Pub Date : 2018-06-19DOI: 10.1163/22131035-00701002
Judith Wyttenbach
The internal organisation of a state is a contributing factor to the implementation of human rights treaties. Although federal states do not demonstrate an implementation standard that is generally lower or higher than in unitary states, both the positive developments and deficits arising can be linked to the federal structure. In many cases, under the state’s internal order, the responsibility for implementation lies not only with the federal government but in parallel or even exclusively with the constituent states, provinces or regions. The integration of uniform standards within a system of multi-level politics involves certain special features, which are identified and discussed. For those purposes, the author has evaluated and undertaken a critical analysis of the implementation requirements of international human rights treaties and the European Convention on Human Rights, interpretative documents issued by treaty bodies and judgments of the European Court of Human Rights. The focus of the analysis concerns the structural and institutional frameworks typically found in federal states. The assessment seeks to contribute to a deeper understanding of the benefits and challenges of implementation in federal states.
{"title":"Systemic and Structural Factors Relating to Quality and Equality of Human Rights Implementation in Federal States","authors":"Judith Wyttenbach","doi":"10.1163/22131035-00701002","DOIUrl":"https://doi.org/10.1163/22131035-00701002","url":null,"abstract":"The internal organisation of a state is a contributing factor to the implementation of human rights treaties. Although federal states do not demonstrate an implementation standard that is generally lower or higher than in unitary states, both the positive developments and deficits arising can be linked to the federal structure. In many cases, under the state’s internal order, the responsibility for implementation lies not only with the federal government but in parallel or even exclusively with the constituent states, provinces or regions. The integration of uniform standards within a system of multi-level politics involves certain special features, which are identified and discussed. For those purposes, the author has evaluated and undertaken a critical analysis of the implementation requirements of international human rights treaties and the European Convention on Human Rights, interpretative documents issued by treaty bodies and judgments of the European Court of Human Rights. The focus of the analysis concerns the structural and institutional frameworks typically found in federal states. The assessment seeks to contribute to a deeper understanding of the benefits and challenges of implementation in federal states.","PeriodicalId":13730,"journal":{"name":"International Human Rights Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-06-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/22131035-00701002","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41521611","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-06-19DOI: 10.1163/22131035-00701006
Manny Zhang
In recent times, the question of whether transitional justice can and should ameliorate structural inequalities has been taken up with increased interest by scholars and policy makers. This has led to more ‘transformative’ understandings of transitional justice, which seek to inter alia broaden its conception of justice to include both restorative and redistributive agendas. The Colombian restitution program explicitly adopts a transformative concept of reparations and thus provides an opportunity to consider how a broader conception of justice could be translated into practice through transitional justice mechanisms. While recognising that both restorative and distributive justice can contribute to the reparative needs of victims, this article argues that a transformative approach does not adequately consider the genuine tensions between these dimensions. In addition to this theoretical obstacle, the difficulties of implementation suggest that it creates unrealistic expectations of what reparations can accomplish in practice.
{"title":"Recognition, Transformation and Collective Restitution","authors":"Manny Zhang","doi":"10.1163/22131035-00701006","DOIUrl":"https://doi.org/10.1163/22131035-00701006","url":null,"abstract":"In recent times, the question of whether transitional justice can and should ameliorate structural inequalities has been taken up with increased interest by scholars and policy makers. This has led to more ‘transformative’ understandings of transitional justice, which seek to inter alia broaden its conception of justice to include both restorative and redistributive agendas. The Colombian restitution program explicitly adopts a transformative concept of reparations and thus provides an opportunity to consider how a broader conception of justice could be translated into practice through transitional justice mechanisms. While recognising that both restorative and distributive justice can contribute to the reparative needs of victims, this article argues that a transformative approach does not adequately consider the genuine tensions between these dimensions. In addition to this theoretical obstacle, the difficulties of implementation suggest that it creates unrealistic expectations of what reparations can accomplish in practice.","PeriodicalId":13730,"journal":{"name":"International Human Rights Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-06-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/22131035-00701006","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48827262","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-06-19DOI: 10.1163/22131035-00701003
Manisuli Ssenyonjo
This article examines the main achievements and challenges of Africa’s two regional bodies established to ensure the implementation of human rights in Africa. It makes an assessment of the role of Africa’s oldest regional human rights body, the African Commission on Human and Peoples’ Rights (African Commission) in the last 31 years of its operation (from 1987–March 2018). It also considers the judicial role of the African Court on Human and Peoples’ Rights (African Court) in the last 12 years of its operation (from 2006–March 2018). The increasing contribution of both the Commission and the Court to the protection of human rights under the African Charter on Human and Peoples’ Rights is rarely subjected to scrutiny in mainstream human rights literature. The article is limited to the consideration of the Commission’s contribution with respect to: (i) decisions on admissibility of communications concerning mainly exhaustion of domestic remedies; (ii) decisions on merits of communications; (iii) adoption of resolutions, principles/guidelines, general comments, model laws and advisory opinions; (iv) special rapporteurs and working groups to deal with thematic human rights issues; (v) consideration of State reports and conducting on-site visits; and (vi) referral of communications to the African Court involving unimplemented interim measures, serious or massive human rights violations, or the Commission’s findings on admissibility and merits.
{"title":"Responding to Human Rights Violations in Africa","authors":"Manisuli Ssenyonjo","doi":"10.1163/22131035-00701003","DOIUrl":"https://doi.org/10.1163/22131035-00701003","url":null,"abstract":"This article examines the main achievements and challenges of Africa’s two regional bodies established to ensure the implementation of human rights in Africa. It makes an assessment of the role of Africa’s oldest regional human rights body, the African Commission on Human and Peoples’ Rights (African Commission) in the last 31 years of its operation (from 1987–March 2018). It also considers the judicial role of the African Court on Human and Peoples’ Rights (African Court) in the last 12 years of its operation (from 2006–March 2018). The increasing contribution of both the Commission and the Court to the protection of human rights under the African Charter on Human and Peoples’ Rights is rarely subjected to scrutiny in mainstream human rights literature. The article is limited to the consideration of the Commission’s contribution with respect to: (i) decisions on admissibility of communications concerning mainly exhaustion of domestic remedies; (ii) decisions on merits of communications; (iii) adoption of resolutions, principles/guidelines, general comments, model laws and advisory opinions; (iv) special rapporteurs and working groups to deal with thematic human rights issues; (v) consideration of State reports and conducting on-site visits; and (vi) referral of communications to the African Court involving unimplemented interim measures, serious or massive human rights violations, or the Commission’s findings on admissibility and merits.","PeriodicalId":13730,"journal":{"name":"International Human Rights Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-06-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/22131035-00701003","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46214632","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-06-19DOI: 10.1163/22131035-00701001
Article 5 of the Convention on the Rights of Persons with Disabilities (CRPD) deals with equality and non-discrimination. It specifically provides: 1. States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law. 2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds. 3. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided. 4. Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention. General comment no 6 clarifies the obligations of States parties regarding equality for and non-discrimination of persons with disabilities. It begins by considering equality for and non-discrimination of persons with disabilities in international law (Section II) followed by a discussion of the human rights model of disability and inclusive equality (Section III). It then discusses the legal character of non-discrimination and equality (Section IV), the normative content of Article 5 CRPD (Section v), the general obligations of States parties under the Convention relating to non-discrimination and equality (Section VI), the relationship of Article 5 with other specific articles of the Convention (Section VII), followed by implementation at the national level (Section VIII).
{"title":"General Comment 6 (2018) on Equality and Non-discrimination","authors":"","doi":"10.1163/22131035-00701001","DOIUrl":"https://doi.org/10.1163/22131035-00701001","url":null,"abstract":"Article 5 of the Convention on the Rights of Persons with Disabilities (CRPD) deals with equality and non-discrimination. It specifically provides:\u0000\u00001.\u0000States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.\u0000\u0000\u00002.\u0000States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.\u0000\u0000\u00003.\u0000In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.\u0000\u0000\u00004.\u0000Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention.\u0000\u0000\u0000General comment no 6 clarifies the obligations of States parties regarding equality for and non-discrimination of persons with disabilities. It begins by considering equality for and non-discrimination of persons with disabilities in international law (Section II) followed by a discussion of the human rights model of disability and inclusive equality (Section III). It then discusses the legal character of non-discrimination and equality (Section IV), the normative content of Article 5 CRPD (Section v), the general obligations of States parties under the Convention relating to non-discrimination and equality (Section VI), the relationship of Article 5 with other specific articles of the Convention (Section VII), followed by implementation at the national level (Section VIII).","PeriodicalId":13730,"journal":{"name":"International Human Rights Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-06-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/22131035-00701001","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46654496","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-06-19DOI: 10.1163/22131035-00701005
{"title":"Books Received","authors":"","doi":"10.1163/22131035-00701005","DOIUrl":"https://doi.org/10.1163/22131035-00701005","url":null,"abstract":"","PeriodicalId":13730,"journal":{"name":"International Human Rights Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-06-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/22131035-00701005","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49202600","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Global Multilateral Mechanisms","authors":"J. Donnelly, D. Whelan","doi":"10.4324/9780429456862-5","DOIUrl":"https://doi.org/10.4324/9780429456862-5","url":null,"abstract":"","PeriodicalId":13730,"journal":{"name":"International Human Rights Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-04-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87308348","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Theories of Human Rights","authors":"J. Donnelly, D. Whelan","doi":"10.4324/9780429456862-2","DOIUrl":"https://doi.org/10.4324/9780429456862-2","url":null,"abstract":"","PeriodicalId":13730,"journal":{"name":"International Human Rights Law Review","volume":"29 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-04-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84927276","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2014-08-01DOI: 10.1017/CBO9781107479913.015
O. Schutter
Introduction This chapter reviews a number of questions raised by the protection of human rights at a regional level. It does not offer a systematic treatment of how the Universal Declaration of Human Rights has been implemented in the regional context; nor does it examine in detail the working methods or case law of regional human rights courts or expert bodies established at regional level. This case law has been presented in chapters 3–7, which examined the content of States’ obligations to respect, protect and fulfil human rights without discrimination. In those chapters, the contribution of regional courts or non-judicial bodies has been analysed alongside that of bodies established at the international level, in order to describe the content of the emerging jus commune in the field of human rights. As to the overall context, it has been briefly recalled in chapter 1, section 2, which discussed the role of human rights in the Council of Europe, the Organization of American States, and the African Union. Instead, this chapter aims to review a set of core questions raised at regional level, that remained unaddressed in the previous chapters. It is divided into three sections, corresponding respectively to the Council of Europe, the Organization of American States, and the African Union (formerly Organization of African Unity). The materials presented seek to identify some of the challenges that regional courts have been facing. They address the role of these jurisdictions in the development of the jus commune of human rights, as well as the solutions these courts have developed to ensure the effective implementation of their judgments. In addition, the section on the Council of Europe provides a presentation of the role of the European Committee on Social Rights (ECSR), established under the European Social Charter. The ECSR is chosen as an illustration of one expert body established at regional level, operating roughly along the lines of the UN human rights treaty bodies: the discussion addresses the relationship between the function of the Committee in receiving reports from the States parties to the Charter and its function in receiving collective complaints, and the nature of the collective complaints mechanism itself.
{"title":"Regional mechanisms of protection","authors":"O. Schutter","doi":"10.1017/CBO9781107479913.015","DOIUrl":"https://doi.org/10.1017/CBO9781107479913.015","url":null,"abstract":"Introduction This chapter reviews a number of questions raised by the protection of human rights at a regional level. It does not offer a systematic treatment of how the Universal Declaration of Human Rights has been implemented in the regional context; nor does it examine in detail the working methods or case law of regional human rights courts or expert bodies established at regional level. This case law has been presented in chapters 3–7, which examined the content of States’ obligations to respect, protect and fulfil human rights without discrimination. In those chapters, the contribution of regional courts or non-judicial bodies has been analysed alongside that of bodies established at the international level, in order to describe the content of the emerging jus commune in the field of human rights. As to the overall context, it has been briefly recalled in chapter 1, section 2, which discussed the role of human rights in the Council of Europe, the Organization of American States, and the African Union. Instead, this chapter aims to review a set of core questions raised at regional level, that remained unaddressed in the previous chapters. It is divided into three sections, corresponding respectively to the Council of Europe, the Organization of American States, and the African Union (formerly Organization of African Unity). The materials presented seek to identify some of the challenges that regional courts have been facing. They address the role of these jurisdictions in the development of the jus commune of human rights, as well as the solutions these courts have developed to ensure the effective implementation of their judgments. In addition, the section on the Council of Europe provides a presentation of the role of the European Committee on Social Rights (ECSR), established under the European Social Charter. The ECSR is chosen as an illustration of one expert body established at regional level, operating roughly along the lines of the UN human rights treaty bodies: the discussion addresses the relationship between the function of the Committee in receiving reports from the States parties to the Charter and its function in receiving collective complaints, and the nature of the collective complaints mechanism itself.","PeriodicalId":13730,"journal":{"name":"International Human Rights Law Review","volume":"32 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2014-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88393579","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2013-12-01DOI: 10.1093/HE/9780198746218.003.0013
Rhona K. M. Smith
This chapter examines African, American, European, and international jurisprudence on the right to life. It discusses the positive obligation incumbent on States to protect life; the permissible deprivation of life (the death penalty, death caused by national security forces, and death during armed conflict); and the issue of genocide. The chapter concludes that the right to life is of paramount importance in international human rights law. International law covers not only the straightforward human rights aspects, but also extends to the prevention and punishment of the crime of genocide.
{"title":"13. The right to life","authors":"Rhona K. M. Smith","doi":"10.1093/HE/9780198746218.003.0013","DOIUrl":"https://doi.org/10.1093/HE/9780198746218.003.0013","url":null,"abstract":"This chapter examines African, American, European, and international jurisprudence on the right to life. It discusses the positive obligation incumbent on States to protect life; the permissible deprivation of life (the death penalty, death caused by national security forces, and death during armed conflict); and the issue of genocide. The chapter concludes that the right to life is of paramount importance in international human rights law. International law covers not only the straightforward human rights aspects, but also extends to the prevention and punishment of the crime of genocide.","PeriodicalId":13730,"journal":{"name":"International Human Rights Law Review","volume":"15 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2013-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87234977","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2013-12-01DOI: 10.1093/he/9780198746218.003.0002
Rhona K. M. Smith
This chapter provides an historical sketch of international human rights. It considers the divergent views as to the origins of human rights. The chapter traces developments including the law of aliens; diplomatic laws; the laws of war; slavery; minority rights; the establishment of the International Labour Organization; and human rights protection after the Second World War.
{"title":"2. Historical background","authors":"Rhona K. M. Smith","doi":"10.1093/he/9780198746218.003.0002","DOIUrl":"https://doi.org/10.1093/he/9780198746218.003.0002","url":null,"abstract":"This chapter provides an historical sketch of international human rights. It considers the divergent views as to the origins of human rights. The chapter traces developments including the law of aliens; diplomatic laws; the laws of war; slavery; minority rights; the establishment of the International Labour Organization; and human rights protection after the Second World War.","PeriodicalId":13730,"journal":{"name":"International Human Rights Law Review","volume":"4 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2013-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80205756","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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