Deepening Accountability

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.

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...

Foreword. Principal Abbreviations. Part I: National Courts and International Human Rights. 1. National Courts and the International Law of Human Rights B. Conforti. 2. The Jurisprudence of International Human Rights Enforcement: Reflections on the Italian Experience F. Francioni. Part II: Comparative Models for National Enforcement. 3. The Role of Domestic Courts in the Enforcement of International Human Rights: The United Kingdom R. Higgins. 4. The Application by Italian Courts of Human Rights Treaty Law T. Scovazzi. 5. The Role of German Courts in the Enforcement of International Human Rights B. Simma, et al. 6. A Report on the Role of French Judges in the Enforcement of International Human Rights E. Decaux. 7. The Implementation of the International Law of Human Rights by the Judiciary: New Trends in the Light of the Chilean Experience F.O. Vicuna, F.O. Bauza. 8. Direct Applicability of Human Rights Conventions Within the Internal Legal Order: The Situation in Argentina R.E. Vinuesa. 9. The Role of Domestic Courts in the Enforcement of International Human Rights - A View from Austria A.H.E. Morawa, C. Schreuer. 10. International Human Rights Standards in National Law: The Jurisprudence of the United States L. Henkin. 11. The Attitude of the Supreme Court of Israel Towards the Implementation of the International Law of Human Rights E. Benvenisti. 12. International Human Rights Adjudication in Japan Y. Iwasawa. 13. International Human Rights Law in Canadian Courts A.F. Bayefsky. 14. The Role of Domestic Courts in the Adjudication of International Human Rights: A Survey of the Practice and Problems in China Zhaojie J. Li. Part III: Controversial Issues. 15. The Role of the Courts of the United States in Asylum Cases M.J. Churgin. 16. Immunity of State Organs and Defence of Superior Orders as an Obstacle to the Domestic Enforcement of International Human Rights P. de Sena. 17. Overcoming the Hurdle of State Immunity in the Domestic Enforcement of International Human Rights A. Bianchi. 18. The Right of Aliens Not To Be Subject to So-Called `Excessive' Civil Jurisdiction C. Focarelli. Index of Cases.

During the 1990s, the human rights-based approach (HRBA) emerged as the newest development framework to address increasing global poverty and inequality. Under this approach, development objectives are determined by human rights standards and goals as set out in international treaties, conven- tions, declarations, and authoritative interpretations of rights. Beneficiaries of development programmes also gain legal rights against corresponding duty bearers, which supersedes moral claims for the fulfilment of development goals. Furthermore, human rights principles such as equality and non-discrimination, accountability, participation, empowerment and the indivisibility of rights form the cornerstone of a HRBA. However, the human rights framework, as the foundation for this approach, has come under severe criticism over the past few years. Significant disparities exist between that which is promised in the Universal Declaration of Human Rights and real-world respect for, and protection of human rights. This article aims to explore and analyse the most popular of these criticisms. These include critiques raised against the claimed universality of rights, inherent discriminatory practices, the inability of the framework to take account of practicalities and limitations, and the lack of effective protection and monitoring by United Nation’s bodies. It also explores emerging threats such as, for example, globalisation to the human rights framework. However, the framework has proven to be adaptable to these challenges. Practitioners and scholars are continuously working towards overcoming practicalities that impede the achievement of the protection and realisation of the human rights of all. In addition, the article examines critiques against the normative value of human rights as a product of natural law. However, the international human rights framework has gained widespread acceptance as the highest moral authority, as it is based on respect for human dignity and guaranteeing the freedom of all. The article demonstrates that the use of human rights language in lieu of other terms such as ‘goals’, ‘duties’, ‘interests’, ‘needs’, and ‘claims’ carries several advantages, the most important of which is the creation of rights holders with corresponding duty bearers. It also determines that, despite the numerous critiques examined, the human rights framework offers a solid, and the most accepted, foundation for development programming with a number of benefits.

Nowadays, the universal nature of main international treaties on human rights is being called into question by certain countries with increasing frequency. At present time, representatives of some Asian, African and Near Eastern countries state that the contemporary international law of human rights is more oriented to Western countries, which had accepted Christian religion values and extensively fell under the influence of Roman law. This point of view is worth noticing, despite the fact that Western scholars and experts permanently assert that the international law as a whole and the law of human rights in particular are not a product of the West only, but are a global one. This paper is devoted to searching for an answer to the question of to what extent positions of the both parties have been proved and what the international community should do to find a common ground between the opposite camps in this issue. It also determines the nature and peculiarities of the International Law of Human Rights as part of the universal international legal system, reveals the merits and defects of “Universalism” and “Cultural Relativism” conceptions and shows that the effective implementation of international legal norms on human rights is impossible without taking into consideration the peculiarities of historical and cultural development as well as ethnical structure of different countries, which determine specific character and content of national archetypes of the attitude to the law.

Human rights have become the language of justice in our globalizing world. Yet, curiously, despite many rounds of debate over moral versus political conceptions, little attention has been paid to the meaning of human rights as international legal concepts. The specific normative significance of the fact that human rights are legal norms of the international legal order and the implications this has for the nature and justice of that order has gotten lost in the fray. This article addresses Patrick Macklem’s excellent attempt to fill that gap. He is right that a key function of international human rights law is to mitigate the injustices of an international legal order that distributes sovereignty to states. A legal conception of human rights is indeed needed to get at the distinctive normative role international human rights documents play as law. But I argue that, while such an analysis can and must supplement other approaches, no adequate understanding of human rights as international legal norms can dispense with moral justifications of them. Otherwise, the purpose and specificity of human rights as distinct from the rights of corporations and other non-human entities gets obscured and the priority of the human rights of human persons, vis-à-vis other legal persons, is undermined.

Labor movements around the world have explored various forms of global labor governance mechanisms to hold multinational companies accountable for ensuring workers’ and human rights throughout their supply chains. This article examines H&M’s Global Framework Agreement (H&M GFA) and its implementation in three Asian producing countries: Bangladesh, Cambodia, and India to develop some insights on global labor governance. H&M commits to foster trade union and labor rights but is not legally obligated to take steps to actualize those rights. The article contextualizes and signify GFAs importance within international human rights and labor law by referring to business and human rights instruments and by utilizing a social movement perspective. Drawing from three main social movement oriented theoretical disciplines: organizing, legal mobilization and decolonization, this paper evaluates the H&M GFA and GFAs generally. The article pays particular attention to GFAs’ impact on gender because the majority of the workers in the global garment industry are women. In the Asian context, GFAs must be strengthened to be binding on companies to enforce the fundamental labor right to freedom of association, collective bargaining and non-discrimination. They must proactively involve national unions in the negotiation, implementation, and enforcement of the agreement to ensure their full participation and seek their meaningful input on the socio-political context of the producing countries. They must be conceived with a grassroots, multi-layered approach to governance to enable workers from the factory level to the international level to exercise their power and agency to establish labor standards and resolve disputes, form worker-led organizations such as trade unions, and facilitate implementation procedures that are binding on multinational corporations. Further, in the garment industry, the GFAs must proactively address gender related concerns and provide clear avenues for women workers to raise these issues. Notwithstanding these challenges to GFAs, among labor governance strategies within international human rights law, it has the most promise in actualizing labor and human rights.

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...

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.

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

Reviewed by: The International Human Rights Movement: A History by Aryeh Neier Wendy H. Wong (bio) Aryeh Neier , The International Human Rights Movement: A History (Princeton University Press 2012), 379 pages, ISBN No. 978-0-6911-3515-1. A number of important books in the field of human rights have attempted to trace the long history of the phenomenon (and importance) of rights in the political and social history of human civilizations.1 Aryeh Neier's The International Human Rights Movement: A History fundamentally shifts the focus of such discussions, electing instead to focus mostly on post-World War II developments and the global shift towards a human rights oriented world. The book takes its place in the burgeoning bibliography of books that offers a history of human rights, which speaks in itself to the rising importance of the topic across a variety of academic fields. It makes two contributions. First, it adds to the understanding that human rights as we know them today have unfurled most dramatically and most relevantly since the end of World War II.2 Second, Neier's emphasis on non-state actors and, in particular, the nongovernmental organizations (NGOs) that helped reify the human rights project from aspirational international law to practical policies places it among the few sweeping histories of the work, highlighting the role of an international movement in disseminating the human rights regime.3 In these two senses, Neier's version of how we should understand where human rights come from and where they are going should be a primer for anyone starting the study of human rights. Given the growing interest of recent publications in the role that non-state actors play in the construction of human rights, Neier's book is a classic statement of a growing theme in both public and scholarly imaginations.4 Neier's basic thesis is that the international human rights movement has been the most important catalyst in securing human rights throughout the world in the past thirty-five years. He proceeds in the book to provide ample [End Page 804] evidence for why NGOs have affected human rights outcomes. Neier's credible analysis stems from a place of personal investment in the subject matter; after all, he served as Human Rights Watch's founding Executive Director and shaped the politics of human rights in the United States during some of the key moments of inconsistency in the Reagan administration. Neier's book brings to life the contributions of not only the organization dear to his heart, but also traces the history of Amnesty International and other lesser known human rights NGOs working in the US, including: Human Rights First, Physicians for Human Rights, The Committee to Protect Journalists, Global Rights, and others. Neier also discusses non-US-based NGOs. These stories serve to demonstrate the diversity of views and strategies within the worldwide human rights movement, and in turn, Neier gives smaller groups a platform. This is an important achievement of the book, as to date most scholarly examinations have focused on larger, politically salient groups, thereby giving a rather skewed view of international human rights work. As much as this book notes the importance of NGOs, it is also quite clear that Neier did not simply wish to tell a story of NGOs in international human rights politics; instead, he sought to draw a more complete picture by bringing in a broader discussion of human rights beyond non-state actors. In a later chapter, for instance, Neier tackles what he sees as a major goal of the international human rights movement in more recent years: how to hold states accountable for their most grave of abuses. It is in this discussion of the International Criminal Court and other such institutions of accountability that Neier's account of the role of NGOs gets a bit muddled. What exactly is the role of NGOs once tribunals like the ICC get established? Is the work of global activism pertaining to the realization of accountability for human rights abuses, at least the most atrocious of abuses, somewhat resolved now that states have decided to create their own international institutions? The desire to "go beyond" non-state actors...

Introduction The multiple voices making up the field of international human rights are one of its defining characteristics. Diplomats, officials, politicians, social movements, NGOs, academics from various disciplines, commentators and the public at large contribute to debate and practice. They add to, and often complement, the work of (international) lawyers. The interaction of this multitude of actors has stimulated the development of international human rights law. However, it has also increased the scope for misunderstandings and misrepresentations of the law that may be misleading, if not damaging. International human rights law is a normative legal system that has its own rules and methods, which, even if contested, frame the consideration of arising questions. For example, claims that the death penalty is unlawful under international law, while welcome from an advocacy perspective, may be seen as turning what ought to be the law ( de lege ferenda ) into a statement about what the law is ( de lege lata ). If such a claim were to be framed as a legal argument, it would have to be developed very carefully with adequate references so as not to risk undermining the (legal) credibility of the person or organisation making it. Such a risk is particularly evident when assertions made – such as that a successor government may not be responsible for the violations committed by the government preceding it (in an NGO report on Iraq) – reveal fundamental misconceptions of international law, in this case the difference between the succession of governments and states.

Chapter 4: Modern Development of International Human Rights Law: State Practice Involving Multilateral Treaties and Non-Binding International Documents

INTRODUCTION. The subject of this study is achievements (results) of technology, or more precisely, products of artificial intelligence (intelligent machine; intelligent computer program, etc.) and their impact on the implementation of human rights through the prism of the human mind and in the context of the international legal, including the human rights dimension.MATERIALS AND METHODS. The scientific research is based on the work of both Russian and foreign specialists in the field of law, international law, international human rights law, as well as specialists in the regulation and use of artificial intelligence products. Documents and materials of international organizations, primarily the United Nations (UN), as well as national legal acts of the Russian Federation have been analyzed. In the preparation of the study, general scientific, comparative legal and specifically legal methods were used.RESEARCH RESULTS. Within the framework of the conducted research, the authors delved into the concept of the term “artificial intelligence” itself, and come to the conclusion that despite its widespread use by specialists in various fields, there is no single concept of this term at the moment. The authors analyzed the national legal framework of the Russian Federation directly or indirectly regulating the use of AI products, as well as international legal achievements in the regulation of this area (primarily at the universal (UN) and integration (European Union (EU)) levels), with a special emphasis on the implementation and observance of human rights and freedoms.DISCUSSION AND CONCLUSIONS. The authors came to the conclusion that the nature of the impact of artificial intelligence on the realization of human rights is dual. Already at the initial stage of defining the legal regime for the development and use of AI products weak mechanisms of control and responsibility in this sphere are laid down. The question arises as to which legal regime is preferable for states whose corporations are leading in the development of AI products. Despite existing international legal regulatory mechanisms, this protection is still insufficient.

The extraterritoriality or extraterritorial application of international and European human rights treaties refers to the recognition by those treaties' states parties of the international and European human rights of individuals or groups of individuals situated outside their territory and, in a second stage, to the identification of their corresponding duties to those individuals. Examples of extraterritoriality abound in international human rights practice, and in particular in the European Court of Human Rights’ case law. Except for vague and often misleading gestures to the universality of human rights, which allegedly requires their extraterritorial application, however, many of the normative considerations underlying the extraterritorial applicability of human rights have not been broached in the human rights law literature. Nor, conversely, have human rights theorists, even among those who take the supply side of human rights seriously, devoted much attention to the threshold criteria for the abstract recognition of human rights and the trigger of the corresponding duties. To remedy some of those shortcomings, this article endeavours to bring some normative human rights theorizing to bear on the European Court of Human Rights’ recent practice on extraterritoriality. More specifically, the article delves deeper into the notion of ‘jurisdiction’ qua threshold criterion for the applicability of the European Convention on Human Rights both within and outside its states parties’ territories; distinguishes it from related notions such as authority, coercion, power, or control; and explains its normative consequences.