Comparative Human Rights Law

The Contemporary International Law Status of the Right to Receive Asylum

by William Worster

Clearly a state has a right to expel aliens generally, and a state has a right to grant asylum to aliens, but the... more Clearly a state has a right to expel aliens generally, and a state has a right to grant asylum to aliens, but the question is whether an individual has a right to asylum opposable to the state’s right to expel. In the literature, it is commonly understood that no such right exists. Treaty obligations discussing a “right to asylum” are understood in various ways, generally not to provide for a right to receive asylum but apply for it. However, the past few decades have shown a growth in conventions addressing asylum, especially, but not limited to, the European context. With refugee flows being an inherently international concern with a need for durable solutions, increasingly refugees are being assimilated to refugee-seekers. States are reacting or anticipating these issues by adopting domestic rights to asylum, at least for individuals qualifying as refugees. These trends suggest an evolving international consensus on opinio juris and state practice that refugees must receive asylum. Thus, it appears that the right to asylum for refugees exists under
customary international law.

The paper will proceed broadly in two sections viewing the issue from different perspectives. In the first section, the paper will begin by examining the “right to asylum” from the perspective of
the states, the authors of the Refugee Convention and similar agreements. The paper will conclude that the “right to asylum” in those agreements is directed at states, not individuals. In essence, states have a right vis-à-vis other states to grant asylum to aliens and not have that act be viewed as hostile.

However, this right of the state does not necessarily exclude a right of individuals to receive asylum if convention or customary international law also demand it. Accordingly, the second section examines the right of the individual to receive asylum. In the first sub-section, the author looks at conventional law and in the following sub-sections he looks at customary international
law, specifically state practice and opinio juris. In the conclusion, the author argues that, although there is a state right to grant asylum, there is also an individual right to receive it in certain circumstances. This conclusion is based on widespread and consistent practice granting asylum as an obligatory consequence of refuge.

Comparative Rights - International and Regional Human Rights Instruments: Matrix Tool

by Simon de Saint-Claire

Practical training application of Human Rights in Law (International, Regional, Local) - simply fill in the relevant field and match it to the local law.

The Constitutionality of the Taxation Consequences for Renouncing US Citizenship

by William Worster

Individuals that renounce their U.S. citizenship are held to a special taxation regime as a consequence for their... more Individuals that renounce their U.S. citizenship are held to a special taxation regime as a consequence for their expatriation that is unique in the world and, this article will argue, unconstitutional. Originally, renunciation of citizenship was seen as the ultimate income tax reduction device, but this option has now lost much of its attractiveness as Congress has passed “exit tax” provisions that impose a tax liability on individuals who have renounced U.S. citizenship similar to that imposed on U.S. citizens.

This article will argue that, as it currently stands, the exit tax is not constitutional because it is not narrowly tailored to achieve a compelling government interest and must be judged at that standard because it infringes on the fundamental right to expatriate and discriminates based on national origin.

European Court of Human Rights: An absolute ban on deportation to countries where torture or ill-treatment is a genuine risk.

by Gianluca Gentili

published on the International Journal of Constitutional Law (I.Con) - 8 I.CON 311 (2010)

In Saadi v. Italy, the Grand Chamber of the European Court of Human Rights (ECtHR) unanimously reaffirmed the absolute... more In Saadi v. Italy, the Grand Chamber of the European Court of Human Rights (ECtHR) unanimously reaffirmed the absolute character of the prohibition of torture and inhumane or degrading treatment or punishment provided by article 3 of the European Convention on Human Rights (ECHR). In the case at issue, the ECtHR held that the decision of the Italian government to deport a suspected terrorist to Tunisia—where he would have faced a “real risk” of torture—would have resulted in a violation of article 3 ECHR. This note presents the facts surrounding the case and analyzes the main issues addressed by the decision, with reference to the arguments presented by the parties and interveners before the Court. Despite the express prohibition in article 15(2) of the ECHR of any derogation to article 3, the Court’s decision is, nonetheless, of major importance in light of the claims advanced by several states since September 2001 that, in the effort to provide a more secure environment for citizens and to fight international terrorism, the protection of some fundamental rights should be balanced against national security concerns. The Court rejected these claims and strongly reaffirmed the principle that no circumstance, including the threat of terrorism, can justify exposing an individual to the risk of serious human rights mistreatments. The principles reaffirmed in Saadi have recently found application in Ben Khemais v. Italy, where the ECtHR addressed in further detail the persuasiveness of diplomatic assurances when ascertaining whether there is a real risk of ill-treatment in the receiving country.

SUSMA HAKKI (RIGHT TO SILENCE)

by S.Sinan Kocaoglu

Ceza muhakemesinin en önemli haklarından birisi olan "susma" ile ilgili bir bilimsel çalışma... Ceza muhakemesinin en önemli haklarından birisi olan "susma" ile ilgili bir bilimsel çalışma...

Do the values that are called “human rights” have independent and universal validity, or are they historically and culturally relative human inventions?

by Aljaž Jelenko

Freedom of Speech in Berlin- Past and Present

by Debora Scatena

This has been published on Vol. 1 No. 2; September 2011 of the International Journal of Business, Humanities and Technology , but it was written a year ago. Here again, if you like to notice I try to join my 3 passions: law,communication and German film.

Universal Human Rights and Non-Western Normative Systems: A comparative analysis of violence against women in Mexico and Pakistan

by Silvie Bovarnick

Published in the Review of International Studies. (33): 59-74.

Abstract:

How universally useful are human rights in addressing violence against women? This paper... more Abstract:

How universally useful are human rights in addressing violence against women? This paper addresses this question by looking at the link between gender, ethnicity and human rights to uncover the complexities that underpin current debates about universal justice and multiculturalism. While my discussion of rape in Mexico and Pakistan illustrates significant particularities with respect to how violence against women is constituted in these different cultural contexts, it also shows that culturally specific manifestations of violence against women often share striking similarities in the way that they are allowed to persist, justified and made invisible. As such, they are part of a global mechanism that reproduces gender subordination in a predominantly patriachial world.

La Carta sociale europea tra enunciazione dei diritti, meccanismi di controllo e applicazione nelle corti nazionali. La lunga marcia verso l'effettività

by Federico Oliveri

Il testamento biologico: le problematiche giuridiche connesse con il rifiuto delle cure. Una panoramica tra Stati Uniti e Italia

by Flavia Marisi

The Value Theory of Democracy

by Corey Brettschneider

Politics Philosophy Economics October 2006 vol. 5 no. 3 259-278

Liberal political theorists often argue that justice requires limits on policy outcomes, limits delineated by... more Liberal political theorists often argue that justice requires limits on policy outcomes, limits delineated by substantive rights. Distinct from this project is a body of literature dedicated to elaborating on the meaning of democracy in procedural terms. In this article, I offer an alternative to the traditional divide between procedural theories of democracy and substantive theories of justice; I call this the ‘value theory of democracy’. I argue that the democratic ideal is fundamentally about a core set of values (political autonomy, equality of interests, and reciprocity) with both procedural and substantive implications. Further, I contend that limits on policy outcomes can be newly understood as part of the democratic ideal.

Rey Ty. (1997). The human rights debate in the Southeast Asian region: Universality vs. cultural relativism. INEF Report, 23, 3-14. (Germany).

by Rey Ty 鄭文華 (郑 文华)

Rey Ty. (1997). The human rights debate in the Southeast Asian region: Universality vs. cultural relativism. INEF... more Rey Ty. (1997). The human rights debate in the Southeast Asian region: Universality vs. cultural relativism. INEF Report, 23, 3-14. Institut für Entwicklung und Frieden der Gerhard-Mercator-Universität-GH-Duisburg zur wissenschaftlichen Begleitung der Stiftung Entwicklung und Frieden. Gesamthochschule Duisburg. Heft 23/1997. (Institute for Development and Peace at the Gerhard-Mercator-University-GH-Duisburg for the scientific support of the Foundation for Development and Peace. Gesamthochschule Duisburg. Issue 23/1997).

Rey Ty. (1997). The human rights debate in the Southeast Asian region: Universality vs. cultural relativism, pp. 3-14. In INEF Report: Controversies on the universality of human rights and the conditionality of aid. Franz Nuscheler, Ed. Duisburg, Germany: Gerhard-Mercator-Universität. Gesamthochschule Duisburg.

by Rey Ty 鄭文華 (郑 文华)

See http://inef.uni-due.de/page/documents/report23.pdf and http://inef.uni-due.de/cms/files/report24.pdf

From the 1960s to the 1980s, countries of Southeast Asia could be classified as shifting from communism, authoritarian... more From the 1960s to the 1980s, countries of Southeast Asia could be classified as shifting from communism, authoritarian dictatorship, semi-democracy to democracy, what with the demise of the erstwhile Soviet Union. Coup attempts, bureaucratic politics, and military regimes seem to be on the wane, while the institutionalization of democracy seems to be on the rise.

Furthermore, there is a changing relationship between society and development that has great political consequences. We
are in the midst of turbulent changes in the post-communist period. The Association of Southeast Asian Nations (ASEAN)
does not remain untouched.

Analysts argue as to whether industrial modernization (market) has some correlation with political modernization (which includes democratization and human rights).

Historical Indigenous Peoples' Land Claims

by Jeremie Gilbert

Published in International & Comparative Law Quarterly (2007), 56 : 583-611 Cambridge University Press

Within common law systems a body of jurisprudence has developed according to which indigenous peoples’ land rights... more Within common law systems a body of jurisprudence has developed according to which indigenous peoples’ land rights have been recognized based upon historical patterns of use and occupancy and corresponding traditional land tenure. Looking at the emerging common law doctrine on Aboriginal or Native title, this article examines how legal institutions are building a theory on historical land claims through the recognition of indigenous laws deriving from prior occupation. The article analyses how the common law doctrine build a bridge between past events and contemporary land claims. The aim of this article is to examine to what extent the common law doctrine proposes a potential model for the development of a legal theory on the issue of indigenous peoples’ historical land claims. In doing so the article analyses how the common law doctrine compares with international law when dealing with historical arguments by focusing on issues of intertemporal law and extinguishment.

The First Constitution: Rethinking the Origins of Rule of Law and Separation of Powers in Light of Deuteronomy

by Bernard M. Levinson

Cardozo Law Review 27:4 (2006): 1853–1888.

This article demonstrates the overlooked contribution of the ancient Near East to the development of constitutional... more This article demonstrates the overlooked contribution of the ancient Near East to the development of constitutional law. The legal corpus of Deuteronomy provides a utopian model for the organization of the state, one that enshrines separation of powers and their systematic subordination to a public legal text—the “Torah”—that delineates their jurisdiction while also ensuring their autonomy. This legislation establishes an independent judiciary while bringing even the monarch under the full authority of the law. Deuteronomy’s implicit model for a political constitution is unprecedented in legal history. Two of its cornerstones are fundamental to the modern idea of constitutional government: (1) the clear division of political powers into separate spheres of authority; and (2) the subordination of each branch to the authority of the law. This legislation was so utopian in its own time that it seems never to have been implemented; instead, idealism rapidly yielded to political pragmatism. Nonetheless, Deuteronomy’s draft constitution provides an important corrective to standard accounts of constitutional legal history.

Keywords:
Constitutional thought; rule of law; separation of powers; Deut 16:18-18:22; Laws of public officials; Law of the king; Deut 17:14-20; Ämtergesetze; Verfassungstheorie; Torah monarchy; Sophocles Antigone law; Herodotus Demaratus; Greek kingship; Mishnah King; mishnah Aboth 1:1; American constitution; Josephus πολιτεία [politeia]; origin of judicial system; Hammurabi; founding myth; independent judiciary.

International Human Rights Law and Constitutional Rights: In Favour of Synergy

by Fiona de Londras

(2010) 9(2) International Review of Constitutionalism 307

This paper is concerned with demonstrating the capacity of international human rights law and domestic constitutional... more This paper is concerned with demonstrating the capacity of international human rights law and domestic constitutional law to have a synergistic relationship that is focused on the ways in which the two sets of standards can be harmonised rather than on questions of ‘superiority’ and ‘inferiority’. Conceiving of the relationship between the two bodies of law in this way requires us to recognise their shared dignitary core and the optimal effect of international human rights law, namely effective rights-protection at the domestic level with international law playing a subsidiary role. This paper uses the example of LGBT rights in European Convention on Human Rights jurisprudence to demonstrate such a synergistic relationship and argues that such a relationship is possible as between US constitutional law and international human rights law notwithstanding some prima facie barriers thereto.

African Narratives and American Justice: Merging Law and Culture in Past FGC-based Asylum Claims

by Josh Labove

presented at Association of Public Policy Analysis & Management Conference, 2010

Menschenrechtsschutz, Provinzpolitik und westliche Institutionen im heutigen Rußland: Beobachtungen am Rande einer Konferenz in Jekaterinburg im April 2001

by Andreas Umland

Osteuropa-Recht, vol. 48, no. 1 (2002), pp. 1-27.