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The Access of Individuals to International Justice

Antônio Augusto Cançado Trindade

The right of access to justice, at national and international levels, is a fundamental cornerstone of the protection of human rights. It conforms a true right to the Law. Such right, ... More

The right of access to justice, at national and international levels, is a fundamental cornerstone of the protection of human rights. It conforms a true right to the Law. Such right, lato sensu, amounts to the right to the realization of justice. In such understanding, it comprises not only the formal access to a tribunal or judge, but also respect for the guarantees of due process of law, the right to a fair trial, and to reparations (whenever they are due), and the faithful execution of judgments. The right to an effective domestic remedy is a basic pillar of the rule of law in a democratic society. In its turn, the right of international individual petition, and the safeguard of the integrity of international jurisdiction, are the basic foundations of the emancipation of the individual vis-à-vis his own State.This is a domain that has undergone a remarkable development in recent years. The very notion of “victim” has been the subject of a considerable international case-law. The direct access of victims to international justice has been taking place in the most diverse circumstances, including situations of great adversity, or even defencelessness, of the complainants (e.g., abandoned or “street children”, undocumented migrants, members of peace communities in situations of armed conflict, internally displaced persons, individuals in infra-human conditions of detention, surviving victims of massacres). It is submitted that the right of access to justice belongs today to the domain of jus cogens. Without it, there is no legal system at all. The protection of the human person in the most adverse circumstances has evolved amongst considerations of international ordre public. Such recent evolution has been contributing to the gradual expansion of the material content of jus cogens. Less

Access to Justice as a Human Right

Francesco Francioni (ed.)

In international law, as in any other legal system, respect and protection of human rights can be guaranteed only by the availability of effective judicial remedies. When a right is ... More

In international law, as in any other legal system, respect and protection of human rights can be guaranteed only by the availability of effective judicial remedies. When a right is violated or damage is caused, access to justice is of fundamental importance for the injured individual and it is an essential component of the rule of law. Yet, access to justice as a human right remains problematic in international law. First, because individual access to international justice remains exceptional and based on specific treaty arrangements, rather than on general principles of international law; second, because even when such a right is guaranteed as a matter of treaty obligation, other norms or doctrines of international law may effectively impede its exercise, as in the case of sovereign immunity or non-reviewability of UN Security Council measures directly affecting individuals. Further, even access to domestic legal remedies is suffering because of the constraints, put by security threats such as terrorism, on the full protection of freedom and human rights. This collection of chapters offers seven distinct perspectives on the present status of access to justice: its development in customary international law, the stress put on it in times of emergency, its problematic exercise in the case of violations of the law of war, its application to torture victims, its development in the case law of the UN Human Rights Committee and of the European Court of Human Rights, its application to the emerging field of environmental justice, and finally access to justice as part of fundamental rights in European law. Less

Aftermath: Deportation Law and the New American Diaspora

Daniel Kanstroom

The United States has undertaken a radical, unprecedented social experiment with massive immigration and deportation enforcement. Since the passage of harsh new deportation laws in 1996, ... More

The United States has undertaken a radical, unprecedented social experiment with massive immigration and deportation enforcement. Since the passage of harsh new deportation laws in 1996, the U.S. has deported tens of millions of noncitizens (“aliens”). Many are undocumented, but many others are long-term legal residents with U.S. families. Deportation has torn through many communities like a capricious tornado: touching down suddenly and leaving a trail of devastation in its wake. It has had profound, though still-understudied, effects on individuals, families, and communities, both in the U.S. and in the countries to which deportees are sent. The Obama Administration has continued—and actually expanded—the deportation system. The U.S. has now created what may be termed, somewhat provocatively, a new American diaspora: a forcibly uprooted population of people with deep and cohesive connections to each other and to the nation-state from which they were removed. Once deportees have been expelled to places like Guatemala, Cambodia, Haiti, and El Salvador, many face severe isolation, alienation, persecution and, sometimes, death. Many may never be able to return. This book now considers the current U.S. system. It examines U.S. deportation as it works and as it might work more justly and fairly. Addressing various political, social, philosophical and legal issues, the author considers how deportation works within the ‘rule of law.’ Concluding that the U.S. deportation system remains an anachronistic, ad hoc, legally dubious affair, the book proposes a more human rights-oriented, humane and rational deportation system. Less

Anti-Discrimination Law and the European Union

Mark Bell

The 1999 Treaty of Amsterdam expanded significantly the legal competence of the European Union for combatting discrimination. Traditionally, EU law has concentrated on discrimination ... More

The 1999 Treaty of Amsterdam expanded significantly the legal competence of the European Union for combatting discrimination. Traditionally, EU law has concentrated on discrimination between women and men and discrimination on the grounds of EU nationality. However, Article 13 EC created a new legal space for the Union to regulate discrimination on the ground of racial or ethnic origin, religion or belief, disability, age, or sexual orientation. This book aims to improve our understanding of the evolution of European Union law in the field. To this end, it considers the development of EU law and policy in respect of two specific grounds of discrimination — race and sexual orientation. It provides an account of the debate within the institutions and Member States, analysis of relevant case law from the Court of Justice, and coverage of the anti-discrimination directives adopted in 2001. The book further considers the relationship between national and European anti-discrimination law. A survey of national anti-discrimination statutes is presented in order to identify the variety of legal traditions that exist in this field. The diversity of these legal cultures impacts significantly upon the scope for and nature of EU anti-discrimination legislation. The author concludes by reviewing the principle factors that have influenced the evolution of EU anti-discrimination law and applying this to an analysis of the prospects for future development. Less

Are Human Rights Western: A Contribution to the Dialogue of Civilizations

Arvin Sharma

This book attempts to examine the assumptions that human rights are Western, that Westerners have ‘their own concept of human rights’, and that ‘Western ideas of human rights have ... More

This book attempts to examine the assumptions that human rights are Western, that Westerners have ‘their own concept of human rights’, and that ‘Western ideas of human rights have dominated international discourse’. If Westerners have their own concept of human rights, and if they are ‘human’ rights at the same time, then the following question arises: In precisely what way are they Western? And if they were in some sense Western in 1948, are they still so in 2005? The book is organized as follows. Part I presents arguments which tend to claim that human rights are Western on the basis of their historical background. Part II focuses on arguments based on the secular basis of human rights. Part III engages the economic dimension of the issue, with the rise of capitalism and its role in the context of human rights constituting the distinguishing feature of this dimension. The arguments in Part IV involve concepts of universality, rationality, philosophy, and ethics, each in turn providing the basis for a set of arguments. Part V presents arguments in which the claim that human rights are Western is associated with the concept of modernity. Part VI comprises arguments regarding the alleged Westernness of human rights in which the religious element plays a major role. The experience of the non-Western world in relation to the West, as characterized by colonialism, imperialism, racism, and parochialism, constitutes a natural grouping by itself and forms Part VII of the book. Part VIII presents arguments that take aim at the Westernness of human rights, without necessarily resorting to larger frames of references which characterized the preceding arguments. Finally, Part IX brings together arguments which are related to the institutional dimension of the human rights discourse as distinguished from the ideological and other dimensions of the discourse. Less

Arrest, Detention, and Criminal Justice System: A Study in the Context of the Constitution of India

Bellary Uma Devi

The right to life and personal liberty is the most cherished one of all the human rights. The enjoyment of all other rights depends upon this basic right. This book is a significant ... More

The right to life and personal liberty is the most cherished one of all the human rights. The enjoyment of all other rights depends upon this basic right. This book is a significant contribution to the literature on the right to personal liberty. This book covers the provisions of criminal law, particularly those dealing with powers of arrest and detention and the safeguards against arbitrary exercise of those powers. It deals with preventive detention, detention pending investigation and trial, and punitive detention following conviction. It makes a strong case for further safeguards to reinforce the right to personal liberty. The discussion highlights what needs to be done further to ensure full enjoyment of the most precious right. The book shows that the justifications for punitive detention, namely, deterrence, reformation, and rehabilitation have turned out to be illogical and irrational. It advocates prevention of crime and reparation rather than punishment by way of imprisonment following conviction. Less

Beyond Disagreement: Open Remedies in Human Rights Adjudication

Aruna Sathanapally

Examining the role of ‘open remedies’ in human rights adjudication, this book provides a new perspective informing comparative constitutional debates on how to structure institutional ... More

Examining the role of ‘open remedies’ in human rights adjudication, this book provides a new perspective informing comparative constitutional debates on how to structure institutional relationships over fundamental rights and freedoms. Open remedies declare a human rights violation but invite the other branches of government to decide what corrective action should be taken. Open remedies are premised on the need to engage institutions beyond courts in the process of thinking about and acting on human rights problems. This book considers examples across the United States, South Africa, Canada, and internationally, emphasising their similarities and differences in design and the diverse ways they could operate in practice. The book investigates these possibilities through the first systematic legal and empirical study of the declaration of incompatibility model under the United Kingdom Human Rights Act. This new model provides a non-binding declaration that the law has infringed human rights standards, for the legislature's consideration. By design, it has the potential to support democratic deliberation on what human rights require of the laws and policies of the State, however, it also carries uncertainties and risks. Providing a lucid account of existing debates on the relative roles of courts and legislatures to determine the requirements of fundamental rights commitments, the book argues that we need to look beyond the theoretical focus on rights disagreements, to how these remedies have operated in practice across the courts and the political branches of government. Importantly, we should pay attention to the nature and scope of legislative engagement in deliberation on the human rights matters raised by declarations of incompatibility. Adopting this approach, this book presents a carefully argued view of how courts have exercised this power, as well as how the UK executive and Parliament have responded to its use. Less

Blame it on the WTO: A Human Rights Critique

Sarah Joseph

The World Trade Organization (WTO) is often accused of, at best, not paying enough attention to human rights or, at worst, facilitating and perpetuating human rights abuses. This book ... More

The World Trade Organization (WTO) is often accused of, at best, not paying enough attention to human rights or, at worst, facilitating and perpetuating human rights abuses. This book weighs these criticisms and examines their validity, incorporating legal arguments as well as some economic and political science perspectives. After introducing the respective WTO and human rights regimes, and discussing their legal and normative relationship to each other, the book presents a detailed analysis of the main human rights concerns relating to the WTO. These include the alleged democratic deficit within the Organization and the impact of WTO rules on the right to health, labour rights, the right to food, and on questions of poverty and development. Given that some of the most important issues within the WTO concern its impact on poor people within developing States, the book asks whether rich States have an obligation to the people of poorer States to construct a fairer trading system that better facilitates the alleviation of poverty and development. Against this background, the book examines the current Doha round proposals as well as suggestions for reform of the WTO to make it more ‘human rights-friendly’. Less

Challenges to Civil Rights Guarantees in India

SAHRDC

A.G Noorani (ed.)

Civil liberty is a complex issue with unchanging fundamentals. Cases that were decided hundreds of years ago yield principles that are still applicable and relevant today. India used to ... More

Civil liberty is a complex issue with unchanging fundamentals. Cases that were decided hundreds of years ago yield principles that are still applicable and relevant today. India used to have a rich tradition of civil liberties. Today, there are no national civil liberties organisations in India like Liberty in Britain or the American Civil Liberties Union. India has enacted draconian laws to counter terrorism. Despite the vast scope or misuse of these legislative measures, the judiciary seems to have no intention of striking them down as unconstitutional or introducing sufficient safeguards from a civil rights perspective. This book provides an overview of challenges to civil rights guarantees in India. It examines preventive detention, extra-judicial killings, counter-terrorism and human rights, death penalty, narcoanalysis, undertrials and videoconferencing, acts of bad faith (focusing on anti-conversion laws), impunity, and the Armed Forces (Special Powers) Act. Less

Child Rights in India: Law, Policy, and Practice

Asha Bajpai

This book presents important legislation and judgments on child rights in India. Each chapter includes constitutional provisions, and statutory and decisional law. It also stresses ... More

This book presents important legislation and judgments on child rights in India. Each chapter includes constitutional provisions, and statutory and decisional law. It also stresses various relevant regional and international mechanisms and international standards of behaviour towards children, and a host of inadequacies in laws and procedures. It cites some examples and discusses certain approaches of current nongovernmental organizations’ (NGOs) interventions and strategies in the field to enhance and protect the rights of the child. This volume specifically addresses issues such as child custody and guardianship, adoption, child labour, child sexual abuse and trafficking, juvenile justice, education, health and nutrition of children, and their right to play and recreation. Education is the most efficient tool for empowerment and human development. The Juvenile Justice (Care and Protection of Children) Act 2000 strengthens the role of the State as the guardian of any child in its custody. Addressing the problem of neglect of children's healthcare is a challenge for healthcare providers. Clearly, children do not receive ‘the best that mankind has to offer’ but they can be shielded from the worst. Less