Hybrid journal (It can contain Open Access articles) ISSN (Print) 1461-7781 - ISSN (Online) 1744-1021 Published by Oxford University Press[413 journals]
Authors:Schilling T. Pages: 210 - 235 Abstract: AbstractThe discussion of the recognition of human rights by law suffers from the acceptance of three myths: that recognition is provided for in human rights instruments, that there exist moral norms ready to be recognised by law and that recognition is what happens when a legal norm that corresponds to a moral precept is adopted. To counter the first myth, the article undertakes a close reading of the relevant passages of human rights instruments. To counter the second myth, the article observes that there exist few if any universally valid moral norms ready to be recognised by law but an abundance of other moral precepts. To counter the third myth, the article argues that what happens is rather the replication of the content of a moral precept in law. From all these, it follows that there cannot be any necessary connection between moral norms or other precepts and legal human rights. This distinctness of moral precepts and legal human rights, it is argued in conclusion, is apt to strengthen legal human rights protection: it diminishes the influence ‘traditional values’ might otherwise have on this protection. PubDate: Mon, 08 Jun 2020 00:00:00 GMT DOI: 10.1093/hrlr/ngaa016 Issue No:Vol. 20, No. 2 (2020)
Authors:Keane D. Pages: 236 - 268 Abstract: AbstractThe ‘living instrument’ doctrine has emerged as a key vehicle for evolution and innovation within the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). Originating in the case law of the European Court of Human Rights, the doctrine has been adopted by the Committee on the Elimination of Racial Discrimination and, it is argued, all the United Nations treaty bodies. Yet its origins and meaning under ICERD have not been explored. This article investigates its first invocation in an individual communication, Hagan v Australia. It contrasts regional case law, where individual judgments set key interpretive standards, with an international individual communications system that has evolved asymmetrically across the United Nations treaties and does not perform the same standard-setting role. The significance of concluding observations and general recommendations in understanding ICERD as a living instrument is detailed. The living instrument approach in recent inter-State complaints before the International Court of Justice and the Committee is discussed. In conclusion, the need to map ICERD as a living instrument across the multiplicity of its supervisory mechanisms is emphasised. PubDate: Wed, 17 Jun 2020 00:00:00 GMT DOI: 10.1093/hrlr/ngaa013 Issue No:Vol. 20, No. 2 (2020)
Authors:Müller A. Pages: 269 - 305 Abstract: AbstractRecent literature and United Nations documents advocate that most armed non-state actors (ANSAs) should be bound by human rights law. This article takes a more critical stance on this issue. It argues that only a limited number of ANSAs should potentially become human rights duty-bearers: those that exercise de facto (human rights) jurisdiction and thus have considerable institutional and military capacities, as well as particular normative characteristics. It specifies these capacities and characteristics with an analysis of ANSAs’ practice that tentatively indicates that some of these entities may indeed exercise de facto jurisdiction. The argument is justified by highlighting the broader consequences that recognising ANSAs as human rights duty-bearers will entail. It will also endow them with privileges that will legitimise their authority over time. This is grounded in the normative logic of human rights law that emphasises the interrelationship between human rights, equality and democracy that also permeates the notion of jurisdiction and is further supported by a political understanding of the right to self-determination. The article closes with a brief sketch of two complementary ways to develop international law binding ANSAs to be further explored in future research: the so-called ‘responsibilities for human rights’ and an adapted law of occupation. PubDate: Wed, 17 Jun 2020 00:00:00 GMT DOI: 10.1093/hrlr/ngaa012 Issue No:Vol. 20, No. 2 (2020)
Authors:Pijnenburg A. Pages: 306 - 332 Abstract: AbstractContainment policies whereby destination States provide funding, equipment and training to transit States that intercept refugees on their behalf suggest that destination States try to circumvent the prohibition of refoulement and raise the question to what extent destination States can avoid responsibility for violations of the rights of migrants and refugees by cooperating with transit States. Answering this question requires broadening the analysis beyond the principle of non-refoulement, including not only international human rights law, especially the right to leave and the concept of jurisdiction, but also the law of State responsibility, notably the prohibition of complicity. This article argues that, although it remains debatable whether the principle of non-refoulement applies when transit States intercept migrants and refugees on behalf of sponsoring destination States, the wider network of international law rules constrains the latter’s ability to avoid responsibility when implementing cooperative migration control policies. PubDate: Wed, 03 Jun 2020 00:00:00 GMT DOI: 10.1093/hrlr/ngaa011 Issue No:Vol. 20, No. 2 (2020)
Authors:Collinson J. Pages: 333 - 360 Abstract: AbstractThis article rationalises the case law of the European Court of Human Rights under Article 8 of the European Convention on Human Rights in deportation cases involving children. The Court engages in a balancing exercise between the right to family life of the deportee’s family on the one side, and the public interest in deportation on the other. This article expands on existing case law analysis by suggesting that in deportation cases, the Court considers Article 8 as a form of commonly held right, rather than an individual right held by one member of the family. Furthermore, the balance is argued to be constructed as a relationship between two factors on both sides, rather than of a sole factor on either side as being determinative. This article concludes that the best interests of the child (one of the ‘Üner criteria’) is not adequately reflected in the Court’s deportation decision-making practice. PubDate: Sat, 13 Jun 2020 00:00:00 GMT DOI: 10.1093/hrlr/ngaa015 Issue No:Vol. 20, No. 2 (2020)
Authors:Hwang S. Pages: 361 - 380 Abstract: AbstractIn 2014 and 2017, the European Court of Human Rights, respectively, upheld France’s and Belgium’s general bans on wearing face-covering veils in public. Whereas both the acceptance of ensuring the minimum conditions for ‘living together’ as a legitimate aim and the recognition of a wide margin of appreciation appear to demonstrate a pluralistic approach taken by the Court, this article examines the Court’s understanding and application of the principle of pluralism in its reasoning and, in this way, explores why and how the Court’s pluralistic view has led to an anti-pluralistic outcome. It purports to show that it was precisely a majoritarian conception of pluralism that has led the Court to make decisions to the disadvantage of minorities. Moreover, it illustrates how the European multilevel system of human rights protection should be developed in support of the realisation of pluralism. PubDate: Mon, 08 Jun 2020 00:00:00 GMT DOI: 10.1093/hrlr/ngaa014 Issue No:Vol. 20, No. 2 (2020)
Pages: 386 - 386 Abstract: A. Von Arnauld, K. von der Decken and M. Susi (eds), The Cambridge Handbook of New Human Rights: Recognition, Novelty, Rhetoric (Cambridge University Press, Cambridge, 2020, 577pp). PubDate: Thu, 28 May 2020 00:00:00 GMT DOI: 10.1093/hrlr/ngaa017 Issue No:Vol. 20, No. 2 (2020)
Hybrid journal (It can contain Open Access articles)
[413 journals]
