Journal articles on the topic 'Human rights and justice issues (excl. law)'
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1
Lewis, Bridget. "Human Rights and Environmental Wrongs: Achieving Environmental Justice through Human Rights Law." International Journal for Crime, Justice and Social Democracy 1, no. 1 (November 5, 2012): 65–73. http://dx.doi.org/10.5204/ijcjsd.v1i1.69.
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The numerous interconnections between the environment and human rights are well established internationally. It is understood that environmental issues such as pollution, deforestation or the misuse of resources can impact on individuals’ and communities’ enjoyment of fundamental rights, including the right to health, the right to an adequate standard of living, the right to self-determination and the right to life itself. These are rights which are guaranteed under international human rights law and in relation to which governments bear certain responsibilities. Further, environmental issues can also impact on governments’ capacity to protect and fulfil the rights of their citizens. In this way human rights and environmental protection can be constructed as being mutually supportive. In addition to these links between the environment and human rights, human rights principles arguably offer a framework for identifying and addressing environmental injustice. The justice implications of environmental problems are well documented and there are many examples where pollution, deforestation or other degradation disproportionately impact upon poorer neighbourhoods or areas populated by minority groups. On the international level, environmental injustice exists between developed and developing States, as well as between present and future generations who will inherit the environmental problems we are creating today. This paper investigates the role of human rights principles, laws and mechanisms in addressing these instances of environmental injustice and argues that the framework of human rights norms provides an approach to environmental governance which can help to minimise injustice and promote the interests of those groups which are most adversely affected. Further, it suggests that the human rights enforcement mechanisms which exist at international law could be utilised to lend weight to claims for more equitable environmental policies.
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Mamedov, Yusif. "Islamic criminal procedure law: human rights issues." Grani 23, no. 10 (October 30, 2020): 47–57. http://dx.doi.org/10.15421/172092.
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It has been established that harsh Islamic punishments are practically not applied due to the high burden of proof and the need to involve an exhaustive number of witnesses. It has been proven that the Islamic criminal justice system provides the accused with basic guarantees. It is noted that according to Sharia, Islamic crimes are divided into three categories: Hadd, Qisas and Tazir. It is noted that Islamic criminal law provides that the accused is not guilty if his guilt is not proven. It is noted that equality before the law is one of the main legal principles of the Islamic criminal model, as all persons are equal before the law and are condemned equally regardless of religious or economic status (lack of immunity). There are four main principles aimed at protecting human rights in Islamic criminal law: the principle of legality (irreversible action), the principle of presumption of innocence, the principle of equality and the principle of ultimate proof. In addition, the Islamic criminal justice system provides defendants with many safeguards, which are always followed during detention, investigation, trial and after trial. It is established that such rights are: 1) the right of every person to the protection of life, honor, freedom and property; 2) the right to due process of law; 3) the right to a fair and open trial before an impartial judge; 4) freedom from coercion to self-disclosure; 5) protection against arbitrary arrest and detention; 6) immediate court proceedings; 7) the right to appeal. It is noted that if a person is charged, he/she has many remedies It is noted that the trial must be fair, in which the qadi (judge) plays an important role. It has been established that, in addition to the procedural guarantees, the qualifications and character of the qadi, as well as the strict requirements of Islamic rules of proof, are intended to ensure a fair trial in the case of the accused. Adherence to these principles has been shown to indicate that the rights of the accused are fully guaranteed under Islamic criminal law.
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Brookman, Fiona, Lesley Noaks, and Emma Wincup. "Access To Justice: Remand Issues And The Human Rights Act." Probation Journal 48, no. 3 (September 2001): 195–202. http://dx.doi.org/10.1177/026455050104800305.
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Ghandhi, Sandy. "II. AVENA AND OTHER MEXICAN NATIONALS {MEXICO v UNITED STATES OF AMERICA), PROVISIONAL MEASURES, ORDER OF 5 FEBRUARY 2003." International and Comparative Law Quarterly 53, no. 3 (July 2004): 738–46. http://dx.doi.org/10.1093/iclq/53.3.738.
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The International Court of Justice is not a human rights court but it does hear human rights cases.1This is hardly remarkable. As Professor Ian Brownlie has pointed out ‘[h]uman rights problems occur in specific legal contexts. The issues may arise… within the framework of a standard-setting convention, or within general international law.’2Because human rights treaties normally have their own dispute settlement procedure, the situations in which the International Court of Justice is more likely to have to grapple with human rights issues lie within the realms of general international law or in non-human rights specific treaty provisions, which may, nevertheless, raise such issues. In addition, some human rights treaties, such as the Convention on the Prevention and Punishment of the Crime of Genocide 1948, contain provisions specifically referring disputes to the International Court of Justice.3Thus, it should come as no surprise that the Court has been involved in a number of cases involving human rights questions.
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HIGGINS, ROSALYN. "Human Rights in the International Court of Justice." Leiden Journal of International Law 20, no. 4 (December 2007): 745–51. http://dx.doi.org/10.1017/s0922156507004414.
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In this speech delivered at the conference honouring Professor Dugard, President Higgins discusses various human rights issues that have come before the International Court of Justice, including self-determination, reservations to human rights treaties, the application of human rights instruments to occupied territories, and allegations of genocide by one state against another. President Higgins notes that in the past few decades the ICJ has been joined by regional human rights courts, commissions and treaty monitoring bodies. Similar human rights claims are surfacing in these diverse fora, but the acknowledged expertise of these specialist bodies and the desire to avoid fragmentation provide an impetus for all concerned to seek common solutions on evolving points of law.
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Volger, Claus. "Status detentionis, human dignity and protection of human rights in the European criminal law." Yearbook of International & European Criminal and Procedural Law 1, no. 1 (January 15, 2023): 425–52. http://dx.doi.org/10.12681/yiecpl.33011.
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Human life and dignity, the status of prisoners, their problems and rights after the Tampere European Council and the CFREU are still an ongoing topic and main objective for the European area of freedom, security and justice. Their implementation is a very difficult path not due to the overcrowding of the European prison system but also due to the lack of internal, national rules that hinder human dignity and life of prisoners. The jurisprudence of the two European Courts (Court of Justice of the European Union (CJEU and European Court of Human Rights (ECtHR) is rich and indirectly it highlights a continuous impartial dialogue to address delicate problems of vulnerable people such as prisoners and still unresolved issues that are based on articles of the treaty of Lisbon and the Charter of the Fundamental Rights of the European Union (CFREU).
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PIERIK, ROLAND, and WOUTER WERNER. "Cosmopolitism, Global Justice, and International Law." Leiden Journal of International Law 18, no. 4 (December 2005): 679–84. http://dx.doi.org/10.1017/s0922156505002955.
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Along with the exploding attention to globalization, issues of global justice have become central elements in political philosophy. After decades in which debates were dominated by a state-centric paradigm, current debates in political philosophy also address issues of global inequality, global poverty, and the moral foundations of international law. As recent events have demonstrated, these issues also play an important role in the practice of international law. In fields such as peace and security, economic integration, environmental law, and human rights, international lawyers are constantly confronted with questions of global justice and international legitimacy. This special issue contains four papers which address an important element of this emerging debate on cosmopolitan global justice, with much relevance for international law: the principle of sovereign equality, global economic inequality, and environmental law.
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Collinson, Robert, Alice Diver, and Sharon McAvoy. "Clients, clinics and social justice." Higher Education, Skills and Work-Based Learning 8, no. 3 (August 13, 2018): 323–36. http://dx.doi.org/10.1108/heswbl-03-2018-0037.
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PurposeThe purpose of this paper is to present a case study of an innovative, three-module pathway designed by the Department of Law and Criminology at Edge Hill University (England) in 2014. In addition to supporting the work of its campus pro-bono law clinic, the first-two modules aim to enhance and evidence the legal skills of EHU’s undergraduate LLB students, to embed a deeper awareness of the (legal) ethics needed for sustainable legal practice (within PRME), and to highlight the increasing need for socially responsible advocates, able to defend the rights of marginalised, vulnerable clients.Design/methodology/approachThe critical analysis of the content and scope of an innovative, work-based learning LLB module pathway, which furthers the aim of the UN Global Compact and the PRME, and ties them firmly to socio-legal issues and advocacy involving recent jurisprudence.FindingsThe case law used within the modules, and the practical work of the students in the campus law clinic, are relevant to social justice issues and to the promotion of PRME values—they promote awareness of human rights principles, highlight the importance of access to legal services and provide students with knowledge of legal ethics. Enhanced employability skills flow from this.Research limitations/implicationsThis is a narrow case study but still provides a useful analysis of an innovative, PRME relevant module pathway. The model mirrors international trends in clinical legal education and also offers a template for other law schools keen to promote the concept of ethical, just legal practice.Practical implicationsThe paper posits that enhanced employability can flow from real world tasks such as advocacy for marginalised or disadvantaged groups and presents an exemplar for other law schools wishing to embed ethics/clinical law practice into their curriculum.Social implicationsThe paper highlights how the campus law clinic serves the public in a deprived region—it raises awareness of human rights and of social justice issues. It has the potential to feed into litigation on social welfare issues (housing, social security, child welfare, etc.).Originality/valueThe discussion of the human rights case law that is used in the Year 2 “bridging module” (which prepares students for working in the law clinic in their final year) is particularly relevant and is analysed in detail, highlighting how this module pathway is aimed at promoting PRME and UN Global Compact principles.
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Madhloom, Omar, and Irene Antonopoulos. "Clinical Legal Education and Human Rights Values: A Universal Pro Forma for Law Clinics." Asian Journal of Legal Education 9, no. 1 (October 26, 2021): 23–35. http://dx.doi.org/10.1177/23220058211051031.
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This article explores the theoretical foundations for a social justice–centric global law clinic movement. Our starting position is that law clinics, a type of clinical legal education (CLE), are in a unique position to engage in, and potentially promote, social justice issues outside their immediate communities and jurisdictions. To achieve this aim, it is necessary for law clinics to adopt a universal pro forma underpinned by the key concepts of CLE, namely social justice education and promoting access to justice through law reform. We argue that the main features of CLE are aligned with those of the Universal Declaration of Human Rights (UDHR) on issues such as human dignity and social justice. Incorporating UDHR values into CLE serves three purposes. First, it acts as a universal pro forma, which facilitates communication between clinics across jurisdictions, irrespective of their cultural or legal background. Second, it allows clinics to identify sources of global injustices and to share resources and expertise to collectively address injustices. Third, the theoretical approach advocated in this article argues that clinics have a Kantian moral right to engage in transnational law reform.
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Cahyani, Ferina Ardhi. "Intergenerational Environmental Justice as a Human Rights Fulfillment." Jurist-Diction 5, no. 2 (March 31, 2022): 485–94. http://dx.doi.org/10.20473/jd.v5i2.34890.
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AbstractEnvironmental issues are currently getting a lot of attention both in Indonesia and internationally. The rise of irresponsible deforestation, air pollution in big cities, irresponsible industries for the waste produced, the use of goods that are difficult to decompose, and so on are examples of how bad environmental conditions are today. In fact, the guarantee for a healthy environment is stated in the 1945 Constitution of the Republic of Indonesia. In addition, the environment is also regulated separately in Law Number 32 of 2009 concerning Environmental Protection and Management. The principle of sustainable development should be applied in carrying out all activities that affect the environment. However, the present generation who are responsible for the availability and preservation of natural resources for future generations so that intergenerational justice can be realized.Keywords: Intergenerational Justice; Environmental justice; Human Rights; Sustainable Development.
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Hogg, Russell. "Leanne Weber, Elaine Fishwick and Marinella Marmo (2014) Crime, Justice and Human Rights. Palgrave Macmillan." International Journal for Crime, Justice and Social Democracy 4, no. 2 (July 1, 2015): 125–26. http://dx.doi.org/10.5204/ijcjsd.v4i2.243.
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Crime, Justice and Human Rights is an invaluable resource for those interested in the growing links between human rights, criminal justice and criminology. The authors have succeeded in producing a systematic survey of issues and debates arising at the contemporary interface of human rights and criminal justice that is comprehensive in its coverage of the literature and core topics, richly informative, clear and accessible. As such the book is highly recommended as a text for upper undergraduate or postgraduate units on human rights and criminal justice/criminology. Of particular note in this regard are the additional resources and useful links provided at the end of each chapter. But to commend it only as a text would sell it short, for it introduces and engages theoretical debates and critical perspectives around human rights in a way that will be of interest to an academic audience well beyond the classroom setting.Download the PDF file from this page to access the full review of this book.
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Haidan, Haidan, and Edi Santoso. "The Prisoners' Rights Protection in Indonesia Law System of Justice." International Journal of Nusantara Islam 4, no. 1 (March 14, 2016): 63–78. http://dx.doi.org/10.15575/ijni.v4i1.1185.
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The aim of the paper is to examine the provision of the prisoner’s rights protection in Indonesia law system of justice and its relation to the exemption conditional (EC) in correctional institution. As an important issue, here is if the defendant override rules associated with the controversial issue in society, they will both at national and international level, such as human rights issues. The case was appeared recently, especially in the connection with the cases of exemption conditional, i.e. Pollycarpus Budihari Priyanto’s case. The case has become the center of public attention, especially after release of the Ministry of Law and Human Rights, who has been freeing the prisoners that related to the homicides Human Rights Activists (HRA) i.e Munir Said Thalib. In the community, this decision raises the pro and contra. This paper concludes that all persons deprived of their liberty will be treated with humanity and guaranteed them with respect for the inherent dignity of the human person to be in accordance with the existing rules. In this case, the government of Indonesia has given the rights of prisoners through the stages of development of the inmates according to the stage of the penal process that refers to laws and regulations and implementation of technical regulations. The paper also recommends that the need for the government to deliver data either traditionally or electronically linked plan of exemption conditional.
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Knox, John H. "Constructing the Human Right to a Healthy Environment." Annual Review of Law and Social Science 16, no. 1 (October 13, 2020): 79–95. http://dx.doi.org/10.1146/annurev-lawsocsci-031720-074856.
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Despite the absence of a right to a healthy environment in the Universal Declaration of Human Rights or any global human rights treaty, environmental human rights law has rapidly developed over the past 25 years along three paths: ( a) the widespread adoption of environmental rights in regional treaties and national constitutions; ( b) the greening of other human rights, such as the rights to life and health, through their application to environmental issues; and ( c) the inclusion in multilateral environmental instruments of rights of access to information, public participation, and access to justice. After describing these developments, this review assesses the possible effects of UN recognition of the human right to a healthy environment, both on the environment and on human rights law itself.
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McCrudden, Christopher. "Using Comparative Reasoning in Human Rights Adjudication: The Court of Justice of the European Union and the European Court of Human Rights Compared." Cambridge Yearbook of European Legal Studies 15 (2013): 383–415. http://dx.doi.org/10.1017/s1528887000003104.
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Abstract This chapter examines the relationship between the methods that the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) use to decide disputes that involve ‘human’ or ‘fundamental’ rights claims, and the substantive outcomes that result from the use of these particular methods. It has a limited aim: in attempting to understand the interrelationship between human rights methodology and human rights outcomes, it considers primarily the use of ‘comparative reasoning’ in ‘human’ and ‘fundamental’ rights claims by these courts. It is not primarily concerned with examining the extent to which the use of comparative reasoning is based on an appropriate methodology or whether there is a persuasive normative theory underpinning the use of comparative reasoning. The issues considered in this chapter do some of the groundwork, however, that is necessary in order to address these methodological and normative questions.
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Anzenbacher, Arno. "Kooperation, Konflikt und Anerkennung." Zeitschrift für Evangelische Ethik 45, no. 1 (February 1, 2001): 168–80. http://dx.doi.org/10.14315/zee-2001-0125.
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Abstract The systematic development of the concept of justice occurs on the basis of human rights. First, this human rights basis is examined in terms of theories of conflict and cooperation. Furthermore, it is investigated whether wisdom suffices as the basis of human rights or whether moral norms are necessary. With the distinguishing of human rights into negative, active and positive rights, distinctions result with respect to the concept of justice, leading to the concepts of a state under the rule of law, democracy and the welfare state, and explaining the concept of socialjustice through exchange, participation, distribution, and procedural faimess. Overcoming the tension between formal rights of freedom and social rights, reference is made to the principles of subsidiarity and democracy. Finally, issues arising with respect to the theory of justice are considered in relation to the problern of globalisation.
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Cespedes, Rodrigo. "Indigenous autonomy and justice for latin american Indigenous women." REVISTA CUHSO 30, no. 1 (July 23, 2020): 126–44. http://dx.doi.org/10.7770/cuhso-v30n1-art2116.
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My paper deals with indigenous peoples’ rights, focusing on Latin American case-law related to gender issues. Latin American Courts have faced cases related to sexual crimes or domestic violence among indigenous people and have to choose between giving pre-eminence to women’s rights or indigenous autonomy. On deciding those cases, the tools provided by the proportionality test are paramount in order to analyse the case-law. The indigenous rights regimes (ILO-169, UNDRIP) may prevail or not against other human rights systems (which specially protect women or children) according to the facts of the case, but also according to domestic legal cultures modelled by the country’s historical evolution.
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Cespedes, Rodrigo. "Indigenous autonomy and justice for latin american Indigenous women." REVISTA CUHSO 30, no. 1 (July 23, 2020): 126–44. http://dx.doi.org/10.7770/cuhso.v30i1.2116.
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My paper deals with indigenous peoples’ rights, focusing on Latin American case-law related to gender issues. Latin American Courts have faced cases related to sexual crimes or domestic violence among indigenous people and have to choose between giving pre-eminence to women’s rights or indigenous autonomy. On deciding those cases, the tools provided by the proportionality test are paramount in order to analyse the case-law. The indigenous rights regimes (ILO-169, UNDRIP) may prevail or not against other human rights systems (which specially protect women or children) according to the facts of the case, but also according to domestic legal cultures modelled by the country’s historical evolution.
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Kirby, Michael. "Health care and global justice." International Journal of Law in Context 7, no. 3 (September 2011): 273–84. http://dx.doi.org/10.1017/s1744552311000127.
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AbstractAfter outlining his experience in the world of bioethics, the author draws on his role in the UNESCO International Bioethics Committee to explain the new Universal Declaration of Bioethics, adopted by UNESCO in 2005. He describes it as the first global attempt to reconcile the differing sources of bioethical principles: health-care practice and experience and universal human rights. Whilst collecting, and accepting, some criticism of the text of the Declaration, the author sees its chief values as lying in the wider ethical issues that it reflected of concern to the community, the world and biosphere as well as in the adjustment of health-care approaches for consistency with the growing impact of universal human rights law. Whilst acknowledging the differing social experiences of people in different regions of the world, he invokes Amartya Sen to cast doubt on the notion of specific ‘Asian values’, whether in bioethics or human rights.
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Destrooper, Tine. "Accountability for Human Rights Violations in Cambodia: Mapping the Indirect Effects of Transitional Justice Mechanisms." Asia-Pacific Journal on Human Rights and the Law 19, no. 2 (December 18, 2018): 113–39. http://dx.doi.org/10.1163/15718158-01902002.
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When studying accountability for human rights violations in Cambodia, it is crucial to understand the role human rights non-governmental organisations (ngos) can play in holding duty-bearers accountable. This article consists of two parts. The first traces how some prominent Cambodian ngos use the language of human rights and which issues they prioritise. The analysis shows that issues related to civil and political rights dominate their discourse, while there is remarkably little attention to issues relating to economic, social and cultural rights. This prioritisation is not rooted in popular priorities, nor can it be adequately explained by referring to mainstream theories of donor influence or professionalised elites. To better understand where these priorities come from, the second part of the article examines the Cambodian transitional justice process. This analysis shows a significant overlap between the priorities of the selected ngos and those of the Extraordinary Chambers in the Courts of Cambodia (eccc). It is therefore argued that transitional justice mechanisms, like the eccc, may have an agenda-setting power far beyond what is commonly assumed. In this specific case, this influence raises questions about accountability for past and on-going violations of economic, social and cultural rights.
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Peers, Steve. "The Rebirth of the EU’s Charter of Fundamental Rights." Cambridge Yearbook of European Legal Studies 13 (2011): 283–309. http://dx.doi.org/10.1017/s1528887000002056.
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AbstractSince the conferral of binding legal effect on the EU’s Charter of Fundamental Rights with the entry into force of the Treaty of Lisbon, the Court of Justice has taken an active role in developing the Charter as the leading source of human rights rules in the EU legal order. While the Court has begun to clarify some important points relating to the Charter, a number of significant issues still need to be addressed.
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Hidayat, Maskur. "HUKUM PERDATA PROGRESIF: PERUBAHAN DAN KESINAMBUNGAN PENEMUAN HUKUM DI BIDANG HUKUM PERDATA." Jurnal Hukum dan Peradilan 3, no. 3 (November 28, 2014): 269. http://dx.doi.org/10.25216/jhp.3.3.2014.269-280.
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Law is a tool that people can achieve order and the protection of basic human rights. Among others, the right to life and protection, both physical protection, protection of honor and decency and the protection of property rights or properties. The phrase that nothing is eternal except change undoubtedly also applies in the legal world. Every moment is always evolving human problems, as well as a method of conflict resolution must also keep abreast of developing issues. Became law at the center of media demands, namely the rule of law and sense of justice. On the side of the rule of law, justice demands that can be placed exactly over the other side into a sense of justice also demands that require judges to give a personal touch (case by case) in the face of any problems encountered in the trial. Keywords: rule of law, justice and progressive law.
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Anthony, Gordon. "EC Law, UK Public Law and The Human Rights Act 1998: A New Integrative Dynamic?" Cambridge Yearbook of European Legal Studies 2 (1999): 417–37. http://dx.doi.org/10.5235/152888712802815707.
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The process of European legal integration has long been understood to engage the workings of domestic legal orders, EC law and, to a lesser extent, the law of the ECHR. In general terms, the relationship between these bodies of law has been characterised as involving the direct and indirect interchange of principle and practice across jurisdictions. An example of direct interchange is found in the EC law requirement that national courts give effect to rules emanating from the EC legal order in all cases raising EC law issues. The indirect form occurs in disputes which do not raise EC law issues but which see national courts voluntarily borrow from their experience within the EC legal order by way of developing the domestic legal system. Likewise, national courts and the European Court of Justice have relied upon the law of the ECHR, a “foreign” body of rules, in developing their respective legal orders.
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Anthony, Gordon. "EC Law, UK Public Law and The Human Rights Act 1998: A New Integrative Dynamic?" Cambridge Yearbook of European Legal Studies 2 (1999): 417–37. http://dx.doi.org/10.1017/s1528887000003451.
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The process of European legal integration has long been understood to engage the workings of domestic legal orders, EC law and, to a lesser extent, the law of the ECHR. In general terms, the relationship between these bodies of law has been characterised as involving the direct and indirect interchange of principle and practice across jurisdictions. An example of direct interchange is found in the EC law requirement that national courts give effect to rules emanating from the EC legal order in all cases raising EC law issues. The indirect form occurs in disputes which do not raise EC law issues but which see national courts voluntarily borrow from their experience within the EC legal order by way of developing the domestic legal system. Likewise, national courts and the European Court of Justice have relied upon the law of the ECHR, a “foreign” body of rules, in developing their respective legal orders.
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Kharytonov, Evgen, and Olena Kharytonova. "Human rights, civil society, private law: correlation problems." Ius Humani. Law Journal 8 (December 19, 2019): 225–44. http://dx.doi.org/10.31207/ih.v8i0.222.
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The category of “human rights and freedoms”, the problems of protection and protection of such rights have repeatedly been the subject of research, but the question of their correlation with concepts such as “civil society”, “private law” has not been studied yet. This circumstance determines the expediency of a special study of this issue. Several methodological techniques have been used in the process of exploring issues related to this article. The main ones were civilization and conceptual methods. With the help of the “civilization” method, we explored “law” as a category inseparably related to civilization. The “concept” method helps to consider law in general, and private law as a concept (conceptus from the Latin: thought, representation, concept), that is, as a set of verbal expressions of a social phenomenon denoted by a particular term. In the conclusion, the authors state that there is a conflict in the field of human rights and the conflict of interests of members of civil society, the state resorts to a positive legal regulation of human behavior (taking into account the national mentality and influencing the formation and transformation of justice in the desired direction). The study reveals that there are no grounds for excessive concern about the “infinity” of human rights. This boundary is usually defined naturally, in the face of the rights and interests of other members of civil society.
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Almqvist, Jessica. "A HUMAN RIGHTS CRITIQUE OF EUROPEAN JUDICIAL REVIEW: COUNTER-TERRORISM SANCTIONS." International and Comparative Law Quarterly 57, no. 2 (April 2008): 303–31. http://dx.doi.org/10.1017/s0020589308000195.
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AbstractLitigation involving individuals and entities whose financial assets have been frozen and whose names have been blacklisted in the fight against terrorism is on the rise around the world. However, the global ‘securitization’ of terrorism has rendered court performance of judicial review and the provision of remedies in these cases more difficult. What the main judicial challenges are, the need to overcome them, and how they can be overcome, are identified in this article as questions of central concern in an effort to secure the human right of effective access to justice for persons subjected to counter-terrorism sanctions. Special attention is given to the specific challenges facing the Court of Justice in the European Communities, the manner in which it has responded, and outstanding issues.
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Antonopoulos, Irene. "The day after: Protecting the human rights affected by environmental challenges after the EU accession to the European Convention on Human Rights." Environmental Law Review 20, no. 4 (December 2018): 213–24. http://dx.doi.org/10.1177/1461452918799296.
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This article explores whether a potential accession of the European Union to the European Convention on Human Rights, offers a more effective method of protection for ‘environmental human rights’: those rights whose enjoyment is allegedly affected by environmental challenges. The European Court of Human Rights has decided on claims of alleged violations of human rights by both environmental degradation and the enforcement of environmental protection policies implementing EU environmental law. On the other hand, the capacity of the Court of Justice of the European Union to decide on human rights issues has been repeatedly challenged, while the inability of the Court to protect procedural (environmental) rights when it came to NGOs, allows for challenging the capacity of the Court of Justice of the European Union to protect substantive (environmental) rights as well. Will an accession mean that applicants will be able to bring claims for alleged violations, caused by the enforcement of EU generated environmental protection policies, against the EU Institutions rather than the enforcing State? This article follows the relevant developments towards the accession, and consequently seeks to determine how the day after the accession will look for the protection of human rights affected by environmental challenges.
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Razmetaeva, Yulia. "Autonomy, (No)human Rights, Illusions, and Expectations in the Digital Age." Philosophy of law and general theory of law, no. 2 (December 22, 2021): 92–101. http://dx.doi.org/10.21564/2707-7039.2.242835.
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The article focuses on issues of autonomy, simplification and polarization, illusions and expectations in the digital age. The analysis is based on two trends: (1) frustration and loss of illusions about fundamental values such as human rights, justice and the rule of law; (2) immersion in artificial, illusory worlds that create a misperception of reality in private and public spheres of life (this is especially evident in the digital space). The article highlights how both trends are associated with deep injustice and blatant «non-law», as well as almost invisible attacks on justice and the disappearance of law.
It is established that the uncertainty and unpredictability of the consequences of many actions in the digital environment, as well as the use of digital tools are rather subtle attacks on autonomy and justice. At the same time, autonomy is threatened by direct and indirect influence of various actors, which leads to simplification of perception, polarization of thoughts, radicalization of views and actions of individuals and groups.
The degree of freedom that individuals have today could be difficult to determine or they would have a misconception about how free they are in their actions, thoughts, and choices. Falsely secure illusory worlds, digital identity, information asymmetry, significant imbalance between the interests of the main beneficiaries of digital technologies and their consumers – all this undermines the human capacity for free judgment and free choice and strengthens disbelief in law, including its key elements, especially, human rights.
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Nmehielle, Vincent O. "‘Saddling’ the New African Regional Human Rights Court with International Criminal Jurisdiction: Innovative, Obstructive, Expedient?" African Journal of Legal Studies 7, no. 1 (May 7, 2014): 7–42. http://dx.doi.org/10.1163/17087384-12342039.
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Abstract This article examines the recent initiative of the African Union (au) to amend the Protocol on the Statute of the African Court of Justice and Human Rights that initially merged the African Court of Human Peoples’ Rights with the African Court of Justice of the African Union and to now create a new and holistic regional court – the African Court of Justice and Human and Peoples’ Rights – and endow it with jurisdiction for international crimes. The article principally interrogates three issues: (1) the legality and novelty of the au initiative, (2) the question whether the plan is in any way obstructive or a distraction, and (3) whether the initiative is actually necessary when considered against the wider scheme of effective functioning of the au and its human rights protection regimes. The article finds that while the au’s desire to establish an international crimes chamber within its human rights court may have largely been influenced by the politicisation of the international criminal justice system and its concerns about the icc’s nearly exclusive focus on Africa, there is nothing in international law that prevents the au from embarking on such initiative. However, it is essential for the au to conduct a necessity test, taking a number of issues into account such as adequate resources, credible legal and political commitment, and the opportunity available to member states in the complementarity principle of the Rome Statute of the icc. It is submitted that since Africa, as a regional block, has accepted the Rome Statute regime in large numbers, the au needs to engage with that system in ways that give African states parties credible ownership of justice, as addressing atrocity crimes would largely be achieved within the domestic systems of member states.
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Iksanov, I. S. "The Role of the European Court of Justice in the Protection of Human Rights and Freedoms." Humanities and Social Sciences. Bulletin of the Financial University 9, no. 3 (December 4, 2019): 73–76. http://dx.doi.org/10.26794/2226-7867-2019-9-3-73-76.
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The article discusses the role of the European Court of Justice, the specifics of its activities, and its goals. The author also touches upon the historical aspect of the development of the European Court. According to the author, the European Court of Justice has had a beneficial effect on the development of the rights granted by Union citizenship. The actions of the European Court of Justice have created new ground for persons with Union citizenship, increasing access to social benefits beyond the rights of economic migrants, for all those who exercise their European rights. The European Court of Justice sought to allow students to travel for their education, looking for new ways to ensure their free movement and learning with funding in the event of unforeseen events. It is essential that the court focuses on three core values so that citizenship does not become a limitation: nondiscrimination, the right to freedom of movement and the right to family life. The European court of human rights is an international judicial body; its jurisdiction extends to all member States of the Union. The main thing for the European Court of Justice is to ensure compliance with and enforcement of the Convention by the States parties. Also, when considering cases, the Court can point to gaps in legislation and issues concerning law enforcement practice, positively influencing law enforcement policy and legal proceedings, and, as a result, contribute to the improvement of the law enforcement system. This article reflects the activities of the European Court of Justice aimed at identifying the problematic aspects of the legislation of the European Union.
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Svaček, Ondřej. "Serious Human Rights Violations – Eclipse or Mere Twilight of State Immunity?" International and Comparative Law Review 11, no. 2 (December 1, 2011): 63–78. http://dx.doi.org/10.1515/iclr-2016-0104.
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Abstract Presented article contributes to the extensive discussion over the mutual relationship between serious human rights violations (violation of ius cogens) and the law of state immunity. Th e structure of article derives from the argumentation presented by Germany and Italy in current dispute before the International Court of Justice. Author focuses his attention on delimitation of existing international legal framework and particularly on assessment of friction areas in German and Italian submissions. Three separate issues are analyzed: temporal, territorial and material.
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Ratner, Steven R. "IS INTERNATIONAL LAW IMPARTIAL?" Legal Theory 11, no. 1 (March 2005): 39–74. http://dx.doi.org/10.1017/s1352325205050032.
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The last decade has seen a resurgence of interest among philosophers in the core questions of ethics and justice on the international plane. Issues once discussed primarily in the response to the major global debates of the 1960s and 1970s—the Vietnam War and the North-South economic imbalance—have returned to the domain of philosophers. This engagement has taken place in two distinct but related debates. First, philosophers have devoted attention to the ethical significance of nationality and patriotism, asking whether an impartial morality permits disparate treatment of an individual's co-nationals. Second, scholars have revisited issues of international justice in great detail, including works on human rights as well as just war theory. These works ask, as Brian Barry put it, “given a world that is made up of states, what is the morally permissible range of diversity among them?” One impetus for renewed work on these ideas was the publication of John Rawls's The Law of Peoples.
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LÓPEZ LATORRE, Andrés Felipe. "In Defence of Direct Obligations for Businesses Under International Human Rights Law." Business and Human Rights Journal 5, no. 1 (January 2020): 56–83. http://dx.doi.org/10.1017/bhj.2019.27.
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AbstractThis article presents three arguments on why businesses have direct obligations under existing international law. Nevertheless, in the present state of international law, the obligations of businesses are limited and wholly dependent on the state’s further action of implementation and enforcement. To reach this conclusion, the article asserts that businesses have partial legal personality in international law; that legal obligations and the enforcement model must be distinguished as two separate issues; and that human rights are requirements of justice that emanate from the dignity of each human person to any social actor, including businesses and other non-state actors. The article attempts to contribute to the debate about a binding instrument on business and human rights and presents an alternative understanding of international law that can assist domestic tribunals in applying international human rights standards to businesses as they carry out activities in their jurisdictions.
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PAPYSHEVA, ELENA. "ARTIFICIAL INTELLIGENCE AND CRIMINAL JUSTICE PRINCIPLES: COMPATIBILITY ISSUES." Gaps in Russian Legislation 15, no. 5 (September 22, 2022): 430–36. http://dx.doi.org/10.33693/2072-3164-2022-15-5-430-436.
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The penetration of artificial intelligence technologies (hereinafter referred to as AI) into criminal justice naturally entails the modernization of legal systems, with the introduction of "smart courts", "digital prosecutors", as, for example, in China, and the increasing decision-making autonomy of AI. The aim of the study is to study the impact of AI on the fundamental principles of the criminal process. Should the use of AI be “tailored” to existing principles and norms, or should existing principles and norms be modified to accommodate AI? Based on the analysis of the principles with their development in specific norms and situations, it was concluded that the properties of AI that cause negative consequences of its use in criminal proceedings (bias, closeness (opacity), pose potential threats to the implementation of the principles of the criminal process. AI affects the basic constitutional principles and the branch principles of criminal proceedings interconnected with them.The use of AI poses a certain threat for them, entailing a violation of the constitutional rights of a person and a citizen. The purpose of this article is to draw the attention of the scientific community, the legislator, and law enforcers to the problem of dissonance between AI and the principles of criminal justice that has arisen and is growing with the development of AI technologies. In order to avoid negative factors in the use of AI, it is necessary to establish a legal regulatory framework for its use in criminal proceedings, due to the socio-technical nature of AI. Given the priority of human and civil rights, legal norms must be transformed in such a way as to ensure proper protection of the rights of citizens.
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Maslennikova, L. N., and A. A. Sobenin. "On the Outcomes of the Scientific and Practical Conference “Ensuring Access to Justice in Criminal Proceedings in the Context of Digital Technologies Development”." Actual Problems of Russian Law 16, no. 12 (September 15, 2021): 221–31. http://dx.doi.org/10.17803/1994-1471.2021.133.12.221-231.
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The paper provides an overview of the scientific and practical conference “Ensuring Access to Justice in Criminal Proceedings in the Context of Digital Technologies Development” held on June 22, 2021 in a mixed format. It was organized by the Office of the Commissioner for Human Rights in the Russian Federation and the Scientific and Educational Center for Human Rights of Kutafin Moscow State Law University (MSAL). The conference was devoted to topical issues of ensuring access to justice, the possibilities of digitalization to overcome restrictions in the work of law enforcement agencies and the judicial system, generalizing the experience of foreign states and the Russian Federation in ensuring the rights of participants in criminal proceedings. The conference was organized within the framework of the project of the Russian Foundation for Basic Research No. 18-29-16018 “The concept of building criminal proceedings that provide access to justice in the context of the development of digital technologies.”
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James, Annabelle. "Miscarriages of Justice in the 21st Century." Journal of Criminal Law 66, no. 4 (August 2002): 326–37. http://dx.doi.org/10.1177/002201830206600404.
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This article looks at the extent to which the author feels that the criminal justice process of the 21st century is equipped to deal with miscarriages of justice. Starting with an outline description of the changes to the law and the CCRC itself followed by a brief evaluation of the CCRC's work to date, the article then deals with human rights issues, assessing the potential impact of the Human Rights Act 1998 and the corresponding duties incumbent on public authorities such as the CCRC and the Court of Appeal, and addresses the extent to which the identifying and processing of miscarriages of justice will change as a result. The article concludes with the view that whilst there has, on paper at least, been a change for the better, in reality little has changed.
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Kachalova, O. V. "Ensuring Human Rights in Criminal Proceedings in the Context of a Pandemic." Rossijskoe pravosudie 11 (October 26, 2020): 99–104. http://dx.doi.org/10.37399/issn2072-909x.2020.11.99-104.
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The coronavirus pandemic has put a number of legal issues on the agenda of the world community – how to ensure the rule of law in the face of the need to save the lives and health of many people, how to achieve a reasonable balance in the ratio of various human rights in a pandemic situation, how to determine the criteria for proportionality of restrictions on essential human rights. The criminal justice authorities and courts have a serious task to ensure human rights, achieve the effectiveness of criminal proceedings and access to justice in the context of the coronavirus pandemic, on the one hand, and take the necessary measures to ensure the safety of persons involved in criminal proceedings, including their own, from the threat of COVID-19 infection, on the other. Measures that restrict human rights in the context of a pandemic must be implemented in accordance with the principles of the rule of law, respect for human rights, the rule of law, legal certainty and proportionality. Proportionality can be established by determining a reasonable balance of private and public interests in each particular situation, through an assessment of the affected interests in terms of their significance. In General terms, the rights and freedoms that provide the most significant benefits are given priority. The criteria for determining a reasonable balance between private and public interests and for resolving an emerging conflict of human rights are determined taking into account the immediate circumstances of the case (the epidemiological situation, the state of health of participants in the process, the urgency and significance of the proceedings for participants in criminal proceedings and the interests of justice, the ability to ensure the necessary sanitary and epidemiological requirements). The coronavirus pandemic has put on the agenda the issue of creating a strategy for the transformation of criminal justice institutions in emergency situations, when the normal mode of criminal proceedings is impossible due to objective reasons.
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Rybalkin, Andrii, and Yuliia Nosenko. "Peculiarities of application of the practice of the European Court of Human Rights in the justice in Ukraine." ScienceRise: Juridical Science, no. 2(16) (June 30, 2021): 14–17. http://dx.doi.org/10.15587/2523-4153.2021.235130.
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The scientific article examines the activities of the European Court of Human Rights and identifies the significance of the relevant case law of the European Court for the case law of Ukraine. It is noted, that one of the issues, studied within the topic, is the sources and legal framework, which is especially relevant in the adoption of the Law of Ukraine «On Enforcement of Decisions and Application of the Case Law of the European Court of Human Rights», according to which courts use the Agreement and case law as a legal source in cases. The activity of the European Court of Human Rights, the role and impact on the judicial system of Ukraine are analyzed, the relevant examples are given. It is concluded, that the implementation of international human rights law into Ukrainian law is a complex procedure that requires special doctrinal consideration, as today Ukrainian citizens are among the most active complainants to the European Court of Human Rights, which indicates a fairly high insecurity by national legal mechanisms. In order to increase the credibility of the judiciary, courts should take into account the European experience, decisions and observations of the Court in their work. The Court's case law is said to play an important role in the judicial reform process as it approaches the European legal framework for human rights standards in Europe. The current law cannot fully protect a person or build justice if it is not applied properly. Based on existing ECtHR rulings, judges can accurately understand the rule of law and apply it properly, which will help improve human rights, accurate understanding and implementation of the Agreement on Ukraine. Based on the study, it was concluded, that it is necessary and appropriate to implement the decisions of the European Court of Human Rights, as in this way it is possible to ensure the protection and defense of human and civil rights and freedoms
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Chula, Liza. "East African Court of Justice and Human Rights Jurisdiction: Drawing the Line." Strathmore Law Review 3, no. 1 (June 1, 2018): 1–23. http://dx.doi.org/10.52907/slr.v3i1.100.
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Human rights in Africa have gradually gained a place of recognition few could have foreseen only a decade ago. With the promotion and protection of human rights entrenched deep in the African Charter on Human and Peoples’ Rights, African states have a duty to uphold this principle in the larger goal of regional economic integration. The East African Court of Justice (EACJ), a regional court, has thus assumed the role of a watchdog in breathing life into these provisions, safeguarding the rule of law and ensuring everyone plays by the rules. It is unfortunate that these watchdogs can then lack the most important tool in steering the ship – jurisdiction. This paper, through a detailed analysis of literature review, tackles the pertinent question of whether the court has jurisdiction to handle human rights cases and arrives at the conclusion that an express mandate is lacking, but there is a somewhat implied mandate. Nonetheless, a clear articulation of the EACJ’s mandate is necessary to enable it to address issues effectively and efficiently.
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VERMEER-KÜNZLI, ANNEMARIEKE. "The Subject Matters: The ICJ and Human Rights, Rights of Shareholders, and the Diallo Case." Leiden Journal of International Law 24, no. 3 (August 5, 2011): 607–25. http://dx.doi.org/10.1017/s0922156511000276.
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AbstractOn 30 November 2010, the International Court of Justice issued its decision in the merits phase of the Ahmadou Sadio Diallo case. This decision turned on the questions of whether the DRC had violated Mr Diallo's human rights and his rights as a shareholder and manager in two corporations he owned in the DRC. This paper analyses the decision of the Court in the light of the choices it made and the methodology it applied, and demonstrates that both issues raise fundamental questions. The Court's decision on Mr Diallo's human rights is often ambitious to the detriment of clarity, whereas the part of the judgment dealing with corporate rights does not seem to move beyond its 1970 predecessor in Barcelona Traction. While understandable, this is also regrettable and the consequences for individuals doing business and/or residing in foreign countries may be substantial.
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Wahyudi, Slamet Tri. "PROBLEMATIKA PENERAPAN PIDANA MATI DALAM KONTEKS PENEGAKAN HUKUM DI INDONESIA." Jurnal Hukum dan Peradilan 1, no. 2 (July 31, 2012): 207. http://dx.doi.org/10.25216/jhp.1.2.2012.207-234.
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Law enforcement without direction and not based on the three pillars of the justice of law, legal certainty and the benefits to society can break the law anyway even violate human rights. As one of the policies of the government that are not considered mencerminakan the values of justice and disturbing for the people, the government policy that acts of omission or delay in the application of the death penalty. This research is a normative legal normative juridical approach. The data collected is secondary data were analyzed using qualitative methods juridical analysis. Based on these results it can be concluded that in the application of the death penalty there are serious legal issues, this is due to government policies that commit omission or delay in the execution of the death penalty is a violation of human rights as stipulated in Article 28 of the 1945 Constitution. Keywords: Death penalty, Justice, Legal Certainty, Law
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Dennis, Michael J. "Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation." American Journal of International Law 99, no. 1 (January 2005): 119–41. http://dx.doi.org/10.2307/3246094.
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Are obligations assumed by states under international human rights treaties applicable extraterritorially during periods of armed conflict and military occupation? This was one of the issues addressed by the International Court of Justice (ICJ) in its advisory opinion Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. The Court indicated that the obligations assumed by Israel under the International Covenants on Civil and Political Rights (ICCPR) and on Economic, Social and Cultural Rights (ICESC), and the Convention on the Rights of the Child (CROC) applied in the occupied territories and that the construction of the security barrier constituted “breaches” by Israel of various of its obligations under these instruments.
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Smith-Carrier, Tracy, and Kathleen Manion. "Bringing It All Together: Leveraging Social Movements and the Courts to Advance Substantive Human Rights and Climate Justice." Human Rights Review 23, no. 4 (December 2022): 551–74. http://dx.doi.org/10.1007/s12142-022-00674-0.
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AbstractAlthough significant literature and jurisprudence has amassed on rights-based climate litigation over recent years, less research and case law has emerged on poverty-related court cases and the fulfilment of economic, social, and cultural rights (ESCR) in Canada. Fewer still are studies exploring the interlinkages between these areas of inquiry. The purpose of this paper is to explore, using Canada as a case study, rights-based developments in climate litigation cases and how these could impact the innovative advancement of ESCR (e.g. to food, housing and water). Typically, issues of justiciability and standing emerge, impeding the realization of such rights. Given the grave threats we now face, climate cases and social movements must be brought together to better hold state actors accountable for their rights obligations. We implore the legal community to explore ways to traverse juridical obstacles to realize the interdependencies of human rights and protect the planet from calamitous climate change.
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Richardson, Henry J. "The Limits of Human Rights Limits." American Journal of International Law 115, no. 1 (January 2021): 154–70. http://dx.doi.org/10.1017/ajil.2020.109.
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Rescuing Human Rights: A Radically Moderate Approach (Rescuing) was published shortly before the outbreak in 2020 of the novel coronavirus and its myriad human rights and class issues regarding equality, discrimination, health, and labor rights of people of color. This was also prior to the concurrent public murder of George Floyd as an unarmed Black man by the Minneapolis police in late May 2020, and the resulting continuing Black Lives Matter massive national and international movement against the deaths of Floyd and others and the history of systemic American racism, including police shooting deaths, discrimination, and brutality against African Americans, particularly unarmed Black men. Such comprehensive street protests have not been seen in America since 1968. They represent, inter alia, the cover of disguises of national racism being publicly stripped away, and the national confrontation with irrefutable evidence of a wide spectrum of systemic rights violations and the deficits of American law and government to ensure African Americans’ basic rights. Further, Rescuing was published before it became fully apparent that the federal government's responses to Black Lives Matter, particularly the executive branch, would fan the racial conflicts of national mourning and demands for new justice narratives, rather than healing and unifying for American citizens as a whole, even as these protests were the most diverse in recent memory.
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Titko, Ivan, and Inna Polkhovska. "Reproductive human rights: General legal support and implementation in the field of criminal justice." SHS Web of Conferences 85 (2020): 01002. http://dx.doi.org/10.1051/shsconf/20208501002.
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The unsatisfactory demographic situation in European countries, in particular the reduction of fertility, actualizes the issue of reproductive rights. Reproductive rights include the human ability to make free and independent decisions about their reproductive health, including the birth of children, the time and intervals between their birth, the right to decide on procreation without discrimination, threats and violence, as well as recognition of the right to receive relevant information. The article is devoted to the analysis of some problematic general theoretic, criminal law and criminal procedure aspects in the field of reproductive rights. In particular, issues of assisted reproductive technologies application, their regulation at the international and national levels, as well as in the practice of the European Court of Human Rights (hereinafter – ECHR) are considered in the article. Special attention is paid to the specificity of the legal and practical factors of surrogacy.
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Tur, Olga T., Marta B. Kravchyk, Iryna Yu Nastasiak, Myroslava M. Sirant, and Nataliya V. Stetsyuk. "Practice of applying international principles in private law relations." Journal of the National Academy of Legal Sciences of Ukraine 28, no. 4 (December 23, 2021): 223–31. http://dx.doi.org/10.37635/jnalsu.28(4).2021.223-231.
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National and international courts are increasingly turning to generally recognised international legal principles to regulate private law relations. This is necessitated, in particular, by the fact that the issues and disputes that modern participants in private law relations address to the courts are becoming more widespread. Thus, the practice of international justice and justice in Ukraine demonstrates that such international principles as the principle of justice, equality, non-discrimination, evolutionary interpretation, proportionality, legal certainty, and the rule of law are increasingly used in dispute resolution. This study investigated the application of international principles in private law relations. Based on the general legal research methods, the nature of international legal principles was analysed, the study considered their application in the above-mentioned Ukrainian court cases to the European Court of Human Rights, as well as the Constitutional and Anti-Corruption Courts of Ukraine. The study investigated the judicial practice of the European Court of Human Rights, whose decisions raise the issue of violation of rights and fundamental freedoms stipulated in the Convention for the Protection of Human Rights and Fundamental Freedoms and non-compliance with basic international legal principles, as well as highlighted the main trends of these disputes. Based on the results of the analysis, the study identified an insufficient level of the content specification regarding the principle of the rule of law and its features in the current legislation of Ukraine, which must be properly observed by both state authorities and citizens of Ukraine. Based on the conducted research, the authors formulated their scientific positions and conclusions aimed at improving the system of principles of private law relations
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Sadat, Leila. "The Seventh Annual Chautauqua Declaration." International Legal Materials 53, no. 4 (August 2014): 739–43. http://dx.doi.org/10.5305/intelegamate.53.4.0739.
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From August 25 to 27, 2013, the Seventh Annual International Humanitarian Law Dialogs were held at the Chautauqua Institution in Lake Chautauqua, New York. Primarily organized by the Robert H. Jackson Center and cosponsored by other institutions and organizations including the American Society of International Law, the Dialogs bring together international criminal prosecutors, practitioners of international justice, scholars, NGO leaders, human rights activists, students, and members of the public to discuss pressing issues of international peace and justice.
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Destrooper, Tine. "Neglecting Social and Economic Rights Violations in Transitional Justice: Long-Term Effects on Accountability: Empirical Findings from the Extraordinary Chambers in the Courts of Cambodia." Journal of Current Southeast Asian Affairs 37, no. 2 (August 2018): 95–124. http://dx.doi.org/10.1177/186810341803700204.
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This article builds on theories about the expressive function of law and uses Structural Topic Modelling to examine how the prioritisation of civil and political rights (CPR) issues by the Extraordinary Chambers in the Courts of Cambodia (ECCC) has affected the agendas of Cambodian human rights NGOs with an international profile. It asks whether these NGOs’ focus on CPR issues can be traced back to the near-exclusive focus on CPR issues by the court, and whether this has implications for the creation of a “thick” kind of human rights accountability. It argues that, considering the nature of the Khmer Rouge's genocidal policy, it would have been within the mandate and capacity of the court to pay more attention to actions that also constituted violations of economic, social, and cultural rights (ESCR). The fact that the court did not do this and instead almost completely obscured ESCR rhetorically has triggered a similar blind spot for ESCR issues on the part of human rights NGOs, which could have otherwise played an important role in creating a culture of accountability around this category of human rights. Does this mean that violators of ESCR are more likely to escape prosecution going forward?
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Perry Jr, H. W., and Patrick Keyzer. "Human Rights Issues in Constitutional Courts: Why Amici Curiae are Important in the U.S., and What Australia Can Learn from the U.S. Experience." Law in Context. A Socio-legal Journal 37, no. 1 (November 30, 2020): 66–98. http://dx.doi.org/10.26826/law-in-context.v37i1.127.
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Unlike thirty years ago, human rights issues are now routinely raised in Australian constitutional cases. In this article, the authors examine the role of the amicus curiae in the United States Supreme Court and consider how far and to what extent the amicus curiae device has been accepted in decisions of the High Court of Australia. The authors analyse the High Court’s treatment of applications for admissions as amici curiae, noting the divergent approaches taken by Chief Justice Brennan and Justice Kirby, and drawing attention to the practical difficulties faced by applicants who seek admission to make oral submissions. Human rights cases raise questions of minority rights that should not be adjudicated without input from those minorities. The authors recommend that Australia adopt the U.S. approach, to admit written submissions as a matter of course, and to allow applicants to make oral submissions when they have a serious and arguable point to make. This approach is consistent with the Court’s significant role of establishing legal policy norms for the entire nation, including for the identity groups that increasingly occupy the Court’s attention. The focus here is on Australia, but the argument for the role of amici is more general and might well apply to high courts elsewhere.
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Rosas, Allan. "Balancing Fundamental Rights in EU Law." Cambridge Yearbook of European Legal Studies 16 (2014): 347–60. http://dx.doi.org/10.1017/s1528887000002664.
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AbstractIt appears more and more often that cases brought before the European Court of Justice raise issues relating to two or more fundamental rights and the relation between them. In such situations, it is often necessary to establish a ‘balance’ between the fundamental rights concerned. In some cases, one of the rights involved is not a fundamental right in the strict sense but, for instance, an economic freedom (such as the free movement of goods) recognised under the basic EU Treaties. Another configuration may be a situation where, for instance, two of the fundamental rights which are at issue are to be found in the EU Charter of Fundamental Rights but only one of them appears in the European Convention on Human Rights. In such situations, one wonders what would be the relevance of Article 52(3) of the Charter of Fundamental Rights, which establishes a direct link between the Charter and the European Convention. The present contribution will look at the question of balancing of EU fundamental rights in general and also at more specific problems arising in this context, such as the two problems identified above.
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Tolstykh, V. L. "Сovid-19 and International Law: General Issues." Moscow Journal of International Law, no. 3 (October 9, 2021): 45–62. http://dx.doi.org/10.24833/08690049-2021-3-45-62.
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INTRODUCTION. In December 2019, an outbreak of coronavirus infection (SARS-CoV-2) transmitted by airborne droplets was recorded in Wuhan, China. In mid-January, the virus was detected in Thailand and Japan; in March, the center of the pandemic moved to Europe; in early April, the United States came out on top in terms of the number of infections. To combat the virus, many states have introduced emergency measures, including lockdowns, social distance requirements, mass testing, etc. The pandemic has affected all spheres of public life, including international relations and international law.MATERIALS AND METHODS. The article analyzes the response to the pandemic on the part of states, organizations and the doctrine of international law; examines the international legal aspects of the pandemic: application of the International Health Regulations 2005, possible responsibility of China and other states, impact of the pandemic on human rights. The problems of legal regulation in connection with the pandemic are defined and the ways of their solution are determined. The subject of analysis is the materials of foreign legal press, first of all, posts and articles on the Internet. In addition to the data of international law, scientific categories of philosophy, economics and political science are used.RESEARCH RESULTS. Major UN bodies have reacted to the pandemic with general statements. WHO positioned itself as an international center for the fight against the virus and made recommendations that, however, were not implemented by states which adopted more restrictive measures. The main document that guided WHO is the International Health Regulations 2005 (IHR). Some states and the media accused China of a belated reaction and withholding information. As a result, the doctrine has discussed the issue of bringing a claim against China to the International Court of Justice. The legal basis for this claim could be the provisions of the IHR, the WHO Constitution and a number of duediligence obligations. The jurisdictional basis for applying to the ICJ could be Art. 75 of the WHO Constitution, and to an arbitration Art. 56 IHR. In response to the pandemic, many states have limited human rights; references have been made to the possibility of a temporary derogation from human rights obligations in an emergency and the possibility of limiting human rights in the interests of national security, health and the protection of the rights of others.DISCUSSION AND CONCLUSIONS. The foreign doctrine notes an nsufficient response frominternational organizations and makes proposals aimed at expanding the powers of the UN Security Council in combating the pandemic and at reforming the WHO. In addition, there are shortcomings of the IHR that hinder their effective use. The possibility of holding China accountable is questioned: there is nsufficient evidence of the violation; the threshold for breach of duediligence obligations is very high; China is unlikely to agree to participate in the lawsuit against it. Nevertheless, several lessons can be learned for the law of responsibility (the possibility of deviating from the principle of full compensation, etc.).The procedure for derogating from human rights obligations during a pandemic also needs clarification. In general, the international legal doctrine coped with the task of understanding of the pandemic phenomenon: it systematized and qualified the facts, discovered and formulated legal problems, both private and public, and suggested means to solve them. Few questioned the advisability of such a harsh global reaction and formulated a radical criticism; instead, the shortcomings of individual measures were noted and proposals were made to improve their effectiveness.