scholarly journals The Right to Perform Rescue at Sea: Jurisprudence and Drowning

2020 ◽  
Vol 21 (3) ◽  
pp. 598-619
Author(s):  
Itamar Mann
Keyword(s):  
International Law ◽  
International Criminal ◽  
Civil Disobedience ◽  
International Criminal Law ◽  
Law Of The Sea ◽  
Political Rights ◽  
Refugee Law ◽  
Civil And Political Rights ◽  
The Right ◽  
Accountability Gap

AbstractFraming largescale migrant drownings as violations of international law has so far not been a straightforward task. The failures of doing so, both in scholarship and in activism, have often revealed important limitations of international law, and a form of rightlessness that is hard-wired in it. Through an assessment of arguments about drowning, framed in the vocabularies of the right to life, refugee law, the law of the sea, and international criminal law, difficulties surrounding the notion of jurisdiction persist: The maritime space has often functioned as a kind of “legal black hole.” Considering such difficulties, this Article suggests that shifting the focus from migrant rights to the civil and political rights of volunteers coming to the rescue, may help in closing the accountability gap. It thus seeks to articulate and conceptualize a form of maritime civil disobedience among rescue volunteers, which may provide the link for eliminating migrant rightlessness at sea.

ACCIDENT AND DESIGN: RECOGNISING VICTIMS OF AGGRESSION IN INTERNATIONAL LAW

2021 ◽  
Vol 70 (1) ◽  
pp. 103-132
Author(s):  
Shane Darcy
Keyword(s):  
Human Rights ◽  
United Nations ◽  
International Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
Future Application ◽  
Political Rights ◽  
Recent Developments ◽  
Civil And Political Rights

AbstractInternational law has not traditionally recognised individuals as victims of the crime of aggression. Recent developments may precipitate a departure from this approach. The activation of the jurisdiction of the International Criminal Court over the crime of aggression opens the way for the future application of the Court's regime of victim participation and reparation in the context of prosecutions for this crime. The determination by the United Nations Human Rights Committee in General Comment No. 36 that any deprivation of life resulting from an act of aggression violates Article 6 of the International Covenant on Civil and Political Rights serves to recognise a previously overlooked class of victims. This article explores these recent developments, by discussing their background, meaning and implications for international law and the rights of victims.

The Contestation of Value-Based Norms: Confirmation or Erosion of International Law?

2019 ◽  
pp. 311-334
Author(s):  
Tiyanjana Maluwa
Keyword(s):  
International Law ◽  
Security Council ◽  
Criminal Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
The Right ◽  
First Time ◽  
Normative Powers

The chapter discusses the concepts of shared values and value-based norms. It examines two areas of international law that provide illustrative examples of contestation of value-based norms: the fight against impunity under international criminal law and the debates about the responsibility to protect. It argues that the African Union’s (AU) difference of view with the International Criminal Court (ICC) over the indictment of Omar Al-Bashir is not a rejection of the non-impunity norm, but of the context and sequencing of its application. As regards the right of intervention codified in the Constitutive Act of the AU, Africans states responded to the failure of the Security Council to invoke its existing normative powers in the Rwanda situation by establishing a treaty-based norm of intervention, the first time that a regional international instrument had ever done so. Thus, in both cases one cannot speak of a decline of international law.

scholarly journals Extraterritorial application of the right to life on the high sea . Commentary to the Views adopted by the Human Rights Committee of 27 January 2021, A.S., D.I., O.I. and G.D. against Italy, Communication No. 3042/2017

2021 ◽  
Author(s):  
Bartosz Pacholski
Keyword(s):  
Human Rights ◽  
International Law ◽  
Subject Matter ◽  
Political Rights ◽  
Right To Life ◽  
Rescue Operation ◽  
Protection Of Human Rights ◽  
The Subject ◽  
Civil And Political Rights ◽  
The Right

The subject matter of this commentary, which instigates the Views of the Human Rights Committee of 27 January 2021, is the protection of one of the fundamental human rights – the right to life. The Committee, as an authority appointed to oversee compliance with the International Covenant on Civil and Political Rights, had to decide on the issue of Italy’s responsibility for failing to provide assistance to a boat in distress, even if the area in which the vessel was located was not within the territory of this state and other acts of international law attribute the responsibility for executing the rescue operation to a third country. According to the Committee’s views, which applied extraterritorial approach to the protection of the right to life, whenever states have the opportunity to take action for the protection of human rights they should do everything possible in a given situation to help people in need.

Part III The Right to Justice, C Restrictions on Rules of Law Justified By Action to Combat Impunity, Principle 24 Restrictions and Other Measures Relating to Amnesty

2018 ◽  
Author(s):  
Siatitsa Ilia Maria ◽  
Wierda Marieke
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Theoretical Framework ◽  
Armed Conflicts ◽  
International Criminal Law ◽  
Historical Background ◽  
Transitions To Democracy ◽  
State Practice ◽  
The Right

Principle 24 deals with restrictions and other measures relating to amnesty. It requires that no amnesty should take precedence over the obligation of states to prosecute, try, and punish the perpetrators of serious crimes under international law. Through the impunity principles, the obligation to prosecute becomes intertwined with the prohibition of amnesties. An amnesty has long been considered a valuable tool to end conflicts or to ease transitions to democracy. In reality, however, state practice on amnesties remains inconsistent and the debate on amnesties continues to persist. After providing a contextual and historical background on Principle 24, this chapter discusses its theoretical framework, focusing on issues arising from the obligation to prosecute, the right to remedy, amnesties in international criminal law, and the right to refuse amnesty. It also examines how amnesties are used by states to end armed conflicts.

scholarly journals Elevating Cultural Rights Using International Criminal Law—The Asian Story

2020 ◽  
pp. 1-12
Author(s):  
Raghavi VISWANATH
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
International Criminal Law ◽  
State Responsibility ◽  
Political Rights ◽  
Cultural Rights ◽  
Civil And Political Rights ◽  
Cross Fertilization

Abstract Codified in Articles 27 and 15(1)(a) of the International Covenant on Civil and Political Rights [ICCPR] and International Covenant on Economic, Social, and Cultural Rights [ICESCR], respectively, cultural rights are still read as distinct from linguistic and religious freedoms. The ICCPR vests cultural rights only in “persons belonging to minorities”, instead of groups. This paper attempts to analyze the reasons for the deficiencies in the ICCPR/ICESCR cultural rights regimes. In so doing, it unpacks the implications of these deficiencies for three current conflicts in Asia—the alleged persecution of Rohingyas in Myanmar, Uighurs in China, and Kashmiri Muslims in India—which are replete with cultural rights violations. It then tests whether the richer culture-based jurisprudence in international criminal law can offer lessons for the recalibration of cultural rights under the ICCPR/ICESCR. In particular, whether such cross-fertilization can trigger the jurisdiction of alternative forums to enforce state responsibility for these violations.

Freedom of Speech in International Law

2021 ◽  
pp. 192-212
Author(s):  
Michael Hamilton
Keyword(s):  
Human Rights ◽  
International Law ◽  
Freedom Of Speech ◽  
Political Rights ◽  
Civil And Political Rights ◽  
The Right ◽  
Domestic Law

This chapter traces the broad contours of the right to freedom of speech as it has evolved in international law, principally under Article 19(2) of the 1996 International Covenant on Civil and Political Rights (ICCPR or ‘the Covenant’). Any speech protective principles deriving from the international jurisprudence are qualified by the following factors: the contextual contingency of the value of speech, the inherently limited reach of international scrutiny, the changing nature of the marketplace, and emerging forms of censorship. The chapter then outlines the key human rights treaty protections for freedom of speech, before further exploring the scope of the right. It examines the permissible grounds for speech restriction, highlighting two contested categories of speech—namely, incitement to hatred and glorification of terrorism—where international law not only concedes the low value of such speech, but specifically mandates its prohibition in domestic law. States that introduce broadly framed speech restrictions may claim to be acting in satisfaction of this prohibitory requirement. In consequence, the intensity of any ensuing international scrutiny will inevitably be substantially reduced.

Rethinking Rights in the Age of the “Anthropocene”

2017 ◽  
Author(s):  
Karen C. Sokol
Keyword(s):  
Public Health ◽  
Legal Theory ◽  
Civil Disobedience ◽  
Unified Theory ◽  
Political Rights ◽  
The Earth ◽  
Global Environmental ◽  
Civil And Political Rights ◽  
The Right ◽  
Health Rights

The current age of climate change—what geologists call the “Anthropocene”— lays bare the falsity of the “rights” dichotomy dominant in Western legal theory. Under that dichotomy, civil and political rights are conceived of as separate from, and more important than, the right to basic health and environmental protection. The author argues that two of the key principles in the Indian texts on which Gandhi based his theory of civil disobedience—love for all beings (ahimsa) and the interconnectedness of all beings and the Earth—provide a basis for dismantling this “rights” dichotomy. The author then discusses other theories of rights that could accommodate a Gandhian-informed unified theory—one that includes civil, political, environmental, and public health rights on equal footing. Such a reconceptualization of rights is necessary to respond to the immense global environmental and public health threats we all face in the age of the Anthropocene.

scholarly journals JUSTICIABILITY OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS IN INTERNATIONAL LAW AND ITS FUTURE IMPLEMENTATION IN INDONESIA

2018 ◽  
Vol 7 (3) ◽  
pp. 451
Author(s):  
Irawati Handayani
Keyword(s):  
International Law ◽  
First Generation ◽  
Second Generation ◽  
International Human Rights Law ◽  
Political Rights ◽  
Human Rights Law ◽  
Cultural Rights ◽  
Civil And Political Rights ◽  
The Right ◽  
Political Right

<p>Economic, social, and cultural rights are categorized as second generation of rights in the concept of international human rights law. Due to its distinction with first generation right, which is civil and political right, it leads to the differentiation of justiciability of second generation rights. It’s quite often that the fulfillment of economic, social, and cultural rights is postponed, while on the contrary civil and political rights have to be accomplished immediately. The query of justiciability of economic, social, and cultural rights rottenly links with the responsibility of state parties on implementing the rights enumerated in ICCPR or ICESCR. Referring to Article 2 of ICESCR, the implementation of rights stated in ICESCR could be in progressive manner and usually this article is used as an example to not fulfill the right immediately. This article will elaborate further the implementation of protection of economic, social, and cultural rights in another country particularly in South Africa and compare it with Indonesia in order to achieve an ideal form of justiciability of this second generation of rights.</p>

Part III The Right to Justice, C Restrictions on Rules of Law Justified By Action to Combat Impunity, Principle 27 Restrictions on Justifications Related to Due Obedience, Superior Responsibility, and Official Status

2018 ◽  
Author(s):  
du Plessis Max
Keyword(s):  
International Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
International Criminal Law ◽  
Historical Background ◽  
International Crimes ◽  
Functional Immunity ◽  
The Right ◽  
Superior Responsibility ◽  
Official Status

Principle 27 deals with restrictions on justifications related to the doctrines of due obedience, superior responsibility, and official status. The defence of due obedience (or superior orders) is premised on the notion that orders must be obeyed and that subordinates often have little or no discretion to refuse to abide by orders of their superiors. The doctrine of command responsibility (or superior criminal responsibility), a creation of international criminal law, states that superiors are criminally liable if they fail to prevent or punish the crimes committed by their subordinates. Under international law in respect to international crimes, immunities are divided into functional immunity (immunity ratione materiae) and personal immunity (immunity ratione personae). This chapter first provides a contextual and historical background on Principle 27 before discussing its theoretical framework and how the doctrines of due obedience, superior responsibility, and official status have been applied in practice.

Habeas Corpus and the Normative Jurisprudence of International Law

2010 ◽  
Vol 23 (2) ◽  
pp. 291-310
Author(s):  
LARRY MAY
Keyword(s):  
International Law ◽  
International Criminal ◽  
International Criminal Law ◽  
Test Case ◽  
Habeas Corpus ◽  
Good Test ◽  
The Third ◽  
The Subject ◽  
The Right ◽  
Procedural Rights

AbstractIn this article I am interested in seeing what the normative jurisprudential support is for a minimalist version of habeas corpus in international law. I investigate what Fuller called ‘procedural natural law’ in contemporary international criminal law. In the first two sections I rehearse some of Hart's and Fuller's views as they pertain to the subject of international law and also to the inner morality of law. In the third section I set out some of my views on these matters, drawing on both Hart and Fuller, concerning the value of fundamental procedural rights. In the fourth section I discuss the right of habeas corpus as a good test case of how to think about these issues. In the final sections I expand on these remarks and argue that procedural rights need to be protected better in international law, if the latter is to have a claim to legitimacy as a mature legal system.

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