Law

Non-citizens include asylum seekers, rejected asylum seekers, immigrants, non-immigrants, migrant workers, refugees, stateless persons, and trafficked persons. This book argues that regardless of their citizenship status, non-citizens should, by virtue of their essential humanity, enjoy all human rights unless exceptional distinctions serve a legitimate State objective and are proportional to the achievement of that objective. Non-citizens should have freedom from arbitrary arrest, arbitrary killing, child labour, forced labour, inhuman treatment, invasions of privacy, refoulement, slavery, unfair trial, and violations of humanitarian law. Additionally, non-citizens should have the right to consular protection, equality, freedom of religion and belief, labour rights (for example, as to collective bargaining, workers' compensation, healthy and safe working conditions, etc.), the right to marry, peaceful association and assembly, protection as minors; and social, cultural, and economic rights. There is a large gap, however, between the rights that international human rights law guarantee to non-citizens and the realities they face. In many countries, non-citizens are confronted with institutional and endemic discrimination and suffering. The situation has worsened since 11 September 2001, as several governments have detained or otherwise violated the rights of non-citizens in response to fears of terrorism. This book attempts to understand and respond to the challenges of international human rights law guarantees for non-citizens human rights.

This book moves beyond the artificial boundary between socio-economic and civil and political rights and instead focuses on the positive duties to which all rights give rise. Human rights have traditionally been understood as protecting individual freedom against intrusion by the State. This book argues that human rights are based on a far richer view of freedom, going beyond absence of coercion and focussing on the ability to exercise such freedom. This requires positive action to facilitate freedom, and substantive equality. It also recognizes the essentially social nature of human beings, and the crucial role of social interaction in advancing freedom. Drawing on political theory and social policy, as well as comparative experience from India, South Africa, the European Convention on Human Rights, the EU, US, Canada, and the UK, the book aims to create a theoretical and applied framework for understanding positive human rights duties. The first part focuses on creating an analytic framework for understanding positive duties. Chapter 1 aims to refashion the underlying values of liberty, equality and solidarity to yield the rich understanding of human rights argued for in this book. Chapter 2 focuses on the State, examining the role of positive human rights duties in furthering democracy, and in respect of globalization and privatization. Part II aims to fashion a democratic role for courts as well as examining alternative compliance methods, while Part III applies the analysis to specific rights, firstly equality, and then the traditional socio-economic rights to housing, education, and welfare.

The imperatives of sovereignty, human rights, and national security very often pull in different directions, yet the relations between these three different notions are considerably more subtle than those of simple opposition. Rather, their interaction may at times be contradictory, at others tense, and at others even complementary. This collection presents an analysis of the irreducible dilemmas posed by the foundational challenges of sovereignty, human rights, and security, not merely in terms of the formal doctrine of their disciplines, but also of the manner in which they can be configured in order to achieve persuasive legitimacy as to both methods and results. The chapters in this volume represent an attempt to face up to these dilemmas in all of their complexity, and to suggest ways in which they can be confronted productively both in the abstract and in the concrete circumstances of particular cases. This book is of huge topical importance in the post 9/11 era and in the wake of the Kosovan declaration of independence. It looks at the impact of national security needs on the development of the international legal regime.

Post-Cold War history has witnessed a transformation in the relationship of law to violence in global politics. The normative foundations of the international legal order have been shifting their emphasis from state security to human security: the security of persons and peoples. Increasingly, courts, tribunals, other international bodies, and political actors draw from this new framework to assess the rights and wrongs of conflict; determine whether and how to intervene; and impose accountability and responsibility on state and non-state actors. The result of this shift is the law of humanity — a framework that spans the law of war, international human-rights law, and international criminal justice. The author explores the humanity-law phenomenon by looking to its historical roots, its contemporary tendencies, and its effect on the discourse of international relations. Humanity law’s framework is most evident in the jurisprudence of the tribunals — international, regional and domestic — adjudicating disputes often spanning issues of internal and international conflict and security. Yet because most international legal scholarship focuses on individual regimes or tribunals, it is easy to miss the evolution of a jurisprudence connecting the rulings of diverse tribunals and institutions. This jurisprudence tends to expand rights and responsibilities to encompass wider circles of conduct; sweep in additional actors within conflicts; increase the legal responsibilities of states, even for the behavior of non-state actors; and exhibit less deference to the traditional sovereign prerogatives of states, where doing so would interfere with the overriding goal of protecting persons and peoples.

Traditional international law aims to protect the values and interests of states. The rapidly increasing corpus of international human rights law (including international humanitarian law and international criminal law) increasingly challenges the basic tenets of general international law. In order to become accepted as the law of the world community, general international law needs to reflect better the values and interests of a wider range of actors, including the individual. This book examines the impact of international human rights law on general international law. It considers areas including the structure of international obligations, the formation of customary international law, treaty law, immunities, state responsibility, and diplomatic protection. The book traces the extent to which concepts emanating from international human rights law are being incorporated by the guardians of traditional international law: the International Court of Justice and the International Law Commission.

The contribution of the ad hoc tribunals to international criminal law and international justice has been manifold, both academically and historically, and they will continue to influence the findings and decisions of many other courts (both domestic and international), provoking discussion for many years to come. This volume provides the first comprehensive analysis of the law of international crimes as applied by the ad hoc tribunals for the former Yugoslavia and Rwanda. This book examines the legal and historical significance of some of the most important judicial developments to occur in the last fifty years in international criminal law. It states the law of the tribunals, and provides concrete illustrations of the application of the law to a variety of criminal cases, providing a comprehensive and detailed analysis of this voluminous body of jurisprudence. The primary focus is on the jurisdiction ratione materiae of the tribunals: the definition and application of the law of war crimes, crimes against humanity, and genocide. However, it also examines the tribunals’ jurisdiction ratione personae, insofar as this enables a full understanding of the law of crimes (for instance, in relation to forms of criminal liability).

This legal text provides a theoretical and practical overview of the international legal architecture between developing countries and advanced nations. The text is divided into two parts, the first part providing a theoretical overview of the philosophical implications of international development law principles. Specifically, substantive legal principles with respect to the parties, institutions, and legal norms are discussed providing the reader with a concise and innovative framework in which to analyze development issues. A more practical, “projectized approach” to the development process is also examined based on official development assistance programs of the World Bank and other institutions. Finally, the “right to development” within the international human rights discourse is critically reviewed. The second part deals with the international financial architecture and provides a critical review of international borrowing practices leading to the debt overhang and related problems. Additionally, privatization and capital market growth are examined as critical elements of encouraging broad based economic development that may lead to sustainable development overall. In brief, this legal text offers a fresh, new, and balanced legal perspective on the development process. The text has been rigorously researched and has many practical facets based on professional experience within the development field.

This book explores whether or not international human rights and Islamic law are compatible. It asks whether Muslim States can comply with international human rights law whilst adhering to Islamic law. The traditional arguments on this subject are examined and responded to from both international human rights and Islamic legal perspectives. The volume engages international human rights law in theoretical dialogue with Islamic law, facilitating an evaluation of the human rights policy of modern Muslim States. It formulates a synthesis between these two extremes, and argues that although there are differences of scope and application, there is no fundamental incompatibility between these two bodies of law. The author argues that their differences could be better addressed if the concept of human rights were positively established from within the themes of Islamic law, rather than by imposing it upon Islamic law as an alien concept. Each article of the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights, as well as relevant articles of the Convention on the Elimination of All Forms of Discrimination against Women, are analysed in the light of Islamic law. The book concludes that it is possible to harmonise the differences between international human rights law and Islamic law through the adoption of the ‘margin of appreciation’ doctrine by international human rights treaty bodies and the utilization of the Islamic law doctrines of ‘maqâsid al-sharî'ah’ (the overall objective of Sharî'ah) and ‘maslahah’ (welfare) by Muslim States in their interpretation and application of Islamic law, respectively.

Since the establishment of the African Union in 2001, there has been a proliferation of regional institutions that are relevant to human rights in Africa. These include the Pan African Parliament; the Peace and Security Council; the Economic, Social, and Cultural Council; and the African Peer Review Mechanism of the New Partnership for Africa's Development. This book discusses the links between these institutions, and 20 years of jurisprudence stemming from the entry into force on 21st October 1986 of the major African human rights instrument, the African Charter on Human and Peoples Rights. This book attempts to provide a comprehensive analytical overview of human rights in Africa, dealing particularly with the regional system of human rights protection. Four themes are followed throughout the book: the principle of uti possidetis, the tensions in the modern post-colonial African state, poverty, and the interrelationship between national and international human rights protection.

The idea that international humanitarian law (IHL) and international human rights law (IHRL) are complementary, rather than mutually exclusive regimes generated a paradigmatic shift in the international legal discourse. The reconciliation was driven by a humanistic ethos and its purpose was to offer greater protection of the rights to life, liberty, and dignity of all individuals under all circumstances. The complementarity of both regimes currently enjoys the status of the new orthodoxy and simultaneously invites critical reflection. The chapters in this book accept the invitation, offering diverse assessments of the merits of taking human rights to the battlefields of the 21st century. The book comprises three parts: Part I focuses on the paradigmatic (security based ‘armed conflict’ vs. human rights centered ‘law enforcement’ paradigms) and the normative complexities of the interaction between both regimes in the ‘fight against terror’ and in other, allegedly new, types of wars. Part II discusses the interplay between IHRL and IHL in the context of three specific regimes: belligerent occupation, the European Court of Human Rights, and the protection of cultural heritage. Part III explores the potential fusion of IHL and IHRL into a new paradigm in two areas: post-bellum accountability and compensation to victims of war crimes. The range of issues, multitude of competing norms and narratives, and shifting paradigms explored in this collection, converse with each other. This conversation mirrors the process through which international law — paying deference to political realities while simultaneously seeking to transcend them — charts new pathways to advance its humanizing project.