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Water is the lifeblood of human beings and society, but threats to water, such as the pollution of rivers, cyber crimes, and attacks against water infrastructure, are increasing. In green criminology, scholars have relied on domestic criminal law to develop the concept of crimes against water. This paper argues that international law could provide several frameworks for addressing these crimes. A number of international treaties and customary rules deal directly or indirectly with crimes against water, and the United Nations Security Council has also dealt with crimes against water committed by terrorist groups and parties to armed conflict. Crimes against water may represent violations not only of domestic criminal laws but also of international humanitarian law and human rights law.
The chapter traces the origins of human dignity, showing how it was originally used to denote titles of honor but is now seen as a universal human right or as undergirding universal human rights. In the context of discussing dignity rights, the chapter highlights international human rights treaties and national constitutions making refeerence to the concept of human dignity, which, in modern usage, has to do with the inherent worth of a life. The chapter discusses how human dignity is the foundation for many human rights, including the right to life, the right to be free from torture and other forms of cruelty, and the right to be free of discrimination. The chapter describes existing jus cogens norms prohibiting various acts that violate fundamental human rights, concluding that the death penalty must be abolished because it makes use of credible death threats, inflicts psychological torture, and violates an array of basic human rights. The chapter details how non-lethal corporal punmishments have already been abandoned and how the death penalty has been abolished or curtailed in many countries, with international criminal law tribunals precluding the death penalty's use.
The Introduction gives a snapshot of the current status of capital punishment around the globe. It gives current statistics from Amnesty International and describes Amnesty International's anti-death penalty campaign in the 1970s that led to the Declaration of Stockholm, which expressed "total and unconditional opposition to the death penalty." The Introduction describes the divide between retentionist and abolitionist countries, highlighting countries that have outlawed capital punishment in their constitutions or through judicial rulings. After detailing how the death penalty was traditionally seen as something other than torture, the Introduction discusses the law's evolving nature--and how the death penalty is increasingly seen as a torturous and cruel punishment that violates human dignity and fundamental human rights. Noting that death sentences are no longer treated as a "lawful sanction" in many locales, the Introduction describes how the U.N. General Assembly has voted on multiple occasions for a global moratorium on executions. The Introduction summarizes the current state of international law as regards capital punishment and previews the book's content.
This chapter traces the history of the world's anti-death penalty movement, noting how countries moved away from punishments such as breaking on the wheel and burning at the stake and how capital punishment has been abolished or curtailed in various countries and American states. After taking note of early successes of the abolitionist movement, the chapter discusses abolitionist efforts over time, including in the Progressive Era and in the post-World War II period (e.g., in Europe and the Americas). In particular, the chapter discusses American states (i.e., Michigan, Wisconsin and Rhode Island) that abolished capital punishment before the American Civil War, and describes how West Germany outlawed capital punishment in its constitution in 1949. The chapter discusses how international human rights law has evolved in the post-World War II period, with capital punishment coming under increased scrutiny and protocols to international and regional human rights conventions (e.g., the Second Optional Protocol to the International Covenant on Civil and Political Rights, Protocols 6 & 13 to the European Convention on Human Rights) abolishing or restricting the death penalty's use.
The Death Penalty's Denial of Fundamental Human Rights details how capital punishment violates universal human rights-to life; to be free from torture and other forms of cruelty; to be treated in a non-arbitrary, non-discriminatory manner; and to dignity. In tracing the evolution of the world's understanding of torture, which now absolutely prohibits physical and psychological torture, the book argues that an immutable characteristic of capital punishment-already outlawed in many countries and American states-is that it makes use of death threats. Mock executions and other credible death threats, in fact, have long been treated as torturous acts. When crime victims are threatened with death and are helpless to prevent their deaths, for example, courts routinely find such threats inflict psychological torture. With simulated executions and non-lethal corporal punishments already prohibited as torturous acts, death sentences and real executions, the book contends, must be classified as torturous acts, too.
Social memory studies start from the premise that people acquire their memories not only through individual means, but through social processes as well. Social groups often provide materials for memory, and prod individuals into recalling particular events. One of the distinctive differences between the practice of the Inter-American Court of Human Rights (IACtHR) and the European Court of Human Rights (ECtHR) concerns memory-related remedies. While the IACtHR quite frequently orders respondent states to commemorate grave violations of human rights (including the construction of monuments), the ECtHR has refrained from granting such commemorative remedies. Some organizations representing victims have called upon additional tribunals to embrace the IACtHR’s remedial approach to address grave breaches of international law. Drawing on social memory scholarship, this study is aimed at empirically assessing the impact of four sites of memory in Colombia established by order of the IACtHR. The study’s findings suggest that international tribunals alone cannot shape collective memories that are inconsistent with sociocultural features characterizing the local society. On the other hand, judicially-ordered sites of memory are meaningful for the victims’ families and small-scale social units. These findings turn our attention to micro-level sociological perspectives, and particularly to the symbolic-interactionist approach to international law, highlighting the vital symbolic role of international tribunals for individuals and small social units. The valuable role of such memorial sites for the victims’ relatives and related communities suggests that international tribunals addressing grave human rights violations should consider granting commemorative remedies.
This contribution analyses Article 12 of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa (the Protocol). It examines the purpose, scope and contribution of this Article to the legal protection of persons with disabilities in armed conflict and its implementation. The analysis is divided into four parts. The first part will start by identifying and analysing the background to this provision, which provides specific protection to persons with disabilities in armed conflict. The second part will examine Article 12 in the light of other similar regional instruments and of the protection challenges that persons with disabilities face during conflict. This will highlight the specific nature of the Article's provisions, together with its shortcomings and its progressive aspects. Part three will look at the interaction between Article 12 and equivalent rules of international humanitarian law, and how Article 12 contributes to the development of legal protection for persons with disabilities in armed conflict. Finally, the fourth part will examine the challenges to the implementation of Article 12. It will also propose ways of overcoming those challenges and hence of enabling Article 12 to have its intended effect.
In armed conflicts and crises, children with disabilities face serious threats to their lives and safety, including those related to their inability to flee attacks, risk of abandonment, lack of access to assistive devices, lack of access to basic services and denial of education as well as experiences of stigma, abuse, psychological harm and poverty. Children with disabilities experience multiple and intersecting forms of human rights violations based on their disability and age. Since 2015, Human Rights Watch has documented the impact of armed conflict on children with disabilities in Afghanistan, Cameroon, the Central African Republic, the Gaza Strip in the Occupied Palestinian Territory, South Sudan, Syria and Yemen. While international human rights specifically call for the protection of children with disabilities in situations of armed conflict, the United Nations, governments, parties to the conflict and humanitarian actors have long neglected their specific rights and needs. There is an urgent need for the United Nations and governments to increase efforts to protect children with disabilities as part of their international commitments to protect all children impacted by hostilities. Their attention and investment in those most at risk of violence during armed conflicts will in turn enhance protection measures for everyone.
This chapter explores the different levels at which proportionality intersects with and shapes criminal law. Proportionality has been always important in the field but its impact increases if we approach the frontiers of penal intervention from the principles that inform an equalitarian understanding of the law – a central project in contemporary Latin America. The chapter shows the relevance how judgments of excess or defect based on proportionality shape the contours of criminal policy, criminal doctrine and the theory of criminal responsibility, criminal procedure and criminal punishment While exploring these different levels with Latin American social and political backgrounds in mind, and bringing inter-American doctrine into the analysis, the chapter also invites future, broader analysis about how the uses of proportionality in the domains of criminal and human rights law can illuminate and complement each other.
Climate litigation in the Global South is a novel and increasingly prominent phenomenon that prompted a first wave of scholarly work examining and systematizing its main features. Despite the rigour that these academic accounts apply to assessing the main legal arguments of both litigants and courts, they fail to address the possible tensions between climate justice and the consequences of a domestic court decision in developing nations that did not substantially contribute to the climate crisis. This piece aims to fill that gap by using case law from the Global South to examine challenges around remedies, which will underscore the tensions between climate justice and litigation. Thereafter, this piece, drawing from international norms, advocates for the recognition of a duty of international cooperation, which can inform future courts’ orders in climate cases in both the Global North and the Global South. This normative exercise provides the basis to reconcile climate litigation in the Global South with climate justice, two reputed allies.
Proportionality analysis is considered a central tool for rights adjudication in contemporary constitutional law. Prevailing academic narrative explains its worldwide spread as a matter of legal migration. This chapter challenges this narrative through the analysis of Argentine constitutional practice. It reconstructs the different variants of proportionality scrutiny that have been applied by the Argentinian Supreme Court from the beginnings of the twentieth century, well before the development of the modern proportionality test by the German Constitutional Court, and surveys its role in the adjudication not only of civil and political rights but also social rights. It ultimately argues that constitutional practices in this domain are better explained under a paradigm of interaction, rather than under one of migration.
Human dignity plays an important role in the international legal order, and references to the principle can be found in various international human rights instruments. Its meaning, however, remains an object of avid discussion due to the impossibility of finding a precise and timeless way of defining the concept. In this article, we argue that acknowledging inherence as an element of human dignity gives extrinsic legal recognition to an intrinsic human condition and tends to expand human dignity’s influence. Vagueness — or openness — in defining the concept provides for a dynamic and evolutionary understanding of human dignity, and, coupled with the idea of inherence, these characteristics represent tools for universalization and adaptation of the concept to new circumstances. These findings are based on a review of philosophical discussions of the idea of human dignity, followed by an analysis of how it is addressed in international legal instruments and international jurisprudence and identification of its recurrent elements. We defend the view that the vagueness of its definition does not mean that its content is impossible to identify in particular circumstances. Scholars and institutions can have a concrete sense of the meaning of human dignity even though its substance may admit new elements as new social demands emerge. In our view, the essential meaning of human dignity is founded on the influence of the whole body of human rights as well as on its particular connection to the rights of social minorities, in which human dignity is emphasized because of the material precariousness of such groups under social systems that subject them to discriminatory treatment.
‘Practical’ approaches to human rights hold that analysis of legal human rights must attend to the practice(s) of international human rights law and that the nature and justification of international human rights is best determined by attending to their role(s) in international human rights law’s system of normative practices, not analogous moral rights outside it. These core tenets plausibly explain the apparent normativity of international human rights law despite controversies about the status of many ‘rights’ in the ‘International Bill of Rights’. Yet plausible practical approaches require clear and compelling accounts of which practices qualify as human rights practices. Most existing accounts view ‘responses’ to claims made in the name of the international legal community as key to the identification of human rights. Activities by domestic governments and non-governmental actors qualify as relevant practices. While understandable, these ‘responsive’ accounts of practice create more problems than they solve. This work accordingly promotes a largely unexplored account on which ‘human rights practices’ are strictly defined by international legal doctrine. This ‘doctrinal’ account of practice is most likely to maintain practical approaches to human rights’ potential benefits without generating an unduly expansive rights register or adopting strong theoretical commitments about the nature of law.
The coronavirus disease (Covid-19) has made it apparent that states have different capacities to detect, effectively respond to, and manage highly infectious diseases. Concomitantly, the resources necessary to support robust health systems are distributed inequitably, which inevitably places greater stress on societies with the most vulnerable health infrastructure. In 2005, the World Health Organization (WHO) found that health capacities were nowhere near “a path to timely implementation worldwide.” By 2013, well before the current Covid-19 pandemic, studies found that no African state had fully implemented their core health capacity requirements under the International Health Regulations of 2005. Indeed, many of the countries listed in the Global Health Security Index ranked as “least prepared” are in Africa, with Somalia and Equatorial Guinea appearing at the very bottom. The lack of capacity especially visible in African countries and elsewhere in the Global South is in part due to historical vulnerability from slavery, colonialism, neocolonialism, political instability, and conflict, as well as neoliberal reform policies like structural adjustment. This chapter analyzes the international obligations of capacity-building and cooperation in light of Covid-19.
This chapter considers dignity as a constitutional value in Hong Kong. The courts have invoked dignity in a small number of cases involving a limited assortment of rights. Overall this use of dignity has been uneven: while it has helped expand the scope of constitutional rights in some circumstances, dignity has functioned more restrictively in others. An examination of this jurisprudence allows for a reflection on debates about the role of dignity in comparative constitutional law more generally. Commentators have queried whether such a vague and imprecise term has any substantive meaning and whether it should be abandoned altogether. The chapter concludes that attention to context can mitigate these concerns about dignity’s indeterminacy and contribute to its development as a holistic constitutional value. The relevant context is both universal and local. It includes dignity’s position as a broad-based foundational principle in international human rights law across civil, political, economic, social, and cultural rights. It also depends on domestic factors such as a jurisdiction’s constitutional framework and empirical realities that impact the realization of dignity.
Chapter 7 presents the third of the three case studies: Killing the Individual Human Being via Drones. Here I look at targeted killings and the growing use of drones in this practice. The chapter offers a detailed discussion of the predominantly legal and ethical debate. In doing so, the chapter demonstrates the relevance of an analysis guided by insights from IR theory. But it also discusses legal questions concerning International Human Rights Law and International Humanitarian Law. The case study engages in detail with the general discourse on drone strikes and targeted killings and provides an in-depth analysis of specific strike types and drone strikes. The analysis demonstrates how the individual human being appears as an innocent civilian who should not be killed (if possible) or as a guilty terrorist who should be killed.
The year 2011 should have been a watershed for Mexican human rights. Mexico’s Supreme Court historically strengthened human rights protections by adopting progressive doctrines grounded in international law, the country modernized its criminal justice system, and civil society united in its calls for justice. Despite these changes, one decade later Mexico finds itself in an unprecedented human rights crisis. How do we understand the spectacular and tragically costly failure of Mexico’s judicial system to strengthen human rights protections and break patterns of impunity over the past decade? The chapter argues that this disconnect stems from two intersecting dynamics: first, the Mexican state’s historically weak, fragmented, federal nature has resulted in the institutionalization of mechanisms that enable impunity, in particular through the work of a powerful and unaccountable Ministerio Público that is able to selectively apply, or defy, the law. Second, socio-legal mobilization has not coalesced around demands for effective implementation of progressive jurisprudence or basic tenets of the rule of law. Instead, human rights litigation proceeds simultaneously on two distinct tracks: strategic litigation of a small number of paradigmatic cases connected to, or in relation with, the inter-American human rights system; and the advocacy and collaborative investigation of cases by small, state-based organizations. The patterns create a critical disconnect, where impunity remains rampant despite Mexico’s embracing of progressive human rights norms and principles.
Families often have particular vulnerabilities following armed conflict. As international humanitarian law focuses primarily on regulating the conduct of hostilities, its scope for addressing the vulnerability of families and other victims of armed conflict is, at present, conceptually and practically limited. A human security approach invites consideration of the shortcomings of existing legal frameworks in addressing vulnerability, and the development of such frameworks, in a manner that helps to build resilience and address threats. For families harmed during armed conflict, this means identifying features of the existing legal regime that operate in a manner that entrenches or fails to address their vulnerabilities, as well as structural challenges that hinder access to legal opportunities such as reparations. The article identifies several structural issues and features of the legal framework that overlook or entrench the vulnerability of families. Drawing on a human security approach, it suggests that supplementing the existing legal regime with a victim assistance framework could help to address the vulnerability of families and others harmed by armed conflict.
Over the last decade, there has been a spate of incidents in Canada and the United States involving Saudi Arabian nationals who, while out on bail for predominantly sexual crimes, were able to abscond from the countries despite having surrendered their passports. Investigation has revealed evidence supporting a reasonable inference that the government of Saudi Arabia has, in fact, assisted its nationals to escape on these occasions. This article makes the case that this kind of conduct amounts not just to unfriendly acts but also to infringements upon the territorial sovereignty of both states and serious breaches of the international law of jurisdiction. It surveys the possible remedies available to both injured states and, in light of the fact that neither state has sought any such remedy, examines possible remedial routes for the victims of the Saudi nationals’ crimes. It remarks upon the utter failure of either Canada or the United States to address these acts, concluding that such wilful neglect both corrodes sovereignty and undermines the will to address sexual crimes.
Under the International Health Regulations (IHR), States must consider decision-making criteria in applying travel restrictions during a public health emergency of international concern. Interpretation on the legal parameters of such restrictions varies widely. This article considers whether and how the permissibility of travel restrictions under the IHR may have changed given recent developments, including evolving scientific evidence about their efficacy and shifting World Health Organization (WHO) advice. It is argued that such determinations must conform to the principles of necessity and proportionality as articulated by the IHR, and must also be accompanied by the correlative IHR duties of collaboration and assistance rooted substantively in global solidarity.