When Illiberals Embrace Human Rights

The idea and law of derogation Under international human rights law, derogation allows certain human rights to be temporarily suspended in light of national emergency situations which may include armed conflicts. Such derogation provisions can be found in the International Covenant on Civil and Political Rights (ICCPR), the European Convention on Human Rights (ECHR) and the American Convention on Human Rights (ACHR). They seem to reflect the idea of a defence of necessity in international law and transpose it into human rights law. They are escape clauses which allow states, in an allegedly “realistic” perspective, to suspend human rights so as not to be unduly restricted in defending their very existence. Their message is that, when things really go wrong, there is still a way out, as states are not bound to adhere to human rights obligations if this means committing “state suicide.” What seems to reflect common sense is, however, difficult to capture as a legal phenomenon. Derogation clauses, as well as the whole idea of derogation remain opaque in international legal and international relations scholarship. They function in a complex matrix of concerns to guarantee human rights as inherent entitlements and protect citizens and domestic institutions effectively in situations of violence, while at the same time securing the stability and existence of the state and its institutions. Infringements of certain rights, particularly civil liberties as understood in domestic legal systems, were seen as acceptable under strict limits so as to ensure the overall functioning and survival of state and society. “Fundamental” liberties, such as the prohibition of torture and the right to life, were deemed as sacrosanct while other, seemingly less important, rights could be derogated. Derogation remains a paradox for the way it allows the suspension of rights precisely in times when they are most needed. The way in which states deal with the human rights obligations in situations of crisis can be seen as the acid test for their commitment, given that it is precisely in such situations where human rights protection against abusive and overreacting security forces in defence of a state apparatus under threat becomes important.

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...

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...

This paper provides a theoretical and jurisprudential review of the right to appeal and the concept of procedural privilege, examining their implications for the rule of law and access to justice. In particular, this paper explores how the Brazilian Supreme Federal Court's handling of individuals without procedural privileges may violate the right to appeal outlined in International Human Rights Law. To address this research question, the study analyzes international human rights standards applicable to individuals facing adjudication by domestic courts, focusing on the International Covenant on Civil and Political Rights (ICCPR) and the American Convention on Human Rights (ACHR). The research employs doctrinal and comparative methods, integrating legal and jurisprudential analyses. This study offers valuable insights into fair trial rights under international law by examining how Brazil's specific judicial challenges highlight broader global issues related to judicial authority and human rights protection. This paper indirectly examines whether the Brazilian Supreme Court's handling of Inquiry 4781 infringes upon the human right to appeal.

he project “Human Rights and Border Policies: A Comparison of Serbia and Austria” (HURIBO) explores the complex relationship between border control and human rights protection, focusing on the practices of an EU Member State, Austria, and EU candidate country, Serbia, situated along a major migration route. In the context of increasing migration pressures and evolving border enforcement strategies, the project critically analyzes how international human rights standards, particularly those relating to non-refoulement, collective expulsion, and access to asylum, are implemented at national borders. Through a comparative legal analysis, HURIBO investigates the compliance of Serbia and Austria with international and EU human rights obligations, particularly in light of the case law of the European Court of Human Rights (ECtHR) and the Court of Justice of the EU (CJEU). Key activities during the first project year included participation in the international scientific conference “Law and Social Conflicts” at the Faculty of Law in Niš, a study visit to Austrian Institute for Human Rights by the Serbian research team. The project has strengthened academic cooperation between the Faculty of Law, University of Niš, and the Austrian Institute for Human Rights, University of Salzburg, laying down the groundwork for joint publication and policy recommendations.

Legitimacy, Global Governance and Human Rights Institutions: Inverting the Puzzle

Human rights work. This is the message Kathryn Sikkink delivers in her most recent book, Evidence for hope: making human rights work in the 21st century. Writing in response to the current widespread pessimism about human rights, the author's intention is not necessarily to soothe hostile audiences, as the term ‘hope’ in the title would suggest. Rather, she reclaims powerful human rights lessons and rectifies common misunderstandings to advocate for more proactive, well-informed action at a time when this is sorely needed. Unlike other, conventional academic works in the field, Evidence for hope combines scientific rigour in addressing major, contemporary criticisms of human rights with the ability to propose objective means of promoting them exactly where it seems most crucial. In order to do this, Sikkink relies on both scholarship and practices to suggest tailored policy recommendations to deal with ongoing human rights violations. Such a comprehensive book was made possible by the author's careful review of the history of international human rights laws, institutions and movements around the globe. Sikkink has a firm grasp on human rights, avoiding modish precedents which could suggest imposition from the Global North towards the South. The first chapter legitimizes human rights by reminding readers of their diverse origins: Latin American jurists, diplomats and activists early in the 1940s envisioned and advocated for international human rights law; while states in Africa, Asia and the Middle East took the lead in the 1960s and 1970s to build the first strong international human rights institutions. In other words, here one finds evidence of the global South's protagonism in the international human rights system.

A central question in International Relations is how international institutions influence sovereign behavior. The Power of Human Rights (PoHR), edited by Thomas Risse, Stephen Ropp and Kathryn Sikkink (1999), has helped shape this research agenda by highlighting the mechanisms by which international institutions generate domestic effects. Together with a number of other contributions in the literature, it has refreshed our thinking on how international instruments can be useful tools not just for states but also (under certain circumstances) for non-state actors – domestic or transnational – that wish to influence governments. Indeed, study of the domestic effects of international institutions has been one of the most active areas of research in the past ten years. While much of this scholarship has focused primarily on how international institutions matter, the realist challenge persists: despite an increasing number of ways in which international institutions can influence states’ behavior, do international institutions really matter? Do international institutions – particularly those that lack enforcement power in the areas of environmental and human rights politics – really alter states’ behavior? In the area of human rights policies, recent empirical studies suggest that international human rights treaties are often too weak to induce states’ compliance (Hafner-Burton and Tsutsui 2007; Hathaway 2002; Keith 1999). More strikingly, they suggest that, while states increasingly endorse international norms, their actual behavior by and large does not conform to these norms. They further argue that the compliance gap has persisted and, in some cases, even widened over the past thirty years (Hafner-Burton and Ron 2009). To many people, this persistent and possibly growing gap between commitment and compliance calls into question the efficacy of international human rights law and institutions. The resulting policy proposals tend to emphasize enforcement and coercion rather than the “toothless” international law.

International Criminal Tribunals are not party to any human rights convention, which raises the question whether they have human rights obligations under international law at all. If so, these must stem from other sources of international law. This chapter therefore investigates whether the ICTs, as legal entities, are bound by general international human rights law. To that end, this chapter first addresses the legal status of the ICTs in international law, and the two rationales that have prevailed in international legal doctrine for considering international organizations with legal personality to be bound by international law: the so-called transfer thesis and the subject thesis. Subsequently, three concerns are identified that must accompany the conclusion that the ICTs are bound by international human rights law. First, it is difficult to establish the existence of norms contained in the unwritten sources of general international law: custom and general principles of law. Second, international human rights norms are, to a certain extent, inherently flexible and differ considerably from the procedural norms that the ICTs primarily apply in the context of their proceedings. Third, the relationship between the legal instruments of an ICT and IHRL is fundamentally different from the relationship of domestic law with IHRL, because there is no a priori hierarchy between the law of international criminal procedure and IHRL since both are branches of international law. Therefore, the fact that the ICTs are bound by IHRL does not mean that they are, from a formalist perspective, fully precluded from deviating from the norms contained in this body of law.

Introduction: The issue of the relationship between international law and national legal policies in developing countries, especially in the context of human rights (HAM), is increasingly relevant in contemporary international law studies. Developing countries often face significant challenges in integrating international human rights standards into their domestic legal systems.Purposes of the Research: This study aims to analyze the influence of international law on national legal policies in developing countries in the context of human rights.Methods of the Research: The method used in this study is the normative legal research method with a literature study approach, which includes an analysis of various national laws and international legal instruments related to human rights. In addition, this study also refers to the results of academic studies, reports from international human rights institutions, and official documents from organizations such as the United Nations (UN) and the National Human Rights Commission. This approach provides a more comprehensive picture of the implementation of international human rights standards in developing countries.Results Main Findings of the Research: The results main findings of the study show that although many developing countries have ratified various international instruments, such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, their implementation is often hampered by various domestic factors. Inconsistencies between international obligations and national conditions are major obstacles, exacerbated by political instability, weak state institutions, limited resources, and tensions between international norms and local cultures. In addition, political resistance to the implementation of international human rights policies is also a significant challenge, especially in countries that prioritize political or economic interests over commitment to global human rights standards.

Since the enactment of the Constitution of Japan in 1946, the universal nature of human rights has been repeatedly approved by the legal academy, profession and the government authorities. Binding international human rights law is part of the domestic legal order and enjoys a higher status inferior only to the Constitution. Nevertheless, the promise of universal human rights is yet to be fulfilled officially and among ordinary citizens. Like many other countries in the world, there still appears a long way to go in making the faithful application of human rights obligations a reality. Notably, the judicial elite show indifference if not antagonism to interpretation of human rights effectuated at the universal level, thus inducing a number of recommendations from treaty bodies to the effect that international human rights law should be part of professional training. It is critically important that the local populace feel a sense of ownership of human rights law, a condition that might paradoxically come into being through a diametric way of thinking that challenges the very validity of human rights.

The Crisis of International Human Rights Law in the Global Market Economy

Author(s): Hutchinson, Zoe | Abstract: The right to freedom of association in the workplace is a well established norm of international human rights law. However, it has traditionally received insubstantial attention within human rights scholarship. This article situates the right to freedom of association at work within human rights discourses. It looks at the status, scope and importance of the right as it has evolved in international human rights law. In so doing, a case is put that there are strong reasons for states to comply with the right to freedom of association not only in terms of international human rights obligations but also from the perspective of human dignity in the context of an interconnected world.A detailed case study is offered that examines the right to freedom of association in the Australian context. There has been a series of significant changes to Australian labor law in recent years. The Rudd-Gillard Labor government claimed that recent changes were to bring Australia into greater compliance with its obligations under international law. This policy was presented to electors as in sharp contrast to the Work Choices legislation of the Howard Liberal-National party coalition government. This article critically assesses the extent to which the new industrial relations regime in Australia complies with international instruments governing the right to freedom of association at work.

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.