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Human Rights and Climate Change : A Review of the International Legal Dimensions

McInerney-Lankford, Siobhan; Darrow, Mac; Rajamani, Lavanya
Fonte: World Bank Publicador: World Bank
Português
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The study includes a conceptual overview of the link between climate impacts and human rights, focused on the relevant legal obligations underpinning the international law frameworks governing both human rights and climate change. As such it makes a significant contribution to the global debate on climate change and human rights by offering a comprehensive analysis of the international legal dimensions of this intersection. The study helps advance an understanding of what is meant, in legal and policy terms, by the human rights impacts of climate change through examples of specific substantive rights. It gives a legal and theoretic perspective on the connection between human rights and climate change along three dimensions: first, human rights may affect the enjoyment of human rights. Second, measures to address human rights may impact the realization of rights and third, that human rights have potential relevance to policy and operational responses to climate change, and may promote resilience to climate change...

A proposal for the implementation of human rights treaty obligations in armed conflict.

Hassanli, Samaneh
Fonte: Universidade de Adelaide Publicador: Universidade de Adelaide
Tipo: Tese de Doutorado
Publicado em //2014 Português
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This thesis proposes a framework for the application of human rights treaty obligations in extraterritorial armed conflict situations. Traditionally it is International Humanitarian Law (‘IHL’) that governs the conduct of States during military operations abroad. However the humanitarian desire to increase the protections afforded by international law to individuals affected by armed conflict has gradually resulted in the recognition that International Human Rights Law (‘IHRL’) applies alongside IHL in armed conflict situations. This development is, however, associated with significant uncertainties as to the scope of the human rights obligations of States conducting military operations abroad and the relationship between IHL and IHRL in such circumstances. The aim of this thesis is to contribute to this debate by proposing a framework for a better understanding of the dual operation of IHL and IHRL when States conduct military operations abroad. The central argument of this thesis is that the scope of a State’s extraterritorial human rights obligations should depend upon the degree of effective control it exercises over the territory in which it is operating. IHRL is generally predicated on the capacity of the State to control territory and individuals within that territory. States frequently...

The crisis of international human rights law in the global market economy

AUGENSTEIN, Daniel
Fonte: Instituto Universitário Europeu Publicador: Instituto Universitário Europeu
Tipo: Trabalho em Andamento Formato: application/pdf; digital
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The article argues that the facticity of the human rights impacts of economic globalisation increasingly undermines the normativity of the state-centred conception of international human rights law. The exposure of the international legal order of states to the operations of global business entities leads to a collusion of sovereign state interest and globalised corporate power at the expense of protecting the rights of victims of human rights violations. The article scrutinises two prominent attempts to address this lacuna of protection: transnational tort litigation and the UN Guiding Principles on Business and Human Rights. It is argued that both approaches are not only an expression of the present crisis of international human rights law but also risk contributing to its perpetuation. While the ‘escape into tort’ results in the privatisation of public human rights in the global market economy, the UN Guiding Principles entrench their territorialisation in the state legal order in the face of global economic challenges. The concluding section reflects on the future pathways of international human rights law by positing a choice between, on the one hand, a more radical departure from human rights’ state-centred heritage and...

The Interaction of International Human Rights Law with the Domestic Jurisdictions. Present Problems

Fernández Mateo, Manuel
Fonte: Universidad de Alcalá de Henares. Servicio de Publicaciones Publicador: Universidad de Alcalá de Henares. Servicio de Publicaciones
Tipo: Artigo de Revista Científica Formato: application/pdf
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I. Introductory. II. Considerations related to the incorporation of international human rights law in domestic jurisdictions: 1. Monists systems v. dualist systems. 2. Capacity to commit a State in the international sphere. Legislative power v. Executive power. 3. Problems connected with the self-executing character of international human rights norms. 4. Hierarchy position of international treaties in domestic jurisdictions. 5. Universal Jurisdiction. III. The development of enforcement mechanisms by the international institutions specialized in human rights. IV. Conclusions. Bibliography.; Los sistemas de incorporación del Derecho internacional en las legislaciones internas, así como la ejecutabilidad de las resoluciones internacionales, constituyen los elementos esenciales que regulan el grado de cumplimiento del Derecho internacional de los derechos humanos. En este sentido, las relaciones internacionales están controlando el funcionamiento de estos mecanismos convirtiendo estas normas en una herramienta de prueba de acciones adoptadas como resultados de consideraciones de política exterior. Esta tendencia puede ser apreciada en diferentes aspectos. Por un lado, las diferencias entre sistemas monistas y dualistas están desapareciendo. Por otro lado...

The Rule of Prior Exhaustion of Local Remedies in the International Law Doctrine and its Application in the Specific Context of Human Rights Protection

D'ASCOLI, Silvia; SCHERR, Kathrin Maria
Fonte: European University Institute Publicador: European University Institute
Tipo: Trabalho em Andamento Formato: 351403 bytes; application/pdf
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This article analyses the so-called ‘rule of exhaustion of local remedies’ whereby a State must be given the opportunity to redress an alleged wrong within the framework of its own domestic legal system before its international responsibility can be called into question at the level of regional or international organs. With respect to the specific historical development of the rule, the paper portrays the transition of the principle from its original function in international law to its extended application in human rights law. At the centre of the analysis is the question of whether the rule of exhaustion of local remedies has simply been ‘transplanted’ into the field of human rights protection or whether it has undergone substantial transformation to the extent that it now qualifies as a self-contained rule under human rights law. After having analysed the application of the local remedies rule in the field of human rights, it is argued that – even though initially influenced by the original rule in the field of diplomatic protection – at present the local remedies rule in human rights law is an autonomous and self-contained rule with different functions and aims.

Children and young people: the law and human rights

Nicholson, Alastair
Fonte: Universidade Nacional da Austrália Publicador: Universidade Nacional da Austrália
Tipo: Working/Technical Paper Formato: 121334 bytes; 368 bytes; application/pdf; application/octet-stream
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[Introduction]:The title of my address ‘Children and Young People: The Law and Human Rights’ builds on the helpful suggestion of the ACT Law Society Executive. Adding the element of ‘human rights’ to the title was creating a rod for my own back. The combination offers a potentially inexhaustible menu of specific topics. Each could be my single concern this evening and I would not be able to do any of them justice. Were I to focus on a particular segment of our young, such as asylum seekers, indigenous peoples, or those who have special disability needs, I would invariably end up spending much of my time speaking about or updating the deficits that were flagged by the comprehensive 1997 report of the Human Rights and Equal Opportunity and Australian Law Reform Commission, Seen and Heard. Regrettably, I doubt that I could fill the rest of my allotted time by telling you the good news of how governments have subsequently remedied the identified problems. In fact, five years have passed since the Report and the Commonwealth Government has not yet formally responded to it. This observation highlights a further problem attending the tyranny of choice within the title of tonight’s address. The actions or inaction of governments...

The Pro Homine Framework and the Roman Law Spirit of International Human Rights Law

Rocha Ferraz Ribeiro, Dilton
Fonte: Quens University Publicador: Quens University
Tipo: Tese de Doutorado
Português
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The Romans were the first civilization that envisaged an international legal system rooted in the human person and for all humankind. The innovation of this concept was precisely its universality centered on the human conscience, which, different from past approaches to international law, was not theoretically limited to a group of people or a religion. Although still deprived of universal de facto application, the Roman concept of the law of nations or jus gentium guided, to a greater or lesser extent, all subsequent writings on the subject until its complete limitation to a law between states and its current revival within the theoretical framework of international human rights law. The general framework of human rights is the Roman notion that international law flows from an universal reason of all humankind and is equally observed by all peoples and used as law by all peoples or nations. It is this definition, looked through the perspective of modern times, which forms the pro homine framework. Both the European and Inter-American human rights courts unconsciously follow the precepts of the Roman jus gentium. They contribute to the reaffirmation that international human rights is indeed centered on the human person as the end and source of law. This individual-centric and Roman-based conception guide the transformation...

Corporate "Human Rights" to Intellectual Property Protection

Osei Tutu, J. Janewa
Fonte: SelectedWorks Publicador: SelectedWorks
Tipo: Artigo de Revista Científica Formato: application/pdf
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The global intellectual property system protects the interests of intellectual property owners, sometimes to the detriment of competing interests like public health or access to knowledge. Some scholars have proposed a human rights framework for intellectual property as a way to inject balance into the current system. However, the assertion that human rights will bring balance is often coupled with the assumption that corporations are, by definition, excluded from human rights-based intellectual property claims. Yet, corporations have used, and are likely to continue to use, human rights law to ground their intellectual property claims. Since multinational corporations were a major driving force behind increased global intellectual property standards, a human rights framework for intellectual property must contemplate the likelihood that corporations will attempt to co-opt a human rights model in order to bolster their intellectual property claims. Moreover, framing intellectual property interests from a human rights perspective can affect our conceptions of intellectual property and our analysis of the relationship between intellectual property rights and other interests. This Article contends that there is value in using human rights law to limit excessive intellectual property protection. However...

Why should it matter that others have more? Poverty, inequality and the potential of international Human Rights Law

Salomon, Margot E.
Fonte: Department of Law, London School of Economics and Political Science Publicador: Department of Law, London School of Economics and Political Science
Tipo: Monograph; NonPeerReviewed Formato: application/pdf
Publicado em //2010 Português
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A concern with ensuring minimum standards of dignity for all and a doctrine based on the need to secure for everyone basic levels of rights have traditionally shaped the way in which international human rights law addresses poverty. Whether this minimalist, non-relational approach befits international law objectives in the area of world poverty begs consideration. This paper offers three justifications as to why global material inequality – and not just poverty – should matter to international human rights law. The paper then situates requirements regarding the improvement of living conditions, a system of equitable distribution in the case of hunger, and in particular obligations of international cooperation within the post-1945 international effort at people-centred development. The contextual consideration of relevant tenets serves to demonstrate that positive international human rights law can be applied beyond efforts at poverty alleviation to accommodate a doctrine of fair global distribution.

International human rights law and foreign case law in interpreting Constitutional rights: The Supreme Court of Uganda and the death penalty question

Mujuzi,Jamil Ddamulira
Fonte: African Human Rights Law Journal Publicador: African Human Rights Law Journal
Tipo: Artigo de Revista Científica Formato: text/html
Publicado em 01/01/2009 Português
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On 21 January 2009, the Supreme Court of Uganda handed down a judgment in which it held that the death penalty was constitutional, that a mandatory death sentence was unconstitutional, that hanging as a mode of execution was not cruel and inhuman, and that the death row phenomenon is cruel and inhuman and therefore unconstitutional. Although the Constitution of Uganda does not empower or require the Court to refer to international law or foreign case law in interpreting the Constitution, the Court relied heavily on international human rights treaties and jurisprudence in arriving at its decision. This article has three purposes: one, to show how the Ugandan Court used international law and foreign case law in its judgment; two, to analyse the Court's orders; and third to recommend that the Constitution of Uganda be amended to empower or require courts to refer to international law and foreign case law in interpreting the country's Constitution.

Human trafficking and human rights violations in South Africa: Stakeholders' perceptions and the critical role of legislation

Aransiola,Joshua; Zarowsky,Christina
Fonte: African Human Rights Law Journal Publicador: African Human Rights Law Journal
Tipo: Artigo de Revista Científica Formato: text/html
Publicado em 01/01/2014 Português
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This article examines the perspectives of governmental and nongovernmental stakeholders in South Africa on the dynamics of human trafficking in South Africa, and on efforts to protect the human rights of rescued victims of human trafficking prior to the promulgation of human trafficking legislation in the country. The authors seek to understand the range of views and approaches of stakeholders to trafficking, including possible links to HIV, as human trafficking is commonly discussed in the media, but empirical research on the scale, dynamics, and impacts of trafficking in South Africa is scarce. This exploratory situation analysis involves desk review and 24 key informant interviews, using purposive and sequential referral sampling. Respondents included government departments and non-governmental organisations working at a border-crossing site (Musina), and two major destination sites for irregular migrants, including trafficked people (Johannesburg and Cape Town). Almost all respondents reported that human trafficking is significant and complex, and that both cross-border and internal movement of trafficked victims violate victims' rights in several ways. While they suffer at the hands of organised crime syndicates, their rights are further violated even after rescue...

The protection against discrimination based on sexual orientation under the African human rights system

Rudman,Annika
Fonte: African Human Rights Law Journal Publicador: African Human Rights Law Journal
Tipo: Artigo de Revista Científica Formato: text/html
Publicado em 01/01/2015 Português
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Recent legislation proposed or passed in Nigeria, Uganda and The Gambia has put the spotlight on the plights of homosexual persons living in sub-Saharan Africa. In Nigeria, discriminatory laws prohibit same-sex marriages and ban gay clubs and organisations. In Uganda, the Prohibition of the Promotion of Unnatural Sexual Practices Bill of 2014, with contents similar to the notorious Anti-Homosexuality Act, is being considered after a ruling by the Ugandan Constitutional Court rendering the Anti-Homosexuality Act unconstitutional. In The Gambia, the Penal Code has been amended recently to add the crime of 'aggravated homosexuality' with a lifetime prison sentence for any person found guilty. The rights to dignity and equality are protected under the African Charter on Human and Peoples' Rights; however, competing local and global values are arguably growing in Africa, challenging this right. This article explores two main problems: first, how the rights to dignity, equality and non-discrimination should generally be interpreted and applied under the regional African human rights system when related to sexual orientation. In this regard I draw on the interpretation of these rights under international human rights law as well as the jurisprudence of the European Court of Human Rights and its Inter-American counterpart. Second...

Cultural rights versus human rights: A critical analysis of the trokosi practice in Ghana and the role of civil society

Asomah,Joseph Yaw
Fonte: African Human Rights Law Journal Publicador: African Human Rights Law Journal
Tipo: Artigo de Revista Científica Formato: text/html
Publicado em 01/01/2015 Português
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In this article, I examine critically the culture versus human rights debate, and the crucial role and tactics of civil society organisations, drawing on insights from transnational advocacy networking, in the struggle to extend human rights to vulnerable people with reference to the trokosi practice in Ghana. This trokosi system turns virgin girls into slaves of the gods to atone for crimes committed by their family members. Theoretically, universal human rights must take precedence over any demand for cultural rights. In practice, however, the actual enforcement of human rights laws that conflict with other cultural values and practices can be more messy and complex than it is often conceptualised. Essentially, universal human rights accommodate, recognise and promote cultural rights; however, the latter ends at a point where its observance is likely to result in the violation of the fundamental human rights of others. I conclude that, although the call for cultural pluralism and the need to celebrate and respect the diversity of cultures sound legitimate, this demand cannot be allowed to trump the minimum package of the fundamental human rights that protect human dignity, wellbeing and integrity within the context of human rights protocols that state parties already have ratified. Yet...

Striking a balance between community norms and human rights: The continuing struggle of the East African Court of Justice

Possi,Ally
Fonte: African Human Rights Law Journal Publicador: African Human Rights Law Journal
Tipo: Artigo de Revista Científica Formato: text/html
Publicado em 01/01/2015 Português
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The article exposes the difficult position in which the East African Court of Justice (EACJ) finds itself when faced with matters containing human rights allegations, which the Court is barred from deciding as such. The EACJ is often called upon to draw a line between what might constitute a human rights case and a claim relating to an East African Community (EAC) norm which is not barred under article 27(2) of the East African Community Treaty. As the main judicial mechanism of the EAC, the EACJ is primarily mandated to interpret and apply EAC law, of which human rights form part. Despite the existing limitations, the EACJ has clearly laid down its position that it cannot 'abdicate' exercising its interpretive mandate, even if a matter before it contains allegations of human rights violations. In doing so, the EACJ has indirectly protected human rights in the EAC through other forms of cause of actions, such as the rule of law and good governance. This contribution advances two key arguments: First, the EAC Treaty contains human rights norms that the EACj cannot escape from interpreting. Second, due to the continuing restrictions in adjudicating human rights, as well as the existing human rights norms in the EAC Treaty, the EACJ is trapped in precarious attempts to balance the advancing of EAC norms...

Local government and human rights: Building institutional links for the effective protection and realisation of human rights in Africa

Bosire,Conrad Mugoya
Fonte: African Human Rights Law Journal Publicador: African Human Rights Law Journal
Tipo: Artigo de Revista Científica Formato: text/html
Publicado em 01/01/2011 Português
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There is increasing recognition of the role of local government in the protection and realisation of human rights obligations. Recent studies on links between local government, decentralisation and human rights are evidence of this growing recognition. In Africa, there are newly-formed pan-African institutions on local government. Local authorities and national local government associations have also formed a regional association. National ministries in charge of local government have formed a regional inter-ministerial forum on local government and decentralisation. This trend is replicated at sub-regional levels in Africa. While the place and role of local government in international human rights law are not yet fully understood, the formation of these institutions provides an appropriate avenue for the same. The article makes a case for institutional collaboration between these regional institutions, sub-regional institutions and the African Commission on Human and Peoples' Rights in order to achieve more effective rights protection. While this article presumes that such institutional collaboration will lead to better protection of human rights, it makes a further argument that this will only happen where the specific gaps identified are addressed to strengthen the role of local government in human rights.

Have the norms and jurisprudence of the African human rights system been pro-poor?

Okafor,Obiora; Ugochukwu,Basil
Fonte: African Human Rights Law Journal Publicador: African Human Rights Law Journal
Tipo: Artigo de Revista Científica Formato: text/html
Publicado em 01/01/2011 Português
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Drawing upon the important insight of critical human rights scholars that 'pro-human rights' are not necessarily 'pro-poor', this article mainly utilises Baxi's germinal thesis on the emergence of a trade-related market-friendly human rights (TREMF) paradigm (that is slowly but surely displacing what he refers to as the UDHR paradigm, much to the advantage of global capital and the rich/powerful/elite, and greatly to the disadvantage of the poor) in assessing the extent to which the norms and jurisprudence of the African human rights system have been pro-poor. After demarcating its scope, outlining its limitations and offering an explanation of the conception of poverty that animates its use of the terms 'the poor' and 'pro-poor', the article analyses the relevant norms and jurisprudence of the African system in the context of the conceptual framework of the study, and concludes that these norms and jurisprudence have tended to be animated by an anti-TREMF (and pro-UDHR paradigm) sensibility, ethic and politics, and have for this and other reasons been more or less pro-poor in orientation. While these findings show that the TREMF paradigm has not completely eaten away at the pro-poorness of the textual affirmations of human rights that guide and have been produced by such international human rights systems...

Combating sexual violence in schools in sub-Saharan Africa: Legal strategies under regional and international human rights law

Beninger,Christina
Fonte: African Human Rights Law Journal Publicador: African Human Rights Law Journal
Tipo: Artigo de Revista Científica Formato: text/html
Publicado em 01/20/2013 Português
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Although schools are generally regarded as a 'safe haven' for children, the reality for many girls is that schools can be a place of sexual discrimination, harassment and violence, perpetrated by fellow male students and teachers alike. The widespread problem of sexual and gender-based violence, particularly sexual violence, in schools has been well-documented in a range of studies and reports in sub-Saharan Africa. Sexual and gender-based violence in schools not only violates girls' fundamental rights to dignity and equality, and their rights to be free from violence, but it also undermines their rights to education, particularly when, as is often the case, states fail to take measures to protect girls. Although there is a growing body of empirical research documenting the nature and extent of this problem, particularly in various sub-Saharan African countries, how regional and international human rights law applies to protect girls in this situation appears to have received limited consideration. This article attempts to fill this gap in the literature, by providing an analysis of the problem of sexual and gender-based violence in schools within the framework of regional and international human rights law. The article's objective is to identify and discuss rights-based legal strategies to combat this pervasive human rights violation...

The Model Law on HIV in Southern Africa: Third World Approaches to International Law insights into a human rights-based approach

Johnson,Robert
Fonte: African Human Rights Law Journal Publicador: African Human Rights Law Journal
Tipo: Artigo de Revista Científica Formato: text/html
Publicado em 01/01/2009 Português
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Legislating in response to the HIV epidemic is a core element of the global HIV strategy. A human rights-based approach is essential in order to comply with international law as well as to ensure effectiveness. This stands in contrast to punitive measures and criminalisation provisions within HIV legislation. Third World states are entitled to be cautious about a purportedly human rights-based approach and an explicit conformity with international law that have their institutional origins in advancing Western hegemonic interests. The insights of Third World Approaches to International Law (TWAIL) are important in harnessing international human rights law as a necessarily transformative framework that is effective in meeting its globally equitable and social justice character. This is especially so for the Southern African model law on HIV. TWAIL provide critical guidance relating to context and strategy for Southern African states in this regard and the model law, in turn, offers important opportunities in advancing TWAIL objectives in its counter-hegemonic struggle for global equity and justice. The Southern African model law on HIV is strongly compliant with international human rights principles and obligations and relevant to effectively address the nature of the HIV epidemic in the region. The domestic adoption of the model law across Southern African states has the potential to fulfil a strategically crucial transformative role in advancing Third World resistance.

African values and human rights as two sides of the same coin: A reply to Oyowe

Metz,Thaddeus
Fonte: African Human Rights Law Journal Publicador: African Human Rights Law Journal
Tipo: Artigo de Revista Científica Formato: text/html
Publicado em 01/01/2014 Português
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In an article previously published in this Journal, Anthony Oyowe critically engages with my attempt to demonstrate how the human rights characteristic of South Africa's Constitution can be grounded on a certain interpretation of Afro-communitarian values that are often associated with talk of ubuntu. Drawing on recurrent themes of human dignity and communal relationships in the sub-Saharan tradition, I have advanced a moral-philosophical principle that I argue entails and plausibly explains a wide array of individual rights to civil liberties, political power, criminal procedures and economic resources. Oyowe's most important criticism of my theory is in effect that it is caught in a dilemma: Either the principle I articulate can account for human rights, in which case it does not count as communitarian, or it does count as the latter, but cannot account for the former. In this article, I reply to Oyowe, contending that he misinterprets key facets of my theory to the point of not yet engaging with its core strategy for deriving human rights from salient elements of ubuntu. I conclude that Oyowe is unjustified in claiming that there are 'theoretical lapses' that 'cast enormous doubts' on my project of deriving human rights from a basic moral principle with a recognisably sub-Saharan and communitarian pedigree.

The protection of participants in clinical research in Africa: Does domestic human rights law have a role to play?

Nienaber,Annelize
Fonte: African Human Rights Law Journal Publicador: African Human Rights Law Journal
Tipo: Artigo de Revista Científica Formato: text/html
Publicado em 01/01/2008 Português
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This article investigates the protection of clinical research participants in sub-Saharan Africa by domestic human rights instruments. It assesses the weaknesses in the existing regulatory framework in the form of international and national ethical guidelines, and surveys domestic human rights law in selected African countries to ascertain whether domestic human rights law may be used to augment and enhance the existing system of protection. It concludes that domestic human rights law has an important (if hitherto unutilised) role to play in the protection of clinical research participants in sub-Saharan Africa.