Biblioteca Digital

A presente tese tem como objeto de estudo o direito internacional dos direitos humanos, trazendo como proposição a apresentação de uma nova concepção sobre a soberania. A justificativa que levou à escolha do tema e desenvolvimento do texto aflorou da verificação de diversas teorias emergentes na tentativa de melhor conceber o exercício contemporâneo da soberania estatal, diante da cada vez mais indispensável proteção dos direitos humanos no plano internacional. Esta constatação instigou o aprofundamento do assunto no sentido de contribuir para com o rompimento do dogma da soberania aliada à característica da supremacia, definição persistente que tem justificado a inefetividade do direito internacional dos direitos humanos. A pretensão foi buscar subsídios para a construção de um novo conceito de soberania estatal redesenhado a partir do paradigma da revitalização da soberania em decorrência da efetivação da proteção internacional dos direitos humanos. O texto demonstra que a tensão existente entre a efetivação concreta dos direitos humanos na esfera internacional e a suposta barreira da soberania estatal emerge da tentativa de se explicar institutos jurídicos novos com fundamentos principiológicos tradicionais que...

O objetivo essencial da tese é o exame específico dos Direitos Humanos Fundamentais e dos princípios respectivos, sobretudo aqueles relativos à dignidade da pessoa humana e ao valor social do trabalho, bem como da relação destes com o Direito do Trabalho e com o Direito Processual do Trabalho. A oportunidade (ou necessidade) para este estudo resultou da constante referência, nas petições, nos debates e nas decisões dos Juízes e Tribunais do Trabalho, aos Direitos Humanos Fundamentais, assim como ao princípio da dignidade da pessoa humana o mais importante na menção aos Direitos Humanos e, também, consagrado pela (e na) Constituição Federal. Trata-se de projeção de tais preocupações da vivência diária, como juiz, sobretudo depois da ampliação da competência da Justiça do Trabalho, decorrente da Emenda Constitucional n. 45, de 2004. Daí resultou a verificação da efetividade e eficácia da inclusão dos Direitos Humanos no Direito positivo. Há estudo da terminologia. Passou-se ao estudo das diversas concepções, segundo as variadas correntes doutrinárias. Entendeu-se indispensável a leitura da sua evolução, na história, na filosofia, na teologia, e da sua inclusão no Direito positivo. Adotou-se como marco...

The article sets out the concept of a State-to-State human transfer agreement of which extradition and deportation are specialised forms. Asylum sharing agreements are other variations which the article explores in more detail. Human transfer agreements always affect at least the right to liberty and the freedom of movement, but other rights will also be at issue to some extent. The article shows how human rights obligations limit State discretion in asylum sharing agreements and considers how past and present asylum sharing arrangements in Europe and North America deal with these limits, if at all. The article suggests changes in the way asylum sharing agreements are drafted: for example, providing for a treaty committee would allow existing agreements to better conform to international human rights instruments and would facilitate State compliance to their human rights obligations.

The study includes a conceptual overview of the link between climate impacts and human rights, focused on the relevant legal obligations underpinning the international law frameworks governing both human rights and climate change. As such it makes a significant contribution to the global debate on climate change and human rights by offering a comprehensive analysis of the international legal dimensions of this intersection. The study helps advance an understanding of what is meant, in legal and policy terms, by the human rights impacts of climate change through examples of specific substantive rights. It gives a legal and theoretic perspective on the connection between human rights and climate change along three dimensions: first, human rights may affect the enjoyment of human rights. Second, measures to address human rights may impact the realization of rights and third, that human rights have potential relevance to policy and operational responses to climate change, and may promote resilience to climate change...

Human rights indicators are central to the application of human rights standards in context and relate essentially to measuring human rights realization, both qualitatively and quantitatively. They offer an empirical or evidence-based dimension to the normative content of human rights legal obligations and provide a means of connecting those obligations with empirical data and evidence and, in this way, relate to human rights accountability and the enforcement of human rights obligations. Human rights indicators are important for both assessment and diagnostic purposes: the assessment function of human rights indicators relates to their use in monitoring accountability, effectiveness, and impact; the diagnostic purpose relates to measuring the current state of human rights implementation and enjoyment in a given context, whether regional, country-specific, or local. This paper offers a preliminary review of the foregoing in the development context and a general perspective on the significance of human rights indicators for development processes and outcomes. It is not intended to be prescriptive and does not provide specific operational recommendations on the use of human rights indicators in development projects. Nor does it advocate a particular approach or mode of integrating human rights in development or argue for a rights-based approach to development. This paper is designed to provide development practitioners with a preliminary view on the possible relevance...

This paper assesses the benefits, risks, and limitations of human rights based approaches to development, which can be catalogued on the basis of the institutional mechanisms they rely on: global compliance based on international and regional treaties; the policies and programming of donors and executive agencies; rights talk; and legal mobilization. The paper briefly reviews the politics of the first three kinds of human rights based approaches before examining constitutionally based legal mobilization for social and economic rights in greater detail. Litigation for social and economic rights is increasing in frequency and scope in several countries, and exhibits appealing attributes, such as inclusiveness and deliberative quality. Still, there are potential problems with this form of human rights based mobilization, including middle class capture, the potential counter-majoritarianism of courts, and difficulties in compliance. The conclusion summarizes what is known, and what remains to be studied, regarding human rights based approaches to development.

A key issue with human rights is how to allocate duties correlative to rights claims. But the philosophical literature, drawing largely on naturalistic or interactional accounts of human rights, develops answers to this question that do not illuminate actual human rights problems. Charles Beitz, in recent work, attempts to develop a conception of human rights more firmly rooted in, and helpful for, current practice. While a move in the right direction, his account does not incorporate the domestic practice of human rights, and as a result remains insufficiently instructive for many human rights challenges. This paper addresses the problem of allocating correlative duties by taking the practices of domestic courts in several countries as a normative benchmark. Upon reviewing how courts in Colombia, India, South Africa, Indonesia, and elsewhere have allocated duties associated with socio-economic rights, the paper finds that courts urge parties to move from an adversarial to an investigative mode, impose requirements that parties argue in good faith...

While the nonviolent struggle of Daw Aung San Suu Kyi against the Burmese military government’s continuing repression has captured the world’s attention, the profound human rights and humanitarian crisis endured by Burma’s ethnic minority communities has largely been ignored. ¶ Decades of armed conflict have devastated ethnic minority communities, which make up approximately 35 percent of Burma’s population. The Burmese army, or Tatmadaw, has for many years carried out numerous and widespread summary executions, looting, torture, rape and other sexual violence, arbitrary arrests and torture, forced labor, recruitment of child soldiers, and the displacement and demolition of entire villages as part of military operations against ethnic minority armed opposition groups. Civilians bear the brunt of a state of almost perpetual conflict and militarization. ¶ Violations of international human rights and humanitarian law (the laws of war) by the Tatmadaw have been particularly acute in eastern Karen state, which runs along the northwestern border of Thailand. One woman described to Human Rights Watch more than twenty years of Tatmadaw brutality: ... One result of the Tatmadaw’s brutal behavior has been the creation of large numbers of internally displaced persons (IDPs) and refugees among Burma’s ethnic minority communities. Conflict and its consequences have been going on for so long that in many ethnic minority-populated areas...

This textbook presents the main universal and regional systems and standards for the international protection of human rights, also taking note of recent changes in procedure together with substantive developments in the field of human rights law. In addition to the United Nations at the universal level, it outlines the existing regional protection systems in Europe, Africa and the Americas as well as bringing for the discussion pertaining to human rights law in Asia and the Arab countries. Moreover, the various means for domestic implementation of human rights law are covered, and attention is drawn to the role of non-governmental organizations in the protection of human rights. This volume is not limited to human rights law in the strict sense, but rather places human rights within a wider context of public international law as well as philosophy. The primary target group for this textbook are Master’s level students in law schools and specialized Master’s programmes in international law or human rights law, but the book may also appeal to more advanced human rights researchers and professors teaching human rights topics.; I. The Foundations of Human Rights 1. Philosophical and Historical Foundations of Human Rights (Heiner Bielefeldt) 2. Characteristics of Human Rights Norms (Martin Scheinin) 3. The Status of Human Rights in International Law (Olivier De Schutter) II. United Nations Standards and Mechanisms 4. The United Nations and Human Rights (Hurst Hannum) 5. United Nations Charter-Based Protection of Human Rights (Andrew Clapham) 6. Civil and Political Rights (Sir Nigel Rodley) 7. Economic...

The more ‘globalization’ transforms ‘national public goods’ demanded by citizens into transnational ‘aggregate public goods’, the stronger becomes the need for reviewing ‘Westphalian governance failures’ and related ‘legal methodologies’ (Section I). Resolving the ‘constitutional problems’ and ‘collective action problems’ of multilevel governance (e.g. in terms of constituting, limiting, regulating and justifying multilevel governance powers, participation and representation of citizens in governance and dispute settlement, rule of law protecting cosmopolitan rights) requires supplementing national Constitutions by ‘multilevel cosmopolitan constitutionalism’ empowering citizens and multilevel governance institutions to realize their collective responsibility for protecting human rights, rule of law and other interdependent public goods across frontiers (Section II). The prevailing ‘political realism’ and ‘constitutional nationalism’ neglect the customary law requirements of interpreting international treaties and settling disputes ‘in conformity with the principles of justice and international law’, including ‘human rights and fundamental freedoms for all’, in order to limit democratic accountability of governments (Section III). Human rights and multilevel protection of ‘principles of justice’ require cosmopolitan law based on constitutional...

“Human dignity” is the foundation of the human rights discourse that evolved around the United Nations’ 1948 Universal Declaration of Human Rights. In recent decades, the concept of human dignity has been vastly over-extended, gradually becoming a vague, nearly meaningless “catch-all” phrase. In the 21st century’s pluralistic and multicultural world, this development has played into two worrisome trends. One is the formulation of any cultural-specific identity-based claim as involving a human dignity-based human right; such over-extension of human dignity and human dignity-based rights breeds growing scepticism regarding the usefulness of the whole human rights discourse. The second trend is the erroneous portrayal of cultural specific honor-based claims as involving dignity-based human rights. Such misleading portrayal blurs the boundaries between the universalistically humanistic dignity-based human rights discourse, and culturally specific, often separatist and conservative honor-based mentalities. Attempting to address these troubling trends, this paper defines a tightly knit human dignity, which marks the absolute value/ worth of the common denominator of humanness in all human beings. This human dignity gives rise to universalistic and absolute – yet minimal – fundamental human rights. It is conceptually distinguished from what I refer to as “respect”...

Examining Board: Professor Martin Scheinin, European University Institute (Supervisor) Professor. Ruth Rubio-Marin, European University Institute Professor Christine Chinkin, London School of Economics and Political Science Judge Antônio Augusto CançadoTrindade, International Court of Justice.; Defence date: 10 June 2013; Human security has been qualified as "the emerging paradigm for understanding global vulnerabilities". Articulated by UN and regional bodies over the last twenty years, its person-centred axis of freedom from fear, from want and to live in dignity and its protection and empowerment strategies, suggest communicating bridges with human rights law. However, this connection has seldom been explored at a deeper level that transcends human rights as discourse or token. This thesis analyses whether human security may provide tools for an expansive and integrated legal interpretation of international human rights, state and non-state obligations in the context of structural vulnerability; and whether a gendered and human rights-based approach can more accurately define the scope of human security and the types of violence and deprivation it considers. Thus, on the basis of an initial interdisciplinary research, this thesis maps and critically evaluates the expressions of human security/human rights interaction in international law...

Human rights violations continue to burden countless groups, cultures and sub-cultures around the world. There is increasing scrutiny of human rights in Australia, particularly as they pertain to Indigenous Australians. The individuals and organisations in Australia who work to defend, promote and protect the human rights of Australia's Indigenous people should be more readily acknowledged for the work they have undertaken. The Emilio F. Mignone International Human Rights Prize came into existence because an Argentine man, Emilio F. Mignone, dedicated his life to helping people overcome great injustice and loss. Acts of genocide in Argentina, such as the forced removal of family members from their homes and loved ones, are not dissimilar to the case of Australia's Stolen Generations. The Emilio F. Mignone International Human Rights Prize is a way for Argentina to acknowledge the efforts of individuals and/or organisations working to promote and protect the human rights of Indigenous peoples internationally. This prize seeks to recognise outstanding commitments to human rights, and is awarded by the Minister for Foreign Affairs in Argentina every year. It is important for the Embassy of Argentina in Canberra to present nominations to Argentina for the Emilio F. Mignone International Human Rights Prize in order to acknowledge the work of Australia's human rights advocates on an international level. Many Indigenous and non-Indigenous individuals or organisations across Australia present a unique story that has had a lasting effect on the lives of Australia's Aboriginal and Torres Strait Islander population. The underpinning motivation...

Since 2011, CGHR has collaborated with the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, providing research support to his mandate. In 2012, a team of researchers produced a ?Research Pack? on the threats to the right to life of journalists for an Expert Meeting held in Cambridge, ultimately contributing to the Special Rapporteur?s report that year to the Human Rights Council. In 2013, work began on a broader collaboration studying violations of the right to life across the African continent, culminating in a report, ?Unlawful Killings in Africa,? to guide the Special Rapporteur?s future activity. In 2014, a CGHR research team began a study of how the use of information and communication technologies affects the right to life, resulting in this report and the ICTs and Human Rights blog. This report was originally a discussion document prepared by CGHR Research Associate Dr Ella McPherson in collaboration with the mandate of the Special Rapporteur and ahead of a meeting of experts held in Cambridge in February 2015. The discussion document, as well as the discussion at the expert meeting, contributed to the Special Rapporteur?s thematic report on the use of information and communications technologies to secure; The use of information and communication technologies (ICTs) is creating a wealth of new opportunities as well as a variety of new risks for human rights practice. Given the pace of innovation in the development and use of ICTs...

This article examines the perspectives of governmental and nongovernmental stakeholders in South Africa on the dynamics of human trafficking in South Africa, and on efforts to protect the human rights of rescued victims of human trafficking prior to the promulgation of human trafficking legislation in the country. The authors seek to understand the range of views and approaches of stakeholders to trafficking, including possible links to HIV, as human trafficking is commonly discussed in the media, but empirical research on the scale, dynamics, and impacts of trafficking in South Africa is scarce. This exploratory situation analysis involves desk review and 24 key informant interviews, using purposive and sequential referral sampling. Respondents included government departments and non-governmental organisations working at a border-crossing site (Musina), and two major destination sites for irregular migrants, including trafficked people (Johannesburg and Cape Town). Almost all respondents reported that human trafficking is significant and complex, and that both cross-border and internal movement of trafficked victims violate victims' rights in several ways. While they suffer at the hands of organised crime syndicates, their rights are further violated even after rescue...

The Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa has been hailed for its efforts to promote women's health and rights.. The Protocol has now been signed and ratified by approximately two-thirds of African Union member states, from the most populous and largest to the smallest countries on the continent. The Protocol envisages major steps to improve the status of women on the continent, from economic opportunities and food security through to marriage and the rights of widows. This article seeks to contribute to the emerging literature on gender, health and rights, by exploring how government commitments to the health mandates of the Women's Protocol have transpired in practice, one decade after its enactment, with a focus on resource allocations. The article's scope includes a review of why sexual and reproductive rights matter, intrinsically, as rights, and evidence about their instrumental importance for development. Available evidence about status and trends in women's health in Africa is presented, highlighting some advances as well as major shortcomings. This is the important empirical background against which to explore the human rights obligations of African states on this front...

Recent legislation proposed or passed in Nigeria, Uganda and The Gambia has put the spotlight on the plights of homosexual persons living in sub-Saharan Africa. In Nigeria, discriminatory laws prohibit same-sex marriages and ban gay clubs and organisations. In Uganda, the Prohibition of the Promotion of Unnatural Sexual Practices Bill of 2014, with contents similar to the notorious Anti-Homosexuality Act, is being considered after a ruling by the Ugandan Constitutional Court rendering the Anti-Homosexuality Act unconstitutional. In The Gambia, the Penal Code has been amended recently to add the crime of 'aggravated homosexuality' with a lifetime prison sentence for any person found guilty. The rights to dignity and equality are protected under the African Charter on Human and Peoples' Rights; however, competing local and global values are arguably growing in Africa, challenging this right. This article explores two main problems: first, how the rights to dignity, equality and non-discrimination should generally be interpreted and applied under the regional African human rights system when related to sexual orientation. In this regard I draw on the interpretation of these rights under international human rights law as well as the jurisprudence of the European Court of Human Rights and its Inter-American counterpart. Second...

In this article, I examine critically the culture versus human rights debate, and the crucial role and tactics of civil society organisations, drawing on insights from transnational advocacy networking, in the struggle to extend human rights to vulnerable people with reference to the trokosi practice in Ghana. This trokosi system turns virgin girls into slaves of the gods to atone for crimes committed by their family members. Theoretically, universal human rights must take precedence over any demand for cultural rights. In practice, however, the actual enforcement of human rights laws that conflict with other cultural values and practices can be more messy and complex than it is often conceptualised. Essentially, universal human rights accommodate, recognise and promote cultural rights; however, the latter ends at a point where its observance is likely to result in the violation of the fundamental human rights of others. I conclude that, although the call for cultural pluralism and the need to celebrate and respect the diversity of cultures sound legitimate, this demand cannot be allowed to trump the minimum package of the fundamental human rights that protect human dignity, wellbeing and integrity within the context of human rights protocols that state parties already have ratified. Yet...

The article exposes the difficult position in which the East African Court of Justice (EACJ) finds itself when faced with matters containing human rights allegations, which the Court is barred from deciding as such. The EACJ is often called upon to draw a line between what might constitute a human rights case and a claim relating to an East African Community (EAC) norm which is not barred under article 27(2) of the East African Community Treaty. As the main judicial mechanism of the EAC, the EACJ is primarily mandated to interpret and apply EAC law, of which human rights form part. Despite the existing limitations, the EACJ has clearly laid down its position that it cannot 'abdicate' exercising its interpretive mandate, even if a matter before it contains allegations of human rights violations. In doing so, the EACJ has indirectly protected human rights in the EAC through other forms of cause of actions, such as the rule of law and good governance. This contribution advances two key arguments: First, the EAC Treaty contains human rights norms that the EACj cannot escape from interpreting. Second, due to the continuing restrictions in adjudicating human rights, as well as the existing human rights norms in the EAC Treaty, the EACJ is trapped in precarious attempts to balance the advancing of EAC norms...

In an article previously published in this Journal, Anthony Oyowe critically engages with my attempt to demonstrate how the human rights characteristic of South Africa's Constitution can be grounded on a certain interpretation of Afro-communitarian values that are often associated with talk of ubuntu. Drawing on recurrent themes of human dignity and communal relationships in the sub-Saharan tradition, I have advanced a moral-philosophical principle that I argue entails and plausibly explains a wide array of individual rights to civil liberties, political power, criminal procedures and economic resources. Oyowe's most important criticism of my theory is in effect that it is caught in a dilemma: Either the principle I articulate can account for human rights, in which case it does not count as communitarian, or it does count as the latter, but cannot account for the former. In this article, I reply to Oyowe, contending that he misinterprets key facets of my theory to the point of not yet engaging with its core strategy for deriving human rights from salient elements of ubuntu. I conclude that Oyowe is unjustified in claiming that there are 'theoretical lapses' that 'cast enormous doubts' on my project of deriving human rights from a basic moral principle with a recognisably sub-Saharan and communitarian pedigree.