To send content items to your account,
please confirm that you agree to abide by our usage policies.
If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account.
Find out more about sending content to .
To send content items to your Kindle, first ensure email@example.com
is added to your Approved Personal Document E-mail List under your Personal Document Settings
on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part
of your Kindle email address below.
Find out more about sending to your Kindle.
Note you can select to send to either the @free.kindle.com or @kindle.com variations.
‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi.
‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.
This introductory chapter situates the phenomenon of backlash against the international justice regime within a larger debate about the retrenchment of liberal democratic norms. This chapter considers how international courts gain their authority and contends that international human rights and criminal courts enjoy structural, adjudicative, and moral authority over states and political elites. It is precisely these sources of authority, however, that are the targets of backlash. The chapter goes on to provide a definition of backlash politics, suggesting that backlash is action – not just rhetoric – targeted at the authority of international courts. The chapter then puts that definition into practice by providing a typology of backlash, which includes: (1) withdrawals from international courts; (2) the creation of alternate/substitute justice mechanisms; (3) bureaucratic and budgetary restrictions; and (4) doctrinal challenges. The chapter concludes with a roadmap for the rest of the book.
The concluding chapter of Saving the International Justice Regime identifies how scholars, activists, stakeholders, and supporter states can help to save the international justice regime. It identifies three main ways to bolster international justice: (1) managing public opinion by engaging in targeted and effective self-marketing campaigns as a way to make their case to a broader audience; (2) improving the rule of law and the functioning of the tribunals as judicial institutions; and (3) reaffirming the fundamental norm(s) of criminal accountability and human rights. The chapter concludes with a discussion of a future research agenda based on the definition, typology, and theoretical framework set out earlier in the book.
The chapter traces the historical origins of the right to life from antiquity to the modern era. It encompasses the Code of Hammurabi and the American Declaration of Independence as milestones along a long road.
The Presidential Regulation No. 125 of 2016 concerning the Treatment of Refugees (PR) was a promising step to a better humanitarian response for refugees and asylum seekers arriving in Indonesia. It also provided a much-needed legal framework to validate refugees’ presence and to ground civil -society organizations’ advocacy on their behalf. However, a closer look at the PR and earlier drafts of the document shows serious compromises that: (1) reproduce the notion that refugees are only transiting in Indonesia; (2) frame refugees as passive objects, failing to recognize them as subjects with rights; and (3) prioritize security concerns that position refugees at odds with Indonesian society (masyarakat). Using the “What’s the Problem Represented to be” approach, this article highlights what is included and excluded from the PR and how it falls short of guaranteeing meaningful protection for refugees while living in Indonesia.
This chapter analyzes the role of states in framing the scope and applicability of human rights protections. The limited perspective of the sovereign has constructed an ostensibly universal system that prioritizes the state power while erasing migrants’ interests. Migrants are of course protected by basic international human rights that attach to all people regardless of migration status. Yet, when it comes to rights that would impinge on the sovereign’s ability to control its borders, such as the right to enter, the right to safe transit, and even the right to remain, international law falls silent. This flaw at the conceptual core of human rights contributes to contemporary migration-related challenges and demands radical rethinking. In the face of widespread anti-immigrant sentiment, it is hard to imagine states ceding power to protect migrants. Nevertheless, a new human rights treaty focused on migrants rather than states could open up political space in interesting ways. Though not law in the traditional sense, the process could convene a variety of groups from civil society to corporations to diaspora to transnational families. A representative catalogue of migrants’ rights could help frame the debate, persuade the public, and focus activist energies in lobbying states for change.
Chapter 3 traces the historical origins and evolution of legal debates on the ‘protection of the environment in relation to armed conflict’. It examines legal developments and interpretive efforts of scholars to expand the reach of the traditional jus in bello to account for conflict-related environmental degradation and ‘illegal’ resource exploitation, until the more recent attempts to look beyond the laws of armed conflict and war crimes into IEL and HRL. By charting the different formulations of environmental destruction/exploitation in rules governing war, this chapter sheds light on the changing ideas on the relationship between nature, conflict, and humanity, and the problems/possibilities with ongoing conversations in the field.
This chapter defines noncitizens as those who must live out their lives despite the states with most power over their lives, and despite the international system of states. Such individuals may also be citizens. That is, noncitizenship and citizenship are not opposites. They are instead two modes of relating to a state. This chapter argues that those experiencing the world as noncitizens have special and specific claims deriving from the significant additional burden placed upon them by the functioning of the states with most power over their lives, and by the international system. In practice, the rights of those in a noncitizen relationship with a state are often overlooked. People are often asked to demonstrate some special relationship with a particular state even in order to access the most basic of human rights. Usually this relationship must either be citizenship or some approximation to citizenship. This chapter argues that citizenship is not the only way in which an individual can have a relationship with a state, and that noncitizenship also gives rise to special and specific claims. Individuals should not be forced to contort themselves into something citizen-like in order to be considered eligible for rights.
This chapter examines contemporary anti-immigrant practices around the globe. We argue that apartheid as an ideology that distributes resources and privileges according to place of birth, race, and ethnicity of immigrants, persists. We also demonstrate how, under this new global organization, immigrants are vulnerable in their own countries due to the neoliberal practices imposed by unfair relations between the Global North and the Global South. We illustrate how, as a result of unequal relations between north and south and restrictive migration policies, immigrants are highly vulnerable during their journey and when they eventually arrive at their destinations. Global apartheid promotes racial inequities and violates basic norms of justice, human rights, democracy, and racial equality. These practices create islands of wealth where only certain groups can enjoy privileges and rights. This paradigm is based on the presumption that privileges and resources can be allocated according to place of birth, race, and ethnicity.
States deny many basic rights to non-citizens within their borders, and international law imposes only limited duties on states with respect to those fleeing persecution. Furthermore, even those limited rights previously enjoyed by non-citizens are eroding in the face of rising nationalism, populism, xenophobia, and racism. This book explores what obligations we owe to those outside our political community. Drawing on contributions from a broad variety of disciplines, the volume considers the failures of law and politics to guarantee rights for the most vulnerable and attempts to imagine new forms of belonging grounded in ideas of solidarity, empathy, and responsibility in order to identify a more robust basis for the protection of non-citizens at home and abroad.
Chapter 6 illustrates how ‘truth-seeking’ bodies, the TCs in Sierra Leone, Liberia, and Timor-Leste, selected and reconstructed the facts of resource-driven wars, particularly their underlying causes and dynamics, as well as the responsibility for harms caused by extractive activities. The chapter also shows how different legal regimes were mobilised in support of the ‘truth’ produced by the three institutions, by identifying three paradigms of responsibility: the state-centered perspective of the Sierra Leonean TC, with its focus on local mismanagement and the need to reform resource governance; the economic crimes lens of the Liberian TC, which sought to hold business actors/public officials accountable for resource plunder and related atrocities through prosecution and vetting; and the socio-economic rights approach of the Timor-Leste TC, resulting in the recognition of breaches to the collective rights of the Timorese people to self-determination and recommendation of ecological restoration. Each paradigm captures and misses something about these conflicts and is associated with different reactions by relevant stakeholders to the findings/recommendations of the three TCs.
Harsh migration enforcement has sparked courageous humanitarian reactions and hundreds of criminal prosecutions. Such prosecutions ostensibly seek to vindicate the power of governments to control nation-state borders. But they seem, ironically, to have achieved the opposite: They have vindicated, reinvigorated – and even inspired new forms of – basic human rights. This chapter examines three cases: Cédric Herrou, a French olive farmer who was criminally tried for assisting unauthorized migrants in France; German “rescue” ship captains, Carola Rackete and Pia Klemp, prosecuted for rescuing distressed migrants at sea and bringing them to Lampedusa, Italy; and Scott Warren, prosecuted after allegedly providing food, water, beds, and clean clothes to undocumented immigrants in Arizona. The verdict in Herrou’s case was overturned because fraternity was recognized as a constitutional value. Captains Klemp and Rackete appealed to the ideal of “solidarity.” Warren’s attorney intoned to the jury, “Being a good Samaritan is not against the law ….” These encounters implicate deep questions of constitutional legitimacy and migrant rights, involving the presence of migrants with definable – if not yet enforceable – rights claims. They illustrate a dynamic process of mediating tensions between “sovereign” power and human rights, an essential revitalizing project for constitutional democracy and human rights law.
The final chapter brings together the main findings and arguments of the book, identifies its broader implications, and formulates some ideas for future research. Building upon insights from political ecology, it suggests that a useful way forward is through reframing questions away from assuming fatalistic relationships between nature and conflict, and starting to ask questions that illuminate the broader social/political/economic dynamics involved. By considering how different environmental injustices play a role in shaping contemporary conflicts, international law scholarship may also expose and challenge the utilitarian/instrumental view of nature that underpins the field. If environmental ‘scarcity’ and ‘abundance’ are not external factors leading to conflict, but the outcomes of socio-economic processes, often linked to historical grievances and unequal power relations, entirely different notions of justice, peace, and security are needed.
Though months have passed since the Trump administration ruthlessly enacted a “zero tolerance” family separation policy at the US–Mexico border, punitive deterrence policies remain the dominant governmental response to humanitarian emergencies. These policies violate longstanding constitutional values and institutional norms as well as national and international legal obligations to non-citizens. This chapter outlines these obligations; details the inhumane, futile, and violative policies deployed by the Trump administration to block or otherwise deter the entry of humanitarian migrant children and families; and proposes several alternatives to achieve a more equitable, effective, efficient, and law-abiding immigration policy. Key recommendations include increasing regional economic and civic collaboration; reinstituting supervised family release and legal representation to families and unaccompanied children; establishing special immigration policies that prioritize credible and well-regulated refugee status reviews particularly for children and families fleeing violence and persecution; expanding refugee resettlement programs at the federal, state, and local level; and subsidizing scholarship programs for at-risk children and adolescents. Reforms that protect the health and human rights of non-citizens not only advance equity, but also benefit the economic, social, and political interests of United States.
This article explores the impact of the COVID-19 pandemic on vulnerable people in South Africa in the specific context of poverty and inequality. It does so by first looking at the conceptual context and then highlighting the extent of the impact both from a constitutional and human rights context and from a legislative context. It uses the poor and vulnerable as a proxy to explore the impact of the pandemic (and the measures put in place to contain it) on the specific constitutional rights of vulnerable people, before suggesting a human rights-based approach to managing the pandemic. It concludes that, despite the South African government having undertaken some of the actions recommended, there remains room for improvement and scope for further research, as the pandemic is expected to continue for some time.
After briefly sketching common-morality principlism, as presented in Principles of Biomedical Ethics, this paper responds to two recent sets of challenges to this framework. The first challenge claims that medical ethics is autonomous and unique and thus not a form of, or justified or guided by, a common morality or by any external morality or moral theory. The second challenge denies that there is a common morality and insists that futile efforts to develop common-morality approaches to bioethics limit diversity and prevent needed moral change. This paper argues that these two critiques fundamentally fail because they significantly misunderstand their target and because their proposed alternatives have major deficiencies and encounter insurmountable problems.
The chapter introduces some key terms used throughout the book before offering an outline of the overall argument in favour of the environmental minimum: it is intended to serve both as a primer and a convenient reference point for the following chapters. The core contribution of the environmental minimum is that it translates general and abstract committments to human rights and environmental protection into specific and practical measures to protect the environment. The normative argument for the environmental minimum framework centres on its consistency and compatibility with the normative claims of environmental human rights, and its alignment with fundamental legal principles. What renders the environmental minimum preferable to other conceivable incarnations of environmental human rights is its practical and incremental approach. Crucially, the framework only becomes operational if rightsholders succeed in establishing a specific risk to a human right under an existing protection regime. Thus, the environmental minimum is in principle compatible with the doctrinal position adopted under the examined international and domestic protection regimes, most notably the ECHR.
Mohamedou Ould Slahi’s memoir, Guantánamo Diary, demonstrates the potential of testimonial memoir as a global genre to introduce new voices and geopolitical contexts into world literature. It is exemplary for showing how older traditions of testimony are being refashioned in an era of human rights, global English and memoir, to create new variations adapted to the contemporary world. At the same time, recognizing the material, linguistic and rhetorical conditions that have facilitated the publication and reception of Guantánamo Diary, and that have catapulted it to the New York Times bestseller list, should prompt questions about the limits that shape the form and reception of testimonial memoir today. In this chapter, I place Guantánamo Diary in a tradition of literary testimony including Holocaust testimony and Latin American testimonio, identifying resonances with these precursors. Through a close reading, I argue that Slahi’s distinctive style is characterized by opposing tendencies. On the one hand, his narrative is transnationally haunted by a global canon circulating through it, with sounds of Kakfa, Primo Levi, slave narrative and Mauritanian folktales. On the other hand, his English is miniaturized and Americanized. These tensions shadow a tension in the field of world literature. While some critics insist on studying literature in its original language, the linguistic, rhetorical and material conditions that propel a text such as Guantánamo Diary to the bestseller list suggest the ways in which ‘global English’ is naturalised as the language of world literature and of global testimony.
The chapter argues that a commitment to human rights necessarily entails basic environmental protection duties as a matter of political morality. This is because egregious forms of environmental harm critically undermine the fundamental values that underpin human rights, chiefly human dignity and autonomy. Human rights must therefore contain a sub-category of protections which we can conceptualise as environmental human rights. The human interests that environmental human rights protect are the environmental conditions necessary for the preservation and flourishing of human life, namely clean water, food, air, and soil within a functioning ecosystem that includes diverse species of plants and wildlife. Those who challenge these rights as vague overlook the significant room for agreement in the pursuit of a comprehensive and universal notion of a ‘sound’ environment. Meanwhile, converns over potential conflicts with other rights are overstated, because balancing of competing interests is a pervasive and well-established feature of human rights law and contemporary environmental regulations are already being challenged on the basis of competing rights, for instance to property.
In February 2020, the Supreme Court of Canada rendered a decision—Nevsun Resources Ltd. v. Araya, 2020 SCC 5—that can properly be described as revolutionary. In Nevsun, the court found that a Canadian corporation operating in a host state, Eretria, could be liable under Canadian domestic law for human rights abuses committed in Eritrea under customary international law, as incorporated into Canadian domestic law. The decision merits special attention because it is likely to fundamentally change the relationship between foreign investors, host states and the residents of host states adversely affected by investors’ unlawful conduct which amount to modern slavery.
This special section tells the story of Covid-19 through the lens of national responses, serious concerns about unprecedented human rights limitations and infringements, and the respective role of courts in public health emergencies. It compiles perspectives on disease control developments in Brazil, Italy, Poland, Taiwan, the U.S., and the EU to explore various aspects of judicial review protecting, or failing to protect, human rights. It offers insights from states and regions which have experienced high pandemic rates or may attract attention for not treating human rights as a priority. Amidst the crisis of multilateralism and the World Health Organization (WHO) authority, and the fact that public health is typically a national power, the Articles focus on the state-level analyses to inspire comparative findings and further research. The section also draws on diversity and transdisciplinarity. The contributions are authored by scholars specializing in wide-ranging areas of law, including constitutional, health, private, and human rights law, as well as in political philosophy and public health. This text introduces the special section by offering a broader picture of the human rights’ problématique in times of pandemics.