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Localising human rights law : a case-study of civil society interpretation of rights in Scotland

Localising human rights law : a case-study of civil society interpretation of rights in Scotland

We explore how participants in the mapping engaged with the meaning of the rights to respect for private/family life, freedom from inhuman/degrading treatment, and the right to life by examining what they say about, and the kinds of circumstances that they link to, these particular standards. Participative baseline mapping processes provide interesting material for analysing a wide range of questions. For example, how often participants engage with the process without using the term human rights at all or without referencing human rights in a legal way; which category of participants are most or least likely to invoke rights (including in a legal way); and whether the nature of the language used by participants impacts upon the likelihood of their contributions being picked up by the NHRI. Presently, however, we intentionally adopt a different focus in order to learn about the dynamics of participants’ interaction with law in this unique context. We aim to better understand the implications thereof for the phenomenon of ownership of the language of human rights law.
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On coming to terms: how European human rights law imagines the human condition

On coming to terms: how European human rights law imagines the human condition

Within the terms of European human rights law, the denial of recognition need not be deliberate in this regard. In Ms Konovalova’s case, for example, the lack of recognition derived primarily from the carelessness and thoughtlessness of the hospital that handled her labour. This point – that there does not need to be any evidence of intention to find a denial of recognition – was illustrated more clearly still in Price v UK (2001). Ms Price was four-limb deficient and also suffered from kidney problems. She had been committed to prison for contempt of court, following her refusal to answer questions about her financial situation during civil proceedings. The sentencing judge ordered that she be detained for seven days but took no steps to see whether there were facilities available which could accommodate the level of her disability. Ms Price was subsequently detained in inappropriate conditions, in which she was “dangerously cold, [risked] developing sores because her bed [was] too hard or unreachable, and [was] unable to go to the toilet or keep clean without the greatest of difficulty”. 28 The Court concluded that
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Homosexual Rights and the Non-Western World: A Postcolonial Reading of Homosexual Rights in International Human Rights Law

Homosexual Rights and the Non-Western World: A Postcolonial Reading of Homosexual Rights in International Human Rights Law

Westernising role of international human rights law, especially with regard to its protection and recognition of homosexual rights, which has given rise to so much [r]

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Human Rights and Environmental Wrongs: Achieving Environmental Justice through Human Rights Law

Human Rights and Environmental Wrongs: Achieving Environmental Justice through Human Rights Law

More practically useful perhaps than the normative weight of human rights law may be the availability of human rights tribunals, courts and committees, which could be utilised by individuals and communities who allege their human rights have been violated (Posner 2007: 3). For example, an individual may bring a complaint to the Human Rights Committee where there is an alleged violation of a right contained in the ICCPR (First Optional Protocol to the ICCPR 1976: art 1). Regional enforcement mechanisms may also provide an avenue for redressing environmental injustice. Several cases have already been successful before regional human rights tribunals, establishing that environmental degradation such as pollution or deforestation can amount to a violation of human rights. For example, in Lopez‐Ostra vs Spain (1994), the European Court of Human Rights held that pollution caused by a waste treatment facility located near the complainants’ home violated their right to privacy and family life (guaranteed under article 8 of the European Convention on Human Rights (1950)) by limiting their ability to enjoy their home. This was found to be the case even though the court did not find a violation of the right to health in the circumstances. In the Awas Tingni case before the Inter‐American Court of Human Rights (2001), the Mayagna Awas (Sumo) Tingni community of Nicaragua argued that the Nicaraguan government had failed to protect its property rights over traditional lands and natural resources, which were to be commercially developed. The Court upheld the claim and agreed that the Community’s property rights under the American Convention of Human Rights (1969) had been violated by the State’s failure to provide an adequate system of indigenous title and protection of indigenous lands. These judicial avenues provide one option for communities or individuals unjustly affected by environmental harm where such harm can be construed as a violation of human rights.
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Human rights law as social control

Human rights law as social control

Consequently, the idea that human rights law can fulfil a social control function is alien to most contemporary debates about human rights. In lay discourse, human rights are usually discussed, either positively or negatively, as a mechanism for enabling individuals to exercise greater agency in their everyday lives and, therefore, as a means to resist forms of social control. Similarly, in scholarly or expert discourse, human rights are frequently considered as a framework through which individuals maximize their sovereignty (see, for example, Madsen at al., 2013; Baxi, 2002). In essence, human rights law is commonly understood as the means to achieve respect for Ôhuman freedomÕ (C.R. v the United Kingdom, 1995: para. 42) rather than a means to achieve social control. Although social control practices are often considered in terms of how they negatively impact upon human rights Ð for instance, in respect of impairing or violating rights (see, for example, International Council on Human Rights Policy, 2010; Blower et al., 2012) Ð the potential for human rights to instigate or sustain forms of social control over individuals is almost never discussed.
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Appraising the Frontiers and Limits of the Inter American Human Rights System and Its Relevance to International Human Rights Law

Appraising the Frontiers and Limits of the Inter American Human Rights System and Its Relevance to International Human Rights Law

Human rights have been defined in a number of terms. They are those claims made by man for themselves or on behalf of other men, supported by some theory, which concentrates on the humanity of man, on man as a human being and a member of humankind (Dowrick, 1979). Human rights are also those rights which appertain to individuals as human beings and which they expect the society they live or reside in should respect irrespective of their color, race, reli- gion, sex or other distinctions (Umozurike, 2004). Human rights instruments refer to international or regional treaties and conventions for human rights as well as domestic human rights legislation. The world is by geographical conven- ience grouped into regions and sub-regions as the case may be. Taking a clue from the United Nations after the adoption of the Universal Declaration of Hu- man Rights in 1948, most regions of the world made bold efforts to crystallize human rights within their regions for a greater and progressive impact of its widely acknowledged gains. This was so when the United Nations appeared to have gone into slumber over practical steps in the enforcement of international human rights after its conclusion of the Universal Declaration of Human Rights which spirit and letters were merely hortatory and inspirational at the time of its adoption. The world therefore yearned for more stringent and binding interna- tional law of human rights. The European system, inter-American system, and the African system of human rights are among major regional human rights systems with definite human rights frameworks that have contributed in large measures to the present body of international human rights law and practice. Hence, this paper is an evaluation of the inter-American system of human rights with a view to determining its strengths and weaknesses as well as its overall in- put to global human rights.
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LL.M. Program in International Human Rights Law

LL.M. Program in International Human Rights Law

“I decided to go to the best school in international human rights law to get myself equipped with the best tools. My classmates’ experiences and their unique backgrounds related to their respective countries enriched my understanding of international human rights law and the application of foundational rights. I will think deeply beyond positive law by questioning the foundations of human rights while appreciating the values of human rights.”

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Aggression and International Human Rights Law

Aggression and International Human Rights Law

Admittedly, these cases all arise in situations of non-international armed conflict where the issue of aggression does not present itself, at least in the sense of inter- state aggression. As a jurisdictional matter, the European Convention probably does not apply to the conduct of hostilities in an international armed conflict. Although the United Kingdom has been found to be in breach of the European Convention for certain of its actions in Iraq, it has not yet been challenged with respect to loss of life of non-combatants with respect to the illegal 2003 invasion itself. Given the current state of the law, success in an application raising this issue would seem improbable. But the conclusion that the ECtHR may not have jurisdiction over such issues does not mean that fundamental human rights are not breached. The European Court case law dealing with non-international armed conflict very helpfully confirms the point that from a human rights law standpoint it is essential to consider the legality of the resort to force and not just the methods and means that are used.
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Stereotypes and human rights law

Stereotypes and human rights law

Chapter 3, by Lourdes Peroni and Alexandra Timmer, combines a focus on a single forum (the European Court of Human Rights) with a thematic focus on domestic violence cases. Thus, the authors’ starting point is not the intrinsic harm of stereotyping as such, but rather its pernicious role as a facilitator of other human rights violations. Concretely, they discuss gender stereotyping as ‘one of the factors that structurally contribute to domestic violence and ineffective state responses’. The authors find the confirmation of this structural link in international human rights law, in particular in the work of the CEDAW Committee and in the Istanbul Convention. This implies that gender-based violence cannot be tackled without addressing the gender stereotypes in which it is rooted. In that context, it is vital that those combatting gender-based violence avoid reiterating narratives of vulnerability that may reconfirm harmful gender stereotypes. In line with Cusack’s argument (cf Chapter 2), the authors put a lot of emphasis on naming stereotypes. In a careful analysis of the European Court’s domestic violence case law, they identify at least five distinct gender stereotypes, and explain how they work. Like Cusack, they also adopt a constructive approach that shows the way forward. In addition to naming stereotypes, they argue that the Court should contest them. They argue that the Court should stipulate positive state obligations to address the stereotypes that are at the root of domestic violence. In addition, they argue that evidence that state agents gender stereotyped the victim and/or the perpetrator of domestic violence, should lead to a finding of discrimination.
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Human Rights Law and the State Duty to Protect

Human Rights Law and the State Duty to Protect

10. However painful the near-term may be, going forward elements of the business and human rights agenda should become more closely aligned with the world’s overall economic policy agenda than in recent decades. Governments once championing neo-liberal economic doctrines have been reminded starkly that they have duties no other social actor can fulfil, resulting in a recalibration of the balance between market and State. For other countries, the need to deepen their domestic markets will require greater attention to social investments and safety nets, thereby fostering their citizens’ fuller realization of certain economic and social rights. Companies have had to acknowledge that business as usual is not good enough for anybody, including business itself, and that they must better integrate societal concerns into their
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Ethnic Conflict in Fiji and International Human Rights Law

Ethnic Conflict in Fiji and International Human Rights Law

2 Although Rabuka initially claimed he had acted to prevent racial violence and to maintain law and order, 3 both coups instead exacerbated the simmering ethnic confl[r]

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Does International Human Rights Law Make a Difference

Does International Human Rights Law Make a Difference

But in practice this unique combination of attributes-commonality of terms, near universality of formal acceptance, legitimacy of adoption, perceived reflection of inte[r]

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Should International Human Rights Law Trump US Domestic Law?

Should International Human Rights Law Trump US Domestic Law?

The human rights community has fiercely criticized the United States' failure to make international human rights treaties a source of law in the domestic realm.' In this e[r]

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Direct Participation in Hostilities and the Interoperability of the Law of Armed Conflict and Human Rights Law

Direct Participation in Hostilities and the Interoperability of the Law of Armed Conflict and Human Rights Law

The analysis has so far considered the requirements of HRsL in a “normal” con- text. The question arises of how the rules are modified, if at all, by the existence of a situation of emergency or armed conflict. All the treaty bodies, other than the ECHR, provide that the prohibition of arbitrary killing is non-derogable. Prima facie, this means that it applies also in such situations. It is, however, possible that the meaning of “arbitrary” has sufficient flexibility to apply in a different way in such situations. There appears as yet to be no human rights caselaw involving killings arising out of circumstances in which LOAC indisputably applies a status test—in other words, in IACs. There are relevant cases currently pending before the ECtHRs. There is, however, caselaw arising out of situations in which the Interpre- tive Guidance would suggest that targeting by reference to status is legitimate—in other words, the targeting, in every type of NIAC, of a member of an organized armed group exercising a continuous combat function. The author is not aware of any such situation where the State invoked LOAC or the State claimed such a basis for opening fire. On the contrary, States have argued, successfully or otherwise, that the behavior of those targeted justified the resort to potentially lethal force and/or that the force used was proportionate.
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The Growing Importance of Customary International Human Rights Law

The Growing Importance of Customary International Human Rights Law

The original "game plan" of the Founding Fathers of the United Nations international human rights program was, first, to spell out in a non-binding Universal Dec[r]

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The state's right to stay in islam law study in the light of international  human rights law

The state's right to stay in islam law study in the light of international human rights law

It is clear that the protection of man is one of the significant issues in the international law. Moreover, the international community views the Islamic states as illiterate. However, before one thousand and four hundred years, the Islamic Shari'a has confirmed on the protection of the states' aspects (people, government and the region). The matters that raise disputes among the Islamic states are due to the interference of the great states in the Islamic affairs. In this context, Islam looks at the stay of the state through man's right to live, but no to importance of the state to stay, as the important issue is the sustain man's life. In this regard, various verses in the Holly Qor'an stipulate prohibiting killing man and were not concerned about the state as a requirement for man's right to live; man enjoys live whether within or not in a state. In addition, Islam did not require recognizing the state so as to enjoy the right to stay. For these reasons, it is necessary to create an international legal system that protects man's live regardless of the state's behaviors, or whether such behaviors are accepted or not by the dominating states. For that, we would recommend the following:
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Filartiga v. Pena-Irala: Comments on Sources of Human Rights Law and Means of Redress for Violations of Human Rights

Filartiga v. Pena-Irala: Comments on Sources of Human Rights Law and Means of Redress for Violations of Human Rights

The court, once it had indicated its obligation under the United States statute to apply international law in the case before it, found "that an act of torture [r]

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Exploring the Limits of International Human Rights Law

Exploring the Limits of International Human Rights Law

As I discuss below, advocacy groups have recognized that importation of the language of international human rights into domestic legal systems-through direct litigation, domestic [r]

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(Transnational) Corporations and Human Rights: an exploration into the accomodation of capital in international human rights law.

(Transnational) Corporations and Human Rights: an exploration into the accomodation of capital in international human rights law.

It3 was3 only3 several3 decades3 later3 that3 the3 OAS3 adopted3 its3 institutional3 human3 rights3framework.3The3ACHR3was3adopted3in319693and3came3into3force3in31978.3 Costa3Rica3was3the3only3state3to3immediately3ratify3the3ACHR,3and3the3absence3of3 four3 states3 (Argentina,3 USA,3 Brazil,3 Mexico)3 tainted3 its3 initial3 ‘success’3 (Buergenthal,31971:3121).3Former3IACtHR3judge3Thomas3Buergenthal3claims3the3 abstention3of3these3four3states3was3in3part3due3to3the3overHcomprehensiveness3of3 the3Convention.3He3suggests3that3the3drafters3of3the3Convention3were3unrealistic3 about3 the3 governmental3 attitudes3 regarding3 international3 human3 rights3 protections3(ibid).3What3this3lack3of3support3indicates3is3that3the3endorsement3for3 human3 rights3 from3 OAS3 members3 was3 noncommittal3 and3 insincere.3 It3 took3 ten3 years3to3muster3the3eight3states3necessary3for3the3Convention3to3come3into3force.3 To3date,3twentyHfive3of3the3thirtyHfive3OAS3Members3have3ratified3the3ACHR,3with3 two3 denunciations3 (Trinidad3 and3 Tobago,3 and3 Venezuela),3 leaving3 the3 total3 number3 at3 twentyHthree.3 The3 Convention3 established3 the3 Court3 although3 given3 the3 long3 ratification3 process3 the3 IACtHR3 only3 came3 into3 existence3 in3 19793 once3 the3 ACHR3 came3 into3 force.3 The3 IACtHR3 initially3 delivered3 mainly3 Advisory3 Opinions,3 struggling3 to3 develop3 its3 case3 law.3 It3 delivered3 its3 first3 judgement3 in3 1987.3Nonetheless,3in3its3relatively3brief3history3the3Court3has3made3a3significant3 contribution3 to3 international3 human3 rights3 jurisprudence3 particularly3 with3 reference3to3human3rights3violations3during3dictatorships3and3civil3wars3in3Latin3 America,3and3more3recently3involving3Indigenous3peoples’3petitions3(see3Chapters3 53and36).33
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International Law, Human Rights Beneficiaries, and South Africa: Some Thoughts on the Utility of International Human Rights Law

International Law, Human Rights Beneficiaries, and South Africa: Some Thoughts on the Utility of International Human Rights Law

While international criminal accountability for private organizations is not provided for in the Hague tribunals," civil liability and other forms of accountability for[r]

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