A New Human Right to Freedom from Corruption

As is well known, different countries may have a different attitude toward the formal rank of international human rights law in domestic legal order. In those countries that qualify the ratified international human rights law merely as statute, the formal rank of international human rights law is often used as an argument against the binding force of international human rights law on domestic constitutional law. Through a comparative analysis between Germany and Taiwan, though, this paper shows that, despite similar determinations on the formal rank of international (human rights) law, the German and the Taiwanese Constitutional Courts have developed quite different views on the normative significance of international human rights law to their domestic constitutional orders. The different constitutional practices in Germany and Taiwan thus not only reflect Taiwan’s unique international status, but also indicate that the formal rank of international human rights law does not have much to do with its normative binding force on domestic constitutional law. Those who use formal rank as an argument against the binding force of international human rights law on constitutional law presuppose the absolute dichotomy of international and domestic law and thereby overlook the potential compatibility between international human rights law and constitutional law. From a human rights perspective, I argue that international human rights law should not be regarded as an “external” law, but rather as a framework order which delegates domestic constitutional orders to concretize international human rights law according to their own needs or interests so as to fulfill their international task of human rights protection on national level. Viewed this way, the determination on the formal rank of international human rights law in domestic legal order matters only because it has to do with the determination of a certain constitutional order on the way in which it concretizes international human rights law.

The concept of fundamental human rights is observed in most works of human rights scholars (both Islamic and non-Islamic). This concept and its examples may appear self-evident at first glance; however, upon reviewing the relevant works, it becomes evident that no single definition of this concept and its examples has been provided. This lack of consensus is due to the sensitivity of these rights and their impact on the normative hierarchy of the human rights system. The present study, which has been conducted using a descriptive-analytical method and library-based tools, aims to explain the concept of fundamental human rights and their examples within the framework of the international human rights system and the Islamic approach. The findings of the study indicate that the examples of fundamental human rights, as well as the process of their formation within the framework of the international human rights system, are narrower compared to the Islamic human rights approach. On the other hand, in the Islamic human rights approach, the requirements of political jurisprudence and attention to political and governmental necessities can bring the examples and processes of formation of fundamental human rights in the international and Islamic human rights systems closer together.

Human rights law is a powerful legal tool to protect health, including tobacco control. The International Covenant on Economic, Social and Cultural Rights (IESCR) obliges States to produce results and is enforceable. Although a human rights approach would have many advantages for Latin American tobacco control, it has not been appropriately used for advocacy purposes yet. Human rights law is a powerful legal tool to protect health, including tobacco control and smoking cessation. Therefore, I appreciate this article by Meier et al. [1]. I will briefly comment on some additional aspects, both generally and as they relate to the current situation in Latin America. Are human rights enforceable? In theory, yes. Human rights are inherent to human beings and empower individuals (rights holders) to demand that States (duty holders) comply with the obligations of those rights. However, an “artificial” contrast has been raised about differences in enforceability between civil and political rights (e.g. the right to life, liberty, property, etc.) and economic, social and cultural rights (ESCR), related to living conditions and access to material and cultural goods (including the right to health). Civil and political rights confer an obligation of results and no one disputes they are enforceable. ESCR confer obligations of means or behaviour and can be viewed as enforceable only to the extent that the State has sufficient resources; they are, therefore, often regarded as “expectations” [2]. For most Latin American law, the fact that ESCR must be fulfilled according to the available resources does not imply they are not enforceable. The obligation to use “the maximum” of the “available resources,” together with the obligation of progressive satisfaction and the need to the results to the appropriate technical or political standards, would make ESCR enforceable. In addition, international law imposes a fundamental rule: pacta sunt servanda, which means that “contracts are to be fulfilled.” Traditionally, the human rights State obligations were classified into positive obligations (to carry out certain activities leading to compliance; in the case of civilians and politicians) and negative obligations (to refrain from actions that violated them; in the case of ESCR). Currently, the Van Hoof classification describes three types of human rights State obligations: to respect (refrain from interfering directly or indirectly), to protect (take measures to prevent third parties from interfering), and to comply (adopt all legislative, administrative, budgetary and other measures appropriate for its realization) [2]. Although ESCR are considered enforceable rights, they are threatened by the doctrine, linked to economic liberalism, which aims to make the State cheaper, often at the cost of social policies. Additionally, although a human rights approach would have many advantages for Latin American tobacco control, this approach has traditionally not been used by tobacco control advocates, but by rather by the tobacco industry (e.g. arguing freedom of expression violation) to attack tobacco control policies [3]. A human rights approach currently has limited relevance for tobacco control policies in Latin America. As Meier et al. point out, human rights law has a prominent role in political and regulatory discourses, and some countries have already established a connection between tobacco control and the fundamental right to health. Because most Latin American countries belong to the civil law tradition, controlling private actors through civil liability litigation is underdeveloped. However, Latin America also has a strong tradition of controlling State action through fundamental rights litigation. Likewise, the Inter-American Human Rights System provides a way to demand human rights State responsibility. Although the current relevance of a human rights approach in Latin America may be limited, it seems a promising approach that ought to be explored [2]. None. None.

Stigma and discrimination constitute one of the greatest barriers to dealing effectively with the HIV epidemic, underlying a range of human rights violations and hindering access to prevention, care, treatment and support. There is some existing protection against HIV-based discrimination under international law, but the extent of states' obligations to address such discrimination has not been comprehensively addressed in an international instrument.The United Nations Convention on the Rights of Persons with Disabilities entered into force in May 2008. As countries ratify the convention, they are required to amend national laws and policies to give greater protection to the human rights of people with disabilities, including abolishing disability-based discrimination by the state and protecting persons against such discrimination by others. The Disability Convention addresses many of the issues faced by people living with HIV (PLHIV) but does not explicitly include HIV or AIDS within its open-ended definition of "disability".Therefore, the advent of the Disability Convention prompts us to consider the links between HIV and disability and, specifically, to consider the opportunities it and other legal mechanisms, international or domestic, may afford for advancing the human rights of PLHIV facing human rights infringements. We do so in the belief that the movement for human rights is stronger when constituencies with so many common and overlapping interests are united, and that respectful and strategic collaboration ultimately strengthens both the disability rights and the AIDS movements.In this article, we first examine the links between HIV and disability. We then provide a brief overview of how international human rights law has treated both disability and HIV/AIDS. We note some of the different ways in which national anti-discrimination laws have reflected the links between HIV and disability, illustrated with representative examples from a number of countries. Finally, we offer some conclusions and recommendations about ways forward for collaboration between HIV and disability rights advocates in advancing human rights at the international level, including the use of the new tool that is the Disability Convention. We hope these reflections will promote further discussion across movements, ultimately to the benefit of all persons with disabilities and/or HIV.

What is the Specific Evil of Aggression?

Human rights queryfalse are typically presented in terms of entitlements, correlative duties, claims, “trumps,” and remedies. 1 These framings, which draw principally on law and philosophy, emphasi...

The power of the Indonesian Constitutional Court to review laws is a constitutional adjudication process. It is a forum to resolve constitutional issues where a citizen can challenge Law that has injured his rights. The Court's reasoning provides audiences with the debates for its deliberation. Audiences may find reference to the international human rights law. It is an interesting practice. However, there is no studies yet about the information on the statistic of the Court made reference to international human rights law. As such, this study aims to identify reference to international human rights law in the Court's decision on judicial review cases from 2003 to 2016. Additionally, this study also aims to answer the question of what underlies the Court to made reference to international human rights law. As many studies show, the objective of Constitutional Court's references to the international human rights law is to strengthen constitutional rights protection. Nonetheless, the Court did not pay any interests to the global agenda of transnational constitutionalism or a convergence of rights and legal pluralism. The article is divided into 5 (five) sections, commencing with the introduction. The second part discusses the status of international human rights law in Indonesia. As the third presents information on Court's decision which cited international human rights law. Then, the fourth presents typical function of the decision that made reference to international human rights law. It concluded that the practice of referring to international law demonstrates the open attitude of Indonesian constitutional justices to the universal nature of fundamental rights.

Introduction International human rights law is widely acknowledged as having had a transformative effect on the position of the individual in the international legal system in the post-1945 period. But while there is widespread acceptance of the importance of human rights protection in international law, there is considerable confusion about its basis and role in international law. It is often suggested that human rights are defined as those fundamental rights to which every person is entitled to ‘merely by virtue of having been born a human being’; the character of human rights is commonly explained by reference to individual integrity and human dignity. From a rhetorical point of view, the reference to human dignity may be powerful, but it suggests that human rights adhere to individuals through some inherent capacity and fails to acknowledge that international human rights law is tied to the state system of international law: that human rights were initially (at least) conceived as rights held by individuals as against the state, without horizontal effect as between non-state actors. This chapter explores the extent to which international human rights law has engaged individuals. Of interest here is not the content of the rights in question, but how human rights law structurally treats individuals. The first section of the chapter considers the development of the abolition of slavery.

The situation in Palestine has influenced the deployment of international human rights law and international humanitarian law. The impact of longterm Israeli occupation and the rule of the Palestinian Authority in the Occupied Territory is multifaceted. Despite the various research on Palestine, human rights, and the rule of law, few studies have been conducted on the enforcement mechanisms of human rights in Palestine. This study examines the applicability of international human rights and humanitarian laws as well as domestic laws to assess the contribution of these directives in protecting the fundamental human rights of Palestinians in the Occupied Territory. It conducts an in-depth case study of three basic rights: the right to movement, the right to property, and the right to equality and non-discrimination in the Occupied Territory. The study further examines the role of the Palestinian High Court of Justice and the Israeli Supreme Court in implementing domestic and international laws. In this regard, the study examines the major laws which are invoked, in certain circumstances, to limit the ability of Palestinians to confiscate, expropriate, and destruct their private property, and to implement discriminatory practices against them. The study further examines whether the available international and domestic mechanisms are effective, and if not, it suggests modifications upon which a functional national and international system could be built. The findings of the research demonstrate that international human rights treaties and international humanitarian law conventions are de facto and de jure applicable in the Occupied Territory. As a result of the aforementioned in-depth study cases, it can be concluded that human rights violations against Palestinians in the Occupied Territory are committed by the Palestinian Authority and the Israeli government. In addition, the Palestinian and the Israeli judiciaries have failed to grant Palestinians reasonable protection or a just remedy, and they are dysfunctional and politically driven. The study concludes with a proposal for new mechanisms for Palestinians to redress human rights violations. The further outcomes of this study argue that neither international human rights nor humanitarian law guarantee full protection for Palestinians. Hence, the implication of the findings indicates that the regulations of international human rights and humanitarian laws, which were made by the powers of the nineteenth century with their colonial provisions, might not fit to the present complications of the current challenges to international law in Palestine. The goal is to promote a re-thinking approach to the employment of human rights to serve all people in an efficient and well-organized system. The scope of this study is not meant to grant Palestinians favorable treatment in the multilateral international system, but to achieve just and successful remedies for victims of human rights violations.

In recent years, the social dimension of cultural heritage has gained significance in international law. A better understanding of the human rights dimensions of cultural heritage has resulted in substantial recognition of the right to heritage; a right that has not been explicitly regulated in international law. This article aims to analyse the path that cultural heritage law has taken to adopt a human rights law dimension. It also discusses the construction of the right to heritage and maps the connections and disconnections between and within cultural heritage law and international human rights law frameworks. The article uses the example of Indigenous peoples as a referent, due to the special bond that many may have to cultural values which play a significant role in the formation of Indigenous identity. In this context, I argue for a human rights approach to cultural heritage, which offers not only participation but also the co-creation of heritage together with local and Indigenous communities.

Speaking Law as Power: An Introduction to a Foucauldian Critique of International Human Rights Law

The lecture began at 5:00 pm, Wednesday, April 9, and was given by Radhika Coomaraswamy, former UN Special Representative of Secretary-General on Children and Armed Conflict; discussant was Diane Marie Amann, Emily and Ernest Woodruff Chair in International Law, University of Georgia School of Law; Special Adviser on Children in and affected by Armed Conflict, International Criminal Court, Office of Prosecutor. * WOMEN AND CHILDREN: THE CUTTING EDGE OF INTERNATIONAL LAW By Radhika Coomaraswamy ([dagger]) PREFACE Sometime at end of 2011, while I was still United Nations Special Representative of Secretary-General for Children and Armed Conflict, I met an ambassador from an Asian country just before a United Nations Security Council meeting on children and armed conflict. He told me that I was leaving United Nations at right time, because the era of human rights is over, it has been shown up for what it is, a product of western liberalism and now a modern day foreign policy weapon of western imperialism. (1) A few months earlier I was in Central African Republic (CAR) with three generations of women from same family, who had been brutally raped by forces of Jean Pierre Bemba when he entered CAR from Democratic Republic of Congo in 2002. (2) They were getting ready to go to The Hague to testify against him. They described events in detail, and I could feel their sense of vindication and hope. Even if Bemba were not convicted, they found consolation in fact that someone had recognized crimes committed against them. This, then, is complexity of human rights in modern world. Increasingly, member states, along with individuals and groups in Global South, challenge both epistemology and practice of human rights. But despite their efforts, at grass-roots level there is a groundswell of support for idea of human rights, including women's and children's rights, as more and more groups have begun to use discourse and strategy of human rights movement to fight for equality and social justice. INTRODUCTION In traditional world of international law, issues of war, peace, and security have always taken precedence over other developments. (3) The Westphalian origins led to a focus on dispute resolution and establishment of an international order that will enable peace. Even today media attention of world remains on Security Council, whose proceedings dominate discussion of international law and international relations. However, hidden from view away from drama of use of force and international peace and security, there has been a quiet, creeping revolution in area of women's and children's rights at international level, which may have far-reaching consequences on how we think about international law and its place in modern world. I have divided this lecture into three parts: (I) I will identify five ways in which women's rights and children's rights have impacted substance and procedure of international law, especially during last few decades; (II) I will describe backlash against some of these developments that has led to a certain paralysis in their contemporary evolution; and (III) I will identify a way forward--always keeping interests of women and children in mind. Before I proceed, I would like to outline three short caveats. First, international human rights law is often seen as a sub-regime of international law. (4) In same way, women's and children's rights are a sub-regime of international human rights law, with a level of autonomy and integrity relevant to their specialization. Nevertheless, as we will see later, what happens in international arena to regime of human rights also affects issues relating to women and children and vice versa. Some traditional international lawyers may dismiss all this as issues within periphery of periphery, but in some ways they have already begun to play a significant role in international relations. …

The Human Right to Adequate Housing and the Canadian Charter: A Case Comment on Tanudjaja v. Canada (Attorney General).

International human rights law, as with the setting up of the United Nations at the end of the Second World War, promises in the dignity and worth of the human person of nations large and small. International human rights law supposes to save the world population from the scourge of war, despots and other miseries. The international legal order after the end of the Second World War also promises equal sovereignty where all states are equal under international law in spite of inequality of population size, resources and military might. International human rights law thus applies to all states, to protect all populations. International human rights law has been used to liberate colonies and to protect people from oppression. The universal nature of international human rights law means that it applies to all nations large and small. However, the very fact that it is universal also is troublesome when in its application, the Eurocentric understanding of human rights is imposed on all. This paper looks both at the acceptance of Malaysia of international human rights law and her schemes in determining the place for universalism in the application of the law.

Reviewed by: The Twilight of Human Rights Law by Eric A. Posner Hurst Hannum (bio) Eric A. Posner, The Twilight of Human Rights Law (Oxford University Press 2014), 185pages, ISBN 978-0-19-931344-0. Professor Eric A. Posner is a prolific writer and the Kirkland & Ellis Distinguished Service Professor of Law at the University of Chicago. From his CV, it appears that he has spent essentially his entire career in academia. This provocative book is thus primarily a philosophical, quasi-social science critique of international human rights law based on theory, not practice or experience. This very brief biographical summary is necessary because The Twilight of Human Rights Law is based on fundamental misunderstandings of the human rights project, which began in the 1940s, gained political traction in the 1970s, and today influences the rhetoric of practically every government in the world. These misunderstandings are both conceptual and analytical, and they undermine the attention that should be given to a number of difficult questions that Posner raises. The conceptual misunderstanding emerges from the first sentence of Chapter 1: “The animating idea behind human rights is the moral obligation not to harm strangers, and possibly the moral obligation to help them if they are in need.”1 This view of human rights as a legal-moral obligation on outsiders to impose their will or sense of justice on “strangers” leads fairly easily to Posner’s ultimate conclusion that “human rights law has failed to accomplish its objectives,” as discussed more fully below.2 The analytical misunderstanding is shared by many of the new “quantifiers” of human rights compliance, whether they are critical or supportive of human rights in general. It is the assumption that attempting to measure the impact of human rights treaties is a useful means of measuring the impact of human rights. A corollary is that the weakness of legally binding or other enforcement mechanisms is a measure of their failure. In reality, those who draft international human rights texts and who work to implement human rights norms have much more modest goals. Human rights law was not created to justify outside intervention (whether by force or otherwise); it was “animated” by the simple proposition that every human being has rights simply by being human, and that these rights belong to each person equally. While concepts of justice, fairness, and equality have appeared within societies since the beginning of time, the revolution wrought by international human rights was to expand these notions to include those who had been excluded from protection in any given society due to race, caste, gender, religion, or similar characteristics. A second important feature of international human rights law is its origin in the mid-twentieth century, a time when the state was becoming more powerful and increasingly ubiquitous. Human rights focuses on the relationship between the government and the individual (and occasionally groups), both to protect the individual from the power of the state and to identify the positive responsibility of the state to concern itself with the socioeconomic welfare of its population. The changes in government behavior envisaged by human rights are potentially [End Page 1105] extensive and long-term. Thus, Posner’s focus on the recent (twenty years or so) impact of human rights treaties largely misses the point. The goal has always been to persuade governments to change laws and policies through domestic processes, not to impose human rights law primarily through courts, economic sanctions, or military campaigns led by “foreigners.” Posner first offers a superficial overview of human rights history and institutions. The latter discussion is marred by a number of minor errors or overstatements that reflect Posner’s lack of familiarity with the way in which human rights institutions actually work. For example, the book frequently refers to the UN “Council on Human Rights” rather than the Human Rights Council. The description of the work of the UN human rights treaty bodies with respect to individual complaints refers to their attempts to “mediate”3 solutions or to enter into a “dialogue”4 with the country concerned. There is no mention of the committees’ often blunt criticism of specific human rights situations in a country or their published “views...