Could Domestic Courts Enforce International Human Rights Norms? An Empirical Study of the Indian Supreme Court Since 1997

2009 ◽  
Author(s):  
Rajat Rana
Keyword(s):  
Human Rights ◽  
Empirical Study ◽  
Supreme Court ◽  
International Human Rights ◽  
Domestic Courts ◽  
International Human ◽  
Indian Supreme Court ◽  
Human Rights Norms

REVOCATION OF ENDURING AMNESTIES VS. PRINCIPLE OF LEGALITY: JURISPRUDENTIAL CONTESTATIONS BETWEEN THE INTER-AMERICAN COURT OF HUMAN RIGHTS AND DOMESTIC COURTS

2017 ◽  
Vol 26 (1) ◽  
pp. 109-137
Author(s):  
Michail Vagias
Keyword(s):  
Human Rights ◽  
Access To Justice ◽  
Human Rights Law ◽  
International Human Rights ◽  
Present Contribution ◽  
American System ◽  
Domestic Courts ◽  
International Human ◽  
Human Rights Norms ◽  
Principle Of Legality

International human rights bodies have declared amnesties for serious human rights violations incompatible with human rights law. As a result, amnesties have been revoked many years after their award. They have thus enabled criminal prosecutions for alleged crimes committed in the distant past. This has particularly been the case in the Inter-American system. Currently, a long debate on the compatibility of amnesties with human rights norms is taking place. The present contribution focuses on a topic hitherto at the fringes of this debate; namely, whether the revocation of amnesties and the initiation of proceedings against the accused, many years after the award of the amnesty, are consistent with the principle of legality. Certain domestic courts have argued that they are not, while the Inter-American Court of Human Rights has decided otherwise. This Article reflects on the reasoning of both sides. It argues that the revocation of amnesties raises valid concerns as regards the principle of legality, which should be seriously considered by the Inter-American Court of Human Rights. It is suggested that the protection of the accused from the risk of a trial made unfair due to the passing of time and the rights of victims of access to justice require the performance of a more nuanced balancing exercise on the part of the Court.

Israel's Supreme Court and International Human Rights Law: The Judgement on ‘Moderate Physical Pressure’

2000 ◽  
Vol 69 (4) ◽  
pp. 413-447 ◽  
Author(s):  
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
International Law ◽  
International Human Rights Law ◽  
International Human Rights ◽  
Substantial Risk ◽  
International Human ◽  
Israeli Supreme Court ◽  
Human Rights Norms ◽  
Spiral Model

AbstractOn September 6, 1999, the Israeli Supreme Court, sitting as the High Court of Justice, handed down its latest judgement on the question of the use of ‘moderate physical pressure’. The lack of substantial references to international law in the Court's reasoning was notable. The present article examines the possible reasons for the reluctance to introduce international law and goes on to analyse the effects of this reluctance. The analysis finds that the reasons for leaving international human rights norms out are less than compelling and that keeping the necessity defence for interrogators using force against detainees leaves a substantial risk of abuse.The article goes on to place the judgement in the larger context of Israeli human rights practices. By applying the so-called ‘spiral model’, developed within international relations theory, it is possible to examine linkages between international norms and domestic change. The model allows for an evaluation of what progress has been achieved so far and for suggestions as to which measures are still needed. It is found that the judgement reasonably can be interpreted as a tactical concession and that further progress in efforts to eradicate the use of force against detainees is dependent upon a change in the attitude of the Israeli public. Future efforts should thus be aimed at influencing Israeli public opinion to ensure that torture is eliminated from Israeli interrogation practices.

Germany

2018 ◽  
Author(s):  
Valentin Aichele
Keyword(s):  
Human Rights ◽  
International Law ◽  
Direct Effect ◽  
Federal Courts ◽  
International Human Rights ◽  
Persons With Disabilities ◽  
Public International Law ◽  
Monitoring Mechanism ◽  
International Human ◽  
Human Rights Norms

This chapter analyses the use and interpretation of the Convention on the Rights of Persons with Disabilities (CRPD) in sixty-nine decisions of German federal courts between 2009 and mid-2016. German courts’ failure to be proactive in demonstrating ‘friendliness towards public international law’ when dealing with international human rights norms has been criticised. The National CRPD Monitoring Mechanism addressed problems in the application of the law. This chapter investigates the courts’ understanding of basic CRPD concepts, judicial techniques, interpretation methods and specific CRPD provisions. The importance of the concepts of self-executing provisions and direct effect is discussed. In quantitative terms, German courts have referred to the CRPD more often than any other UN international human rights instrument. Furthermore, in qualitative terms, federal courts have become more receptive towards the CRPD. However, it is clear that much of the potential for courts to use the CRPD in the realisation of the rights of persons with disabilities remains untapped.

Municipal Courts and the International Interpretive Principle: Al-Kateb v Godwin

2020 ◽  
Vol 43 (3) ◽  
Author(s):  
Michael Kirby
Keyword(s):  
Human Rights ◽  
Common Law ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Global Problems ◽  
The Common ◽  
International Human ◽  
Human Rights Norms ◽  
Constitutional Adjudication

This article examines the decision in Al-Kateb v Godwin (2004) 219 CLR 562. It revisits the suggested ‘heresy‘ that international human rights law may influence the interpretation of the Australian Constitution and other legal texts. Accessing universal human rights law, including in constitutional adjudication, was endorsed in the Bangalore Principles on the Domestic Application of International Human Rights Norms 1988. The author suggests that interpreting statutory language in this way is not dissimilar to the common-law principle of interpreting statutes so as to uphold basic rights. But should an analogous approach be permissible in deciding the meaning of constitutional language? Although arguably invoked by the majority of the High Court in Mabo v Queensland [No 2] (1992) 175 CLR 1, in the context of declaring the common-law, so far this approach has not been accepted for constitutional elaboration in Australia. But should this be so in the age of global problems and internationalism?

Judgment of the Supreme Court of Canada of February 28, 2020, on Nevsun v. Araya: a “quiet revolution” in the assessment of the status of corporations under public international law?

2021 ◽  
Vol 11 (2) ◽  
pp. 25-39
Author(s):  
Vera Rusinova ◽  
Olga Ganina
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
International Law ◽  
Supreme Court Of Canada ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Public International Law ◽  
The Supreme Court ◽  
International Human

The article analyses the Judgment of the Supreme Court of Canada on the Nevsun v. Araya case, which deals with the severe violations of human rights, including slavery and forced labor with respect of the workers of Eritrean mines owned by a Canadian company “Nevsun”. By a 5 to 4 majority, the court concluded that litigants can seek compensation for the violations of international customs committed by a company. This decision is underpinned by the tenets that international customs form a part of Canadian common law, companies can bear responsibility for violations of International Human Rights Law, and under ubi jus ibi remedium principle plaintiffs have a right to receive compensation under national law. Being a commentary to this judgment the article focuses its analysis on an issue that is of a key character for Public International Law, namely on the tenet that international customs impose obligations to respect human rights on companies and they can be called for responsibility for these violations. This conclusion is revolutionary in the part in which it shifts the perception of the companies’ legal status under International Law. The court’s approach is critically assessed against its well-groundness and correspondence to the current stage of International law. In particular, the authors discuss, whether the legal stance on the Supreme Court of Canada, under which companies can bear responsibility for violations of International Human Rights Law is a justified necessity or a head start.

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