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 As a result, amnesties have been revoked many years after their award.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.

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?

scholarly journals International Constitutional Law and Judicial Review of Domestic Human Rights Legislation

ICL Journal ◽  
2019 ◽  
Vol 13 (2) ◽  
pp. 87-118
Author(s):  
Laura-Stella Enonchong
Keyword(s):  
Human Rights ◽  
International Law ◽  
Constitutional Law ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Domestic Sphere ◽  
International Human Rights ◽  
Human Rights Regime ◽  
International Human ◽  
Human Rights Norms

Abstract This article discusses the idea of international human rights law as ‘constitutional law’. It applies the French concept of Le contrôle de conventionnalité des lois, to demonstrate the constitutional potentials of international human rights law in the domestic sphere. In most monist constitutional systems based on the French civilian model, international law takes precedence over acts of parliament and other domestic legislation. Due in part to that hierarchy, conventionnalité permits the courts to review domestic law for compatibility with international law. From that perspective, international human rights norms can be said to have assumed a ‘para-constitutional’ function. Using two case studies from francophone Africa, this article argues that conventionnalité has the potential to play a significant role in the domestic implementation of international human rights and ultimately contributing to a more comprehensive domestic human rights regime.

scholarly journals International Human Rights in Canada: At the Juncture of Law and Politics

2013 ◽  
Vol 41 (1) ◽  
pp. 1-15 ◽  
Author(s):  
Faisal Bhabha
Keyword(s):  
Human Rights ◽  
Legal Status ◽  
Access To Justice ◽  
Supreme Court Of Canada ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Law And Politics ◽  
The Status ◽  
International Human

Thank you for the opportunity to address the very timely topic of international human rights law from the Canadian perspective. As my title suggests, my analysis of this topic sits at the intersection of law and politics, as so much of international law necessarily does. I will proceed in three parts. First, I will provide a sketch of the political context, drawing from recent events and trends, to describe a conflicted official government approach to international human rights. Next, I will examine the formal legal status of international human rights law in Canada, drawing selectively from key Supreme Court of Canada decisions. This will be far from a comprehensive account. Finally, I will discuss the recent adoption of the newest international human rights treaty, the disability convention, and discuss calls to promote access to justice at the international level for breaches of Convention norms domestically. Notwithstanding important efforts to advance the status of international human rights law in Canada, my overall observation is that, in both law and politics, the Canadian approach to international human rights is predominantly inward looking.

International Human Rights Law and Practice in Latin America

2000 ◽  
Vol 54 (3) ◽  
pp. 633-659 ◽  
Author(s):  
Ellen L. Lutz ◽  
Kathryn Sikkink
Keyword(s):  
Human Rights ◽  
Latin America ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
International Consensus ◽  
State Compliance ◽  
International Human ◽  
Human Rights Norms ◽  
The Right

Human rights practices have improved significantly throughout Latin America during the 1990s, but different degrees of legalization are not the main explanation for these changes. We examine state compliance with three primary norms of international human rights law: the prohibition against torture, the prohibition against disappearance, and the right to democratic governance. Although these norms vary in their degree of obligation, precision, and delegation, states have improved their practices in all three issue-areas. The least amount of change has occurred in the most highly legalized issue-area—the prohibition against torture. We argue that a broad regional norm shift—a “norms cascade”—has led to increased regional and international consensus with respect to an interconnected bundle of human rights norms, including the three discussed in this article. These norms are reinforced by diverse legal and political enforcement mechanisms that help to implement and ensure compliance with them.

Setting the Scene

2018 ◽  
Author(s):  
Anna Lawson ◽  
Lisa Waddington
Keyword(s):  
Human Rights ◽  
Comparative Analysis ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Persons With Disabilities ◽  
Domestic Courts ◽  
International Human

This chapter introduces the book and provides important context for all the subsequent chapters. In particular, it explains the aim of the research presented in the book and situates it within the emerging literature on comparative international (human rights) law, as well as the literature on the Convention on the Rights of Persons with Disabilities (CRPD). It also sets out the methodology used and explains how the book is structured, with jurisdiction-specific chapters, and chapters providing comparative analysis across jurisdictions illuminating the differences and similarities in the interpretation and use of the CRPD by domestic courts and judges.

The Paris Agreement as a Human Rights Treaty

2020 ◽  
pp. 323-347
Author(s):  
John H Knox
Keyword(s):  
Climate Change ◽  
Human Rights ◽  
Paris Agreement ◽  
Environmental Harm ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Previous Decade ◽  
International Human ◽  
Human Rights Norms

This chapter examines the Paris Agreement on climate change in light of international human rights law, with particular attention to the human rights language included in the Paris Agreement. The chapter reviews the efforts over the previous decade to characterize climate change as a threat to human rights; describes the evolution of human rights obligations relating to environmental harm in general and to climate change in particular; and assesses the new climate regime in light of these norms. It concludes that the Paris Agreement is consistent with the human rights obligations relating to climate change in many respects, but that states must strengthen their commitments in order to fulfil those obligations completely. Finally, the chapter examines how human rights norms may influence climate policy in the future.

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