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This chapter discusses the interpretation and application of the complex notions of necessity and proportionality, a cornerstone for any human rights adjudication and rights balancing exercise. Through an original and comprehensive analysis of the practice of the human rights bodies, this chapter shows the reader how these bodies managed to reach convergence on the interpretation and application of necessity and proportionality, despite all the impending factors.
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.
This chapter provides an overview of key judgments by international courts and tribunals dealing with environmental and human rights protection. It focuses mainly on regional human rights courts to show how environmental protection has been dealt with under these mechanisms. The objective is not to offer a comprehensive analysis of the environmental jurisprudence of these judicial mechanisms, but to signal how a specific synergistic and anthropocentric framing of environmental protection emerged in catalytic judgments. A particular narrative of how the protection of the environment would benefit human rights – especially the right to health, to life and to adequate living conditions or family life, as well as the right to private property and the right to (ancestral) land – was produced and consistently re-affirmed through judicial cross-referencing. This was done by pointing out how environmental harms and ecological deterioration and pollution directly hamper human rights, including those of indigenous peoples and cultural minorities. In so doing, courts played a pivotal role in strengthening environmental protection in relation to human concerns, thereby also consolidating a particular representation of how a protected environment serves human interests and needs. A specific anthropocentric and synergistic understanding of the human–environment is thereby enacted and reenforced.
Although the Korean understanding of human dignity as an abstract constitutional value is little different from that in other jurisdictions, the way it has been operationalized in Korean shows interesting nuances that will reward comparative analysis. The establishment in 1988 of the Constitutional Court of Korea opened a new era of constitutional jurisprudence on human dignity. This chapter features a critical analysis of the various ways in which the Court has interpreted the clause “dignity and worth as human beings” in the Korean Constitution. The Court seems to oscillate between, on the one hand, regarding the clause as an abstract general principle and, on the other, using it to derive concrete justiciable rights. The chapter then discusses the different modes of interaction between the constitutional ideal of human dignity and the larger social, political, and cultural milieu of modern Korea. The focus is on those cases in which human dignity grounded challenges to the constitutionality of certain rules and practices rooted in Confucian tradition. This chapter highlights the ongoing negotiation between Western liberal ideals and Korea’s local cultural norms and values.
International human rights law applies at all times to protect civilians, even though the status of civilian does not exist in the same way that it does under international humanitarian law (IHL). The law binds primarily States, which become party to human rights treaties; they are also bound by rules of customary human rights law. But the duty to respect fundamental human rights also applies to international organisations, including the United Nations, and arguably also to armed groups and corporate entities, as the chapter describes. The human rights duty to investigate suspicious deaths is also considered.
This chapter discusses the theoretical controversies surrouding the death penalty, the status of the death penalty under international human rights law, the death penalty in the United States and China. It also explores other cruel, inhuman, or degrading punishments including mass incarceration, life imprisonment, shackling, and solitary confinement.
This article discusses the findings of the European Court of Human Rights in the 2021 case of Georgia v Russia (II) in relation to the applicability of the European Convention on Human Rights to the conduct of hostilities. The article describes the arguments advanced by the Court to support the idea that the Convention does not apply to extraterritorial hostilities in an international armed conflict. In the light of past decisions, international humanitarian law, international human rights law, and the law of the treaties, it is argued that the Court's conclusion is unconvincing and the arguments seem to be based on extralegal considerations, rather than on a sound interpretation of the notion of state jurisdiction under the Convention.
General Comment 36 of the Human Rights Committee, adopted in 2018, asserts that ‘States parties engaged in acts of aggression as defined in international law, resulting in deprivation of life, violate ipso facto article 6 of the Covenant.’ One question about this claim is whether it reduces incentives for compliance with international humanitarian law for States and their agents—incentives provided through the principles of belligerent equality and combatant immunity. It is argued that it does not do so—such a worry about incentives is not a reason to reject the claim in General Comment 36. In the process, it can also be shown that, if accepted, this claim is interesting in another way: it entails, in effect, a duty on States to prosecute acts of aggression insofar as they entail killing, as they often will. This itself is doctrinally innovative. As to who is to be prosecuted, it is the political and military leadership of the State. It is their decision to wage war unlawfully that renders the killings arbitrary.
Current efforts to address the challenges faced by migrants at sea are not effective, as the attention is deflected to security measures for deterring people to leave their countries in the first place, rather than efforts to provide for an adequate search and rescue system which will preserve their rights and lives. This article puts an individual right to be rescued at sea on the legal map mindful of evolving migration challenges and the need to be responsive to human rights crises. By contextualizing philosophical theories that have shaped our understanding of the idea of human rights, it turns to examine the pathways in which rights on the horizon emerge and achieve full recognition. This article contends that irregular migration by sea necessitates normative change and activates an international dialogue on recognizing a right to be rescued at sea that will utmost challenge the boundaries of rights beyond national borders.
Chapter 5 delves into three additional cases of treaty interpretation by the human rights treaty bodies. The aim of the chapter is to probe the plausibility of the TLC concept across the human rights regime. I use insights and findings gathered from the drafting process of GC No. 15 to articulate a typology that distinguishes the treaty bodies by their likelihood to need external input when drafting GCs. Drawing on a combination of data – documents and existing scholarship, as well as interviews and personal observations – the case studies ultimately demonstrate the TLC concept to be applicable to drafting processes in other treaty bodies, even where their formation is less likely.
This article examines the redirection of incoming missiles when employed by defending forces to whom obligations to take precautions against the effects of attacks apply. The analysis proceeds in four steps. In the first step, the possibility of redirection is examined from an empirical standpoint. Step two defines the contours of the obligation to take precautions against the effects of attacks. Step three considers one variant of redirection, where a missile is redirected back towards the adversary. It is argued that such acts of redirection would fulfil the definition of attack under the law of armed conflict, and that prima facie conflicts of obligations could be avoided through interpretation of the feasibility standard embedded in the obligation to take precautions against the effects of attacks. Finally, step four analyzes acts of redirection against persons under the control of the redirecting State. Analyzing this scenario calls for an inquiry into the relationship between the relevant obligations under international humanitarian law and human rights law.
This chapter describes the duty of States to respect and protect the right to life in the context of assemblies, including demonstrations, marches, and protests. The right to assembly peacefully is a fundamental human right. General Comment 37 on the right of peaceful assembly, adopted by the United Nations Human Rights Committee in July 2020, is an important normative reference.
Foreseeable threats to life such as from accidents, disease, and natural disasters, demand both preventive and reparative action from the authorities, and such action must be of a minimum level of competence. The General Comment on the right to life issued by the African Commission on Human and Peoples’ Rights in 2015 stipulates that the African Charter demands that States act to protect life against threats from natural disasters, famines, and outbreaks of infectious diseases.
At the regional level, by far the most prolific in terms of jurisprudence is the European Court of Human Rights: between its first judgment on the right to life in September 1995 and through late November 2020, 3,875 judgments concerned the right, of which 476 were issued by the Court’s Grand Chamber. But the Inter-American Court of Human Rights has also made a significant contribution to our understanding of the scope and legal status of the right to life, while the African Commission on Human and Peoples’ Rights brought together learning at the regional and global level in an important General Comment issued in 2015. A major gap in regional human rights protection exists across Asia and the Pacific.
It is generally accepted that bodies corporate are, at the least, partial subjects of international law and enjoy a measure of international legal personality when they are party to an armed conflict, as that notion is understood by international humanitarian law. It is further unquestioned that the members of a private corporation may be held individually responsible under international criminal law for international crimes they have committed in the course of their work. This was made clear in judgments in the Nuremberg Military Tribunals that followed the end of the Second World War. Bodies corporate are also bound by jus cogens human rights norms, including the prohibition on arbitrary deprivation of life and on enforced disappearance.
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.
IDPs are especially vulnerable to human trafficking, to forced recruitment, to sexual violence, and to falling prey to landmines or unexploded ordnance. IDPs are far more at risk from explosive ordnance than are settled communities because they do not know which areas or which routes are safe and which are not. Some of the typical needs and protection risks that arise in internal displacement include family separation, loss of documentation, freedom of movement in and out of camps, loss of property, and further exposure to the risk of secondary or onward displacement. The United Nations Guiding Principles on Internal Displacement have not been turned into a legally binding instrument, although many of the Principles reflect customary law. The African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention) is the only continental treaty dedicated to the protection of IDPs.
This chapter considers whether, and if so, how, the right to life may be violated by pollution and, at the least, a wilful failure to seek to tackle climate change. A serious violation of international environmental law leading to death is ipso facto violative also of the right to life. This includes also the situation where environmental pollution in one State affects the environment and the population in another. Pollution has a significant and growing impact on the lives of children. According to the World Health Organization (WHO), lower respiratory infections are among the largest causes of mortality in children, accounting for 15% of deaths in 2015. In 2020, a death certificate in England listed air pollution as a cause of death for the first time.
International organisations are subjects of international law with international personality. They are constrained by customary international law to respect and protect life. In addition, the European Union is a party to the United Nations Convention on the Rights of Persons with Disabilities. A range of conduct will violate the right to life and thereby constitute an internationally wrongful act. Examples include the most flagrant instances of arbitrary deprivation of life: deliberate extrajudicial executions and other arbitrary killings by agents of an international organisation that often uses force, such as by NATO in its operations, or by UN Police or a UN peacekeeping operation. This is so whether the killings occur in peacetime or during and in connection with a situation of armed conflict.
This chapter considers the inter-relationship between the right to life and arms control and disarmament more broadly, encompassing also prohibitions and restrictions on conventional weapons as well as those pertaining to weapons of mass destruction. It offers definitions of both ‘arms control’ and ‘disarmament’ in the absence of agreement under international law as to the scope of each term. It then considers obligations under global arms control and disarmament treaties, first with respect to specific weapons of mass destruction and then with respect to conventional weapons. The use of weapons is addressed separately from disarmament duties and other arms control obligations.