020-0055.
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Purpose The purpose of this paper is to investigate two competing hypotheses about the relationship between a country’s human rights violation and social entrepreneurship entry. Design/methodology/approach Using multilevel logistic regression with random effect, this paper tested the hypotheses on a sample of 110,460 individuals in 49 countries using data from Global Entrepreneurship Monitor’s Adult Population Survey and the Survey of Social Entrepreneurship for the year 2009. This paper takes advantage of the Cingranelli-Richards Human Rights Data Project to measure a country’s level of human rights protection. Findings Human rights are positively related to social entrepreneurship entry. The findings also indicate that public sector expenditure strengthens the relationship between human rights, measured by the judiciary independence and social entrepreneurship entry. Originality/value This study contributes to the social entrepreneurship literature by conducting a novel empirical investigation of the direct relationship between a country’s human rights and social entrepreneurship entry.
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Dodson, J. Michael, Donald W. Jackson, and Laura Nuzzi O'shaughnessy. "Human rights and the Salvadoran judiciary: The competing values of independence and accountability." International Journal of Human Rights 1, no. 4 (December 1997): 50–65. http://dx.doi.org/10.1080/13642989708406694.
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Harrison, Deborah, and Lucie Laliberté. "The Competing Claims of Operational Effectiveness and Human Rights in the Canadian Context." Armed Forces & Society 34, no. 2 (May 9, 2007): 208–29. http://dx.doi.org/10.1177/0095327x06298734.
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Chan, Steve. "Human Rights in China and the United States: Competing Visions and Discrepant Performances." Human Rights Quarterly 24, no. 4 (2002): 1035–53. http://dx.doi.org/10.1353/hrq.2002.0044.
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Sandlin, Evan W. "Competing Concerns: Balancing Human Rights and National Security in US Economic Aid Allocation." Human Rights Review 17, no. 4 (August 17, 2016): 439–62. http://dx.doi.org/10.1007/s12142-016-0426-2.
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Carneiro, Cristiane de Andrade Lucena. "Economic sanctions and human rights: an analysis of competing enforcement strategies in Latin America." Revista Brasileira de Política Internacional 57, no. 1 (2014): 197–215. http://dx.doi.org/10.1590/0034-7329201400111.
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This article addresses the consequences of economic sanctions for the protection of human rights in Latin America. The literature on sanctions and compliance informs three hypotheses, which investigate the relationship between sanctions and the level of rights protection in two groups of countries: those that were targeted by sanctions and those that were not. Using data from the Political Terror Scale (PTS) and from Freedom House, I find empirical evidence that sanctions do improve the level of protection in countries that were not targeted. This finding can be explained by the deterrent effect attributed to sanctions by the compliance literature, broadly interpreted. The presence of economic sanctions in a given year increases the probability of observing better human rights practices by almost 50%. These results hold for the 12 Latin American countries that were not subject to economic sanctions for the period 1976-2004.
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Fikfak, Veronika. "Non-pecuniary damages before the European Court of Human Rights: Forget the victim; it’s all about the state." Leiden Journal of International Law 33, no. 2 (March 30, 2020): 335–69. http://dx.doi.org/10.1017/s0922156520000035.
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AbstractThis article studies how the European Court of Human Rights (ECtHR, the Court) adjusts damages for human rights violations. The article empirically analyses 13 years of ECtHR’s case law in relation to Articles 2 (right to life), 3 (torture, inhuman and degrading treatment), and 5 (arbitrary detention) of the European Convention on Human Rights (ECHR, the Convention). The goal is to understand whether the statements made by the Court about the aims pursued through just satisfaction are confirmed in practice. Through an empirical quantitative study relating to non-pecuniary damages, the article analyses the practice of the Court in awarding non-pecuniary damages for human rights violations and compares it to the competing visions of the ECtHR’s function. In particular, I am interested in determining whether just satisfaction is aimed at redressing the suffering of the victim, her circumstances and vulnerability, or whether the focus is more on the respondent state, its conduct and its past human rights record. The answers to these questions will contribute to the debate whether the ECtHR’s role is one of delivering ‘individual justice’ or whether the Court is – as an international court enforcing an international treaty – focused on the ‘state’.
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DE WET, ERIKA, and JURE VIDMAR. "Conflicts between international paradigms: Hierarchy versus systemic integration." Global Constitutionalism 2, no. 2 (June 28, 2013): 196–217. http://dx.doi.org/10.1017/s2045381713000129.
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AbstractThis article gives an overview of two competing paradigms in the practice of judicial organs for the resolution of norm conflicts, namely the paradigm of a human rights based hierarchy versus the paradigm of systemic integration or conflict avoidance. Judicial practice indicates that norm conflicts typically manifest themselves between human rights obligations on the one hand and other categories of international obligations on the other. Do judicial organs resolve such norm conflicts in a manner that favours human rights obligations? If so, this would support the view in the literature that the international legal order is increasingly operating within a paradigm of hierarchy, with human rights at its apex. The article addresses this question based on the results of a study conducted by 10 authors who have analysed the practice of domestic, regional, supranational and international courts in dealing with norm conflicts between human rights, on the one hand and the other sub-regimes of public international law mentioned above, on the other (de Wet and Vidmar 2011). The article argues that judicial practice reveals no clear or consistent patterns of a human rights based hierarchy in international law can currently be induced from the manner in which courts resolve norm conflicts in international law. Instead, courts avoid resolving norm conflicts within a paradigm of hierarchy and instead remain within a paradigm of systemic integration that is aimed at maximizing the accommodation of competing sub-regimes of public international law.
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Noll, Gregor. "Why Human Rights Fail to Protect Undocumented Migrants." European Journal of Migration and Law 12, no. 2 (2010): 241–72. http://dx.doi.org/10.1163/157181610x496894.
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AbstractIn this article, I depart from the factual difficulties of undocumented migrants to access a state’s protection mechanisms for avowedly universal human rights. I relate this aporia to two competing conceptions of territorial jurisdictions. Drawing on the Convention on the Rights of the Child and the Migrant Workers Convention, I separate the sphere of the political community (the polis) and that of the house-hold (the oikos) in developing a political theory of undocumented migration. It rests two central tenets: one is a tributary transaction between sending state and host state, in the course of which the undocumented migrant worker is offered without conditions attaching, yet with the hope of remittances flowing in return. This offering relates to the oikos, which makes available a limited degree of protection under labour law. The second is a contractual form of submission by the undocumented migrant worker, which is structurally analogous to the master-slave relationship developed in Hobbes’ defense of war slavery. This is related to the polis, which denies all meaningful political activity to the undocumented migrant (as reflected in the denied right to found labour unions). Finally, drawing on Werner Hamacher’s work, I analyse how human rights are intrinsically related to a position of privacy, which escalates into a form of isolation under the structures producing undocumented migrants.
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Cohen, Miriam, and Sarah-Michèle Vincent-Wright. "Conflict Resolution in Human Rights Cases: The Role of the Supreme Court of Canada." Constitutional Review 8, no. 2 (December 30, 2022): 295. http://dx.doi.org/10.31078/consrev824.
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This paper examines the role of the Supreme Court of Canada (SCC) in resolving human rights conflicts and balancing individual and collective rights. With a multiple control mission, the Court must interpret the Constitution and resolve disputes over competing rights and interests, based on the principle of constitutional democracy. This paper specifically focuses on the SCC’s role in conflict resolution in human rights cases, especially in the complex legal framework of protection existing in Canada. It also addresses how the Court’s rulings may affect the protection of fundamental rights under the Canadian Charter, illustrated by some key examples from the Court’s caselaw. To this end, the first part provides a descriptive overview of the complex fabric of human rights protection in the Canadian constitutional framework. The second part discusses the SCC’s role in protecting human rights within the Canadian legal system. Ultimately, this paper underscores the fundamental role of a Supreme Court in protecting human rights in situations of multiple rights conflicts.
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Forsythe, David P. "Human Rights after the Cold War." Netherlands Quarterly of Human Rights 11, no. 4 (December 1993): 393–412. http://dx.doi.org/10.1177/016934419301100402.
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The central thesis in this article is that international concern with human rights will remain what it has already become: one of the major issues on international law. The end of the Cold War has had a dual impact on international human rights, contributing both to violations of rights and renewed efforts to ameliorate those violations. The complexities of the subject are discussed according to these paradoxes and a synthesis. The first paradox is general: the increasing consensus not only on the notion and core definition of universal human rights, but also on the propriety of certain types of international action to push for their implementation is joined by the fact that human rights remains one of the most controversial aspects of world affairs. The next two paradoxes are derived from, but more specific manifestations of the first. The second paradox consists of: while the international community continues to confer legitimacy on public authorities through bilateral and multilateral political acceptance, it also flirts with awarding legitimacy because of moral factors. The third paradox is that the territorial state retains the most power and legal authority relative to other actors on public policy, but at the same time its jurisdiction is being penetrated and its operative authority weakened. The dominant principle of present concern is the traditional emphasis in world affairs on state independence, combined with pursuit of state security and wealth. The competing principle is on international emphasis on universal human rights. The resulting synthesis entails an advance for human rights and a concomitant reduction in the absolute values of national independence especially as translated into state security and economic policies, but in a very uneven and ‘ragged’ way that does not completely undermine the territorial state and its sovereignty.
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Moon, Richard. "Limits on Constitutional Rights: The Marginal Role of Proportionality Analysis." Israel Law Review 50, no. 1 (February 9, 2017): 49–68. http://dx.doi.org/10.1017/s0021223716000327.
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Canada is often cited as one of the principal sources of proportionality analysis – an approach to the determination of limits on constitutional rights that has been adopted in many jurisdictions. The two-step structure of constitutional rights adjudication is built on the idea that these rights are the basic conditions of individual autonomy or liberty that must be protected from the demands of collective welfare. At the first stage of the adjudication the court determines whether the restricted activity falls within the scope of the right. At the second stage the court balances the right against the competing interest advanced by the restrictive law to determine whether the restriction is justified. Yet few of these rights fit this individual liberty model and are better understood as social or relational in character, protecting different aspects of the individual's interaction or connection with others in the community. If we recognise that most constitutional rights do not simply protect individual autonomy but instead protect different aspects of human flourishing or dignity within community then two conclusions may follow. First, there can be no single generic test for limits on rights. The form or character of ‘limitations’ on these rights may differ in significant ways. Second, the two steps of adjudication may often be difficult to separate, or the separation may seem quite artificial. Many of the issues addressed by the courts will not fit easily into the two-step structure of analysis because the ‘competing’ interests are really different dimensions of a social relationship.
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Gillespie, Josephine. "World Heritage Protection and the Human Right to Development: Reconciling Competing or Complimentary Narratives Using a Human Rights-Based Approach (HRBA)?" Sustainability 5, no. 7 (July 22, 2013): 3159–71. http://dx.doi.org/10.3390/su5073159.
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Aridi, Vicky. "Finding a Legal Balance between the Right to Strike and Right to Education in Kenya." Strathmore Law Review 5, no. 1 (August 1, 2020): 85–109. http://dx.doi.org/10.52907/slr.v5i1.119.
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The teachers’ right to strike and the children’s right to education are both essential rights recognised by national and international laws in Kenya. Despite this fact, there are instances where conflicts arise between these two rights. The courts have a mandate to balance competing human rights in instances of conflict. However, whenever there has been a conflict between the two rights, Kenyan courts have issued injunctions that require public-school teachers to suspend their strike. By doing so, the courts are leaving the teachers with no effective alternative mechanism to address their pertinent needs. The question of how a balance between the teachers’ right to strike and the children’s right to education in Kenya can be attained is thus an essential concern that is at the focal point of this paper. In a bid to address this question, Kenya’s Constitution, Children’s Act, Labour Relations Act, and case law from the Court of Appeal; namely, TSC v KNUT & 3 others, are analysed to reveal Kenya’s position on the two rights and the various balancing approaches available.
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Giegerich, Thomas. "Freedom of Religion as a Source of Claims to Equality and Problems for Equality." Israel Law Review 34, no. 2 (2000): 211–59. http://dx.doi.org/10.1017/s002122370001195x.
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The earliest political and legal documents inaugurating the era of constitutionalism in the late 18th century already emphasized the principles of liberty and equality. The first one, the American Declaration of Independence of 1776, attributes the liberty and equality of human beings to the Creator, thus giving a religious explanation for its postulates. The second one, the French Declaration of the Rights of Man and Citizen of 1789, plainly states in its first article that humans are born and remain free and equal in rights, which are defined as natural rights serving the public good and thereby put in a more secular context, although the Déclaration also recognizes the presence and protection of the “Supreme Being”. Ever since, the religious and the secular explanations have been competing with and supplementing each other in ensuring the effective protection of human rights. And ever since, liberty and equality have been competing with and supplementing each other in keeping the proper balance between the interests of society and the aspirations of the individual.
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VU, Giao Cong, and Kien TRAN. "Constitutional Debate and Development on Human Rights in Vietnam." Asian Journal of Comparative Law 11, no. 2 (December 2016): 235–62. http://dx.doi.org/10.1017/asjcl.2016.27.
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AbstractThis article analyzes the constitutional debate on and development of human rights in Vietnam throughout five constitutions from 1946 to 2013, as well as the prospects and challenges in promoting human rights in Vietnam during and after the development of its 2013 Constitution. It begins with an investigation and discussion of the human rights provisions from the 1946 Constitution to the 1992 Constitution – a period where the socialist human rights tradition was established in Vietnam. It follows with an analysis of the debates on the new human rights and citizens’ rights provisions in the 1992 Constitution, where a new concept of natural human rights emerged. The article continues to explore how the struggle and debates surrounding the competing conception of rights – socialist and positivist on one hand and natural law-based on the other – come into play in shaping the 2013 Constitution. It then proceeds to evaluate the potential challenges involved in the implementation of these rights in the coming years. The authors argue that the development of constitutional human rights in Vietnam is still limited by ideological barriers. It also faces substantial practical challenges owing to, inter alia, the absence of provisions for the immediate implementation of such rights as well as legal mechanisms for the protection of constitutional rights, such as a constitutional review system.
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Riddell, Sheila, and Nick Watson. "Equality and Human Rights in Britain: Principles and Challenges." Social Policy and Society 10, no. 2 (February 24, 2011): 193–203. http://dx.doi.org/10.1017/s1474746410000540.
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In the UK and many other European countries, there continue to be concerns about a range of social issues including the position of immigrants, the educational attainment of marginalised groups and the persistence of the gender pay gap. Increasingly, governments and NGOs assert that the promotion of equality and human rights policies are central to addressing these issues, with a view to creating societies which are both more equitable and more efficient. Over the past decade and a half, a period of economic growth followed recently by a major recession, the equality and human rights agenda enjoyed a high political profile. However, as we discuss in this review article, the social and economic optimism of the late nineties and early to mid noughties has been followed by economic retrenchment, a commitment to the shrinking of the state and the public sphere across Europe and a general move to the political right. In this article, we first review the political context which led to the rise of the equality and human rights agenda. Subsequently, we examine competing conceptualisations of equality and their operationalisation within British social policy. Finally, we assess the progress which has been made towards achieving a more equal society in the UK over recent years drawing on data gathered and analysed by the National Equality Panel (NEP, 2010).
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Davitti, Daria. "Proportionality and Human Rights Protection in International Investment Arbitration: What’s Left Hanging in the Balance?" Nordic Journal of International Law 89, no. 3-4 (November 12, 2020): 343–63. http://dx.doi.org/10.1163/15718107-89030005.
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Abstract This article focuses on the proportionality analysis carried out by international investment tribunals when the protection of foreign investment adversely impacts the protection of human rights. International investment arbitrators are increasingly called to adjudicate awards which require a ‘balancing’ between the so-called rights of investors, protected as they are by relevant international investment agreements (iia), and the rights of third parties affected by foreign investment. Such balancing often entails, at its core, a controversial juxtaposition between investment protections and human rights protections. In this article, I argue that a balancing between investors’ rights and human rights is neither possible nor desirable. This argument is crucial to demystify existing assumptions surrounding the use of balancing and proportionality in international investment arbitration as a way of successfully reconciling competing interests as well as conflicting protection obligations vested upon a host State.
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Bunting, Annie. "“Authentic Sharia” as Cause and Cure for Women’s Human Rights Violations in Northern Nigeria." Hawwa 9, no. 1-2 (2011): 152–70. http://dx.doi.org/10.1163/156920811x578485.
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AbstractBy analysing the proposals contained in the report, “Promoting Women’s Rights Through Sharia in Northern Nigeria,” which was published by the Centre for Islamic Legal Studies at Ahmadu Bello University (ABU) in Zaria in 2005, this paper explores the complexities and consequences of a rights strategy grounded in “an authentic understanding of Sharia.” The paper argues that this strategy may further constrain the discourses of debate for Muslim women in northern Nigeria. It also discusses how the strategy privatizes responsibility for poverty eradication, and how it ignores competing languages of social change, including Nigerian and international women’s rights.
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Ravnborg, H. M., and K. M. Jensen. "The water governance challenge: the discrepancy between what is and what should be." Water Supply 12, no. 6 (October 1, 2012): 799–809. http://dx.doi.org/10.2166/ws.2012.056.
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In 2010, the UN General Assembly declared the right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights. Yet, findings from the Competing for Water research programme suggest that all too often, people in need of water for domestic purposes lose out to people and companies who claim access to water for productive purposes. Likewise, in many countries, specific water authorities at national as well as basin and watershed level have been formed and assigned the responsibility to allocate water according to the water policy and the associated legal framework. Yet, findings from the Competing for Water research programme show that real-world water allocation takes place through a wide array of institutions, ranging from the rural community, over agreements mediated by local lawyers, district officials and non-governmental organisations, to decisions made in the president's office. The Competing for Water programme entails empirical research conducted in Bolivia, Mali, Nicaragua, Vietnam and Zambia. Based on findings from this research, this paper identifies the discrepancies between statutory and actual water governance, analyses the underlying causes and explores the implications for ongoing water governance reform.
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Salam, Abdul Jalil, and Zahlul Pasha Karim. "Death Penalty in Indonesia: Revisiting the Debate Between the Retentionist and the Abolitionist." Lentera Hukum 8, no. 1 (April 24, 2021): 115. http://dx.doi.org/10.19184/ejlh.v8i1.20138.
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Historically, Indonesia's death penalty does not originate from religious doctrine but a series of democratization processes agreed upon in the legislation. Amidst these processes, two competing opinions respond to Indonesia's death penalty: the retentionist and the abolitionist. These different approaches to address the death penalty, whether imposed or abolished, result in competing perspectives and arguments in regulatory and practical issues both in the national and international arena. This study aimed to revisit the death penalty discourse in Indonesia that opposes the human approach by assuming that the death penalty violates human rights. The data were analyzed in three steps, among other things, unitization, comparison, and conclusion. This study showed that the death penalty remains relevant to Indonesia despite the long struggle of its rejection. It concluded that Indonesia's imposition of the death penalty is regarded as worth defending, with specific and selective applications. The specific application means that the death penalty is applicable for corruptors, drug dealers, terrorists, gross human rights violators, and premeditated murders. Selective application means that a convict sentenced to death must be proven in court with a level of accuracy considered and accepted in law.
KEYWORDS: Death Penalty, Criminal Law, Right to Life, Indonesian Law.
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Nmehielle, Vincent O. "Genomics, Insurance and Human Rights: Is there a Place for Regulatory Frameworks in Africa?" African Journal of Legal Studies 2, no. 1 (2006): 20–34. http://dx.doi.org/10.1163/221097312x13397499736381.
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AbstractThis article examines the human rights dimension of genetic discrimination in Africa, exploring the place of regulatory frameworks while taking into account the disadvantaged position of the average African. This is in response to the tendency of insurance companies toward making health insurance decisions on the basis of individual genetic information, which could result in genetic discrimination or health insurance discrimination based on a person's genetic profile. The author considers such questions as the intersection between human rights (right to life, health, privacy, human dignity and against genetic discrimination) in relation to the insurance industry, as well as the obligations of state and non-state actors to promote, respect, and protect the enjoyment of these rights. The article argues that African nations should not stand aloof in trying to balance the competing interests (scientific, economic and social) presented by the use of genetic information in the health care context and that ultimately it is the responsibility of states to develop domestic policies to protect their most vulnerable citizens and to prevent entrenched private discrimination based on an individual's genes.
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Gronow, Alexandra. "Identifying victims of sexual harassment in the age of #MeToo: Time for the media to prioritise a victim’s right to privacy." Alternative Law Journal 46, no. 2 (March 25, 2021): 120–27. http://dx.doi.org/10.1177/1037969x211003681.
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This article explores the practice of the media to unreasonably intrude on victims' privacy in Australia by reference to three women whose sexual harassment grievances were published by the media without their consent. This article argues that the protection of a victim’s privacy is a fundamental human right which should trump competing public interest considerations in the Australian context. In the absence of an established tort of privacy or bill or charter of human rights in Australia, the media must apply ethical journalism standards and abstain from identifying victims of sexual harassment without their consent.
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Novoseltsev, A. Yu, and K. V. Stepanyugin. "Self-evident truths in a modern interpretation." Legal Science in China and Russia, no. 4 (September 16, 2021): 114–17. http://dx.doi.org/10.17803/2587-9723.2021.4.114-117.
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The article deals with the problematic issues of interpretation of such conceptual concepts as human rights and democracy. According to the authors the Western interpretation of the humanitarian agenda has an independent competing alternative.