Article

Reflections of the Divine: Some Thoughts on Human Rights

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This paper explores the inconsistent responses of conservative, evangelical Christians to the modern human rights movement as well as the difficulties of that movement in accounting for human rights in terms of the vague notion of dignity. The piece concludes by utilizing the recent work of noted philosopher Nicholas Wolterstorff (Justice: Rights and Wrongs (2008))to articulate a distinctively Christian foundation for human dignity. The stated goal of the article is to spur conservative evangelicals to engage less opportunistically with the human rights movement and encourage those of other faith traditions to develop alternative foundations from within those traditions.

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Attribution of state responsibility for actions or omissions of State-owned enterprises in human rig...

May 2019

Judith Schonsteiner

State-owned enterprises (SOE) carry out important activities in many countries, often generating considerable negative impact regarding the enjoyment of human rights. This paper addresses issues of attribution of responsibility in international customary law and international human rights law, considering that international remedies are one of the possible venues for access to justice in case ... [Show full abstract] national redress fails. The question is whether responsibility only arises when the State does not comply with its duty of SOEs' human rights impact, or whether acts and/or omissions by SOEs may also be directly attributable to the State. Finally, the paper looks into a recent proposal that it is necessary to use piercing the veil theories in order to complement theories of state responsibility, and evaluates its usefulness for international human rights law. The article argues, innovating on this point, that SOEs are the only business entities, which have, as of now, direct responsibilities under international law lege lata.

Technical Report

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"The International Rule of Law in a Human Rights Era"

January 2013

Leigh Swigart

The published report of the 2013 Brandeis Institute for International Judges, which took place in Lund, Sweden in July 2013. The Institute was organized in collaboration with the Raoul Wallenberg Institute for Human Rights and Humanitarian Law. The report Includes discussions on the expanding impact of human rights law on international courts and tribunals, the national impact of international ... [Show full abstract] human rights norms, the universality of human rights, the role of of state engagement and diplomacy in international justice, and the future of international courts and tribunals.

Article

Towards a just planning system: The contribution of law

January 2013

Patrick McAuslan

Patrick McAuslan* states that the intellectual climate of the international community with respect to the role of law in development has been transformed after his involvement in the practice of law in development some 35 years ago. Law is considered as absolutely central to development and development moreover with a pronounced concern for justice and the rule of law. He has been working for a ... [Show full abstract] long period of time in an atmosphere where issues of justice are vital and extremely difficult to achieve. He informs that the effort to increase justice or to decrease injustice is a fundamental objective in all societies and a foundational principle for sustaining human dignity and fairness. The specific term 'justice' has a particularly strong impact on the public and political imagination in comparison with alternatives, such as 'freedom' with its conservative overtones, 'equality' given the impact of a more cultural politics of difference and the search for universal human rights.

Article

Human Rights Duties towards Future Generations and the Potential for Achieving Climate Justice

September 2016 · Netherlands Quarterly of Human Rights

Bridget Lewis

Human rights-based approaches to climate change promise to address the intergenerational injustices of climate change by incorporating an enhanced consideration of the needs of future generations. Yet, a number of questions arise when one contemplates how international human rights law might accommodate the rights of persons as yet unborn. Among them are the theoretical questions of whether it is ... [Show full abstract] possible for future generations to possess human rights and for present generations to owe them corresponding duties. Assuming that such a theoretical conceptualisation is possible, a number of legal issues are present in attempting to protect the rights of future generations within current international human rights law, including the question of how the rights of future generations can be balanced against those of current generations. The paper will examine a number of domestic measures designed to protect the rights of future generations and consider how such mechanisms might contribute to a rights-based approach to resolving intergenerational climate injustice.

Chapter

Conclusions: Collective Human Rights and Low-Tech

December 2017

As we reflect on how we are going to live with new technology in the decades to come, balance is a key component in our evaluation of the costs and benefits of the digital revolution. The digital tightrope—a balancing act between breakneck technological development on the one side, countered by unforeseen consequences that may promote or violate time-honoured rights on the other—represents a ... [Show full abstract] conundrum for humans, both as individuals and as a collective. This book has explored a series of challenges that require thoughtful reflection, the evaluation of one set of interests with respect to another, all within the framework of binding state obligations to protect vulnerable populations. We have argued that the law necessary to regulate use of digital technology for the greater common good is already in place, situated within the architecture of international human rights law and articulated in the constitutions of most nation states.

Article

The Subjective International Right

January 2011 · SSRN Electronic Journal

Anne Peters

Subjective rights of natural persons (as opposed to objective law) manifest the dignity of the human being. Human dignity is a cornerstone of international law since the adoption of the Universal Declaration of Human Rights in 1948. So the guarantee of (subjective) rights is an important element of the current international legal order. The objective of this paper is to demonstrate that ... [Show full abstract] international law as it stands acknowledges the idea of international subjective rights, to explain this idea in doctrinal terms, to conceptualise the subjective international right theoretically, and finally justify this legal construct normatively. In the past decades, individuals have been awarded more and more international rights and obligations, notably outside the field of human rights. Additionally, the international human right to legal personality (Art. 6 UDHR, Art. 16 CCPR) is being progressively interpreted as embodying a human right to international legal personality. It is submitted that both legal trends, taken together, do not merely constitute a quantitative evolution, but have brought about a qualitative shift. The legal status of human beings is no longer merely derived from states, but is a foundational status in itself. Human beings have become “original” international legal subjects in a doctrinal sense. This novel construction has concrete legal consequences, notably with a view to access to justice, both on the domestic and on the international plane. Overall, the conceptualisation of a subjective international right symbolises the new international legal status of the human being, and is a doctrinal building-block of the so-called “humanisation” of international law.

Article

The sovereignty of international law?

August 2017 · University of Toronto Law Journal

Patrick Macklem's The Sovereignty of Human Rights is underpinned by a commitment to explaining the role of human rights law from the 'inside' of international law, distinguishing this strictly legal realm from global politics. We explore questions surrounding the 'inside' and 'outside' of international law by juxtaposing Macklem's positivist, validity-focused, account and our own 'interactional' ... [Show full abstract] approach, which embraces the embeddedness of law in social norms and social practices while emphasizing distinctive traits of legality and legal interaction. We argue that a validity-based conception of legality results in a necessarily thin account of the 'justice' that human rights can do. Next, we consider Macklem's focus on collective rights as being central to the role that he argues human rights play in mitigating the distribution and exercise of sovereign power and in legitimating international law's normative architecture. We assess whether or not international human rights law really plays the legitimating role for international law that Macklem claims it does, given that these rights are subject to a range of limitations built into positive law, such as reservations to treaties, derogation provisions, or substantive limits. Finally, we ask whether human rights serve the distinctive normative function within international law that Macklem accords to them, concluding that several branches and processes of international law shape and restrict sovereignty alongside human rights law.

Chapter

Article 13 [Access to Justice]

February 2017

Eilionoir Flynn

The concept of access to justice has attracted significant attention in international human rights law discourse in recent years. It has been highlighted as key to realising human rights for many marginalised communities, including persons with disabilities, and social movements throughout history have sought to articulate how this right should apply to them to ensure that they can assert and ... [Show full abstract] enforce all other human rights. While at first glance the right to access justice might be thought to only refer to ‘justice’ claims pursued through the formal legal system, Lord et al. define access to justice as ‘encompassing people’s effective access to the systems, procedures, information, and locations used in the administration of justice’. Such a broad definition ensures that the conceptualisation of access to justice is framed to address a wide range of scenarios in which persons with disabilities, and others, make claims about their rights, seek to enforce their entitlements or claim justice.

Article

Health care and global justice

September 2011 · International Journal of Law in Context

Michael Kirby

After 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 ... [Show full abstract] 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.

Article

Children with learning disabilities and their participation in judicial procedures - What can disabi...

January 2017 · Tizard Learning Disability Review

Gabor Petri

Purpose The purpose of this paper is to provide a commentary on the paper titled “The Zone of Parental Control, The ‘Gilded Cage’ and The Deprivation of a Child’s Liberty: Getting Around Article 5”. Design/methodology/approach This paper uses the original article as a jumping off point to assess what aids advocacy organisations and human rights instruments can give to children with learning ... [Show full abstract] disabilities who enter legal procedures. Findings Existing human rights laws such as the UN Convention on the Rights of the Child and the UN Convention on the Rights of Persons with Disabilities provide innovative principles to reviewing existing policies, but little practical guidance is given to real implementation. Disability advocacy is ambiguous towards the question of representation of children with learning disabilities. Originality/value Literature on self-advocacy and especially on the self-advocacy and self-representation of children with learning disabilities is very limited. Access to justice for children with learning disabilities is similarly under-researched and is rarely addressed in disability advocacy.

Article

Mainstreaming Human Rights: The Contribution of the International Court of Justice

February 2012 · Journal of International Dispute Settlement

Bruno Simma

In this article, Judge Bruno Simma reviews the different ways in which the International Court of Justice has dealt with human rights. This examination is based to a significant extent on the author's direct experience of the work of the Court during his tenure there. Underlying the treatment of the subject matter are two basic questions: first, has the development of international human rights ... [Show full abstract] law had an impact on the jurisprudence of the Court? Secondly, and vice versa, has the jurisprudence of the Court contributed to this development, and if yes, how? The author's analysis shows two phases in the engagement of the Court with human rights matters: a long first phase marked by a certain restraint on the part of the Court, and a second phase marked by recent developments indicating a greater degree of readiness to have the Court decide straightforward human rights questions. The author comes to the conclusion that the human rights genie has escaped from the bottle and on that basis reflects on prospects for the future and on the proper role of the Court with regard to human rights.

Article

Human Rights in China in the Context of the Rule of Law: Hearing Before the Congressional-Executive...

September 1989 · Current History

James Feinerman