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10 The right to life
Drawing on the case law of the Court, this volume analyses crucial developments over the years on both procedural and substantive issues before the Inter-American Court.
In the process of resolving disputes, it is not uncommon for parties to justify actions otherwise in breach of their obligations by invoking the need to protect some aspect of the elusive concept of public order. Until this thoroughly researched book, the criteria and factors against which international dispute bodies assess such claims have remained unclear. Now, by providing an in-depth comparative analysis of relevant jurisprudence under four distinct international dispute resolution systems – trade, investment, human rights and international commercial arbitration – the author of this invaluable book identifies common core benchmarks for the application of the public order exception. To achieve the broadest possible scope for her analysis, the author examines the public order exception’s function, role and application within the following international dispute resolution systems: relevant World Trade Organization (WTO) agreements as enforced by the organization’s Dispute Settlement Body and Appellate Body; international investment agreements as enforced by competent Arbitral Tribunals and Annulment Committees under the International Center for Settlement of Investment Disputes; provisions under the Inter-American Convention of Human Rights and the European Convention of Human Rights as enforced by the Inter-American Court of Human Rights and the European Court of Human Rights, respectively; and the New York Convention as enforced by national tribunals across the world. Controversies, tensions and pitfalls inherent in invoking the public order exception are elucidated, along with clear guidelines on how arguments may be crafted in order to enhance prospects of success. Throughout, tables and graphs systematize key aspects of the relevant jurisprudence under each of the dispute resolution systems analysed. As an immediate practical resource for lawyers on any side of a dispute who wish to invoke or strengthen a public order exception claim, the book’s systematic analysis will be welcomed by lawyers active in WTO disputes, international investment arbitration, human rights law or enforcement of foreign arbitral awards. Academics and policymakers will find a signal contribution to the ongoing debate on the existence, legal basis, content and functions of the transnational public order.
This book explores the interface between intellectual property and human rights law and policy. The relationship between these two fields has captured the attention of governments, policymakers, and activist communities in a diverse array of international and domestic political and judicial venues. These actors often raise human rights arguments as counterweights to the expansion of intellectual property in areas including freedom of expression, public health, education, privacy, agriculture, and the rights of indigenous peoples. At the same time, creators and owners of intellectual property are asserting a human rights justification for the expansion of legal protections. This book explores the legal, institutional, and political implications of these competing claims: by offering a framework for exploring the connections and divergences between these subjects; by identifying the pathways along which jurisprudence, policy, and political discourse are likely to evolve; and by serving as an educational resource for scholars, activists, and students.
Does human rights law help us to define who qualifies as a refugee? If so, then how? These deceptively simple questions sit at the heart of an intense contemporary debate over whether, or how, interpretation of the refugee definition in the Refugee Convention should take account of human rights law. In Human Rights and the Refugee Definition, Burson and Cantor bring a fine-grained comparative perspective to this debate. For the first time, they collect together in one edited volume over a dozen new studies by leading scholars and practitioners that explore in detail how these legal dynamics play out in a range of national and international jurisdictions and in relation to particular thematic challenges in refugee law.
"Delivered as a Tanner lecture on human values at the University of California, Berkeley, April 21, 2009 and April 22, 2009"--T.p. verso.
This book provides a rare view of a creative scholar at work during a highly productive phase of his career. It shows him as an innovator, theorist, methodologist, “missionary,” critic, and scientist, but he remains, withal, in his fashion, a humanist. He believes that institutions and processes—particularly law, politics, and scholarship—are best understood in human terms. With Holmes, he believes that law is a prediction of what courts will do; hence, to understand law it is necessary to understand judicial behavior. A full explanation of a judge’s behavior would take into account his health (both physical and mental), his personality, his culture and society, and his ideology. Glendon Schubert concedes this but focuses primarily on ideology because he believes the other variables are sublimated in it. Therefore, to him, ideology—attitudes toward human values—is the basic explanation of judicial behavior, and jurisprudence is necessarily human. The studies in this volume are important in the study of judicial behavior, for they broke new ground, and some were forerunners of major books, such as The Judicial Mind, which was published in 1965. Each shows Professor Schubert’s concern at the time they were written, and taken together they show the movement and growth of his ideas and interests.
The goal of this study is to provide a general overview and thorough analysis of how the European Court of Human Rights deals with tort law issues such as damage, causation, wrongfulness and fault, the protective purpose of rules, remedies and the reduction of damages when applying art 41 of the European Convention on Human Rights (ECHR). These issues have been examined on the basis of a comprehensive selection and detailed analysis of the Court’s judgments and the results compared with different European legal systems (Austria, Belgium, England and Wales, France, Germany, Hungary, Ireland, Italy, Poland, Romania, Scandinavia, Spain, Switzerland and Turkey), EC Tort Law and the Principles of European Tort Law. The introduction of art 41 (ex art 50) ECHR in 1950 as a compromise and the issues it raises now, the methodological approaches to the tort law of the ECHR, the perspectives of human rights and tort law and public international law as well as the question of whether the reparation awarded to victims of ECHR violations can be considered real ‘just’ satisfaction are addressed in five special reports (two of which are also available in German). Concluding remarks try to summarise the outcome.
This book examines the changing relationship between disability and the law, addressing the intersection of human rights principles, human rights law, domestic law and the experience of people with disabilities. Drawn from the global experience of scholars and activists in a number of jurisdictions and legal systems, the core human rights principles of dignity, equality and inclusion and participation are analyzed within a framework of critical disability legal scholarship.
Stereotypes are beliefs about groups of people. Some examples, taken from human rights case law, are the notions that 'Roma are thieves', 'women are responsible for childcare', and 'people with a mental disability are incapable of forming political opinions'. Increasingly, human rights monitoring bodies including the European and inter-American human rights courts, the Committee on the Elimination of Discrimination against Women, and the Committee on the Elimination of Racial Discrimination voice concerns about stereotyping and warn States not to enforce harmful stereotypes. Human rights bodies thus appear to be starting to realise what social psychologists discovered a long time ago: that stereotypes underlie inequality and discrimination. Despite their relevance and their legal momentum, however, stereotypes have so far received little attention from human rights law scholars. This volume is the first one to broadly analyse stereotypes as a human rights issue. The scope of the book includes different stereotyping grounds such as race, gender, and disability. Moreover, this book examines stereotyping approaches across a broad range of supranational human rights monitoring bodies, including the United Nations human rights treaty system as well as the regional systems that are most developed when it comes to addressing stereotypes: the Council of Europe and the inter-American system.