Human Rights Law: Australia and Slovenia

The human rights legal framework of Australia and Slovenia are vastly different. This article explores the evolution of human rights laws of Slovenia and Australia. While the study and comparison of Australia and Slovenia is uncommon, and not often used as an example to highlight aspects of human rights, both states have a long history of cooperation. The first Slovenian reportedly arrived in Australian in 1855. Since then, and particularly following World War Two, there has been a steady stream of Slovenian’s migrating to Australia. Slovenia upon independence prepared a new constitution that reflected the democratic human rights of the European Union, in 1991, and ratified the European Convention on Human rights in 1994. This article highlights how the opportunity Slovenia had to develop a new constitution, they were able to include many human rights that are often found in legislation. Australia’s constitution came into effect in 1901. Being more than 100 years old, there has been no attempts to revise the Australian constitution and expand the current express human rights. This article will determine whether the European Union’s human rights laws have not only influenced Slovenia’s human rights laws, but also Australia’s. This article suggests that Australia has much to learn from the Slovene experience, but is constrained by its constitution and region. This article highlights how a state formed in recent times, has had the opportunity to develop a constitution that reflects modern day human rights while an older state with longer established democracy has fallen behind in its protection of human rights.     

Law and Institutional Legitimacy in the Practice of Human Rights

The Heart of Human Rights develops an account of human rights as legal entities that serve important moral purposes in a legitimate international human rights practice. This paper examines Allen Buchanan’s general concept of institutional legitimacy and aims to expand that concept by emphasizing its connection with several ideas developed in the book about the nature and function of a system of international human rights. When it incorporates those ideas, Buchanan’s ‘Metacoordination View’ can be seen to set a standard of legitimacy not only for assessments of an international scheme of human rights institutions, but also for the basic institutional structures of domestic states. Furthermore, we can see how the nature and function of human rights in the international practice of human rights bears on legitimacy assessments of particular domestic institutions.     

Global rights and regional jurisprudence

This article asks whether a “law-as-integrity” approach to human rights adjudication provides a theoretical framework within which to make sense of authoritative regional interpretations of basic human rights for the global community. To focus analysis, I consider U.S. court interpretations of international human rights as an interpretive context. I argue that, with appropriate modification so as to include the world community as a “community of principle” for purposes of human rights adjudication, the law-as-integrity perspective permits disputes surrounding the legality of human rights to revolve around competing interpretive claims backed up by justifying legal theories, rather than as ideological battles external to a juridical philosophy of rights.     

Challenging Corporate 'Humanity': Legal Disembodiment, Embodiment and Human Rights

This article interrogates the corporate use of human rightsdiscourse. It does so in light of concern surrounding corporatedistortion of the Universal Declaration of Human Rights (UDHR)paradigm,¹ and in light of the fact that corporations can claimshelter under human rights documents, particularly—asrecently discussed by Emberland²—the European Conventionof Human Rights and Fundamental Freedoms (ECHR). The authoroffers a critical exploration of corporate human rights claims(and some arguments advanced in their favour), and identifiesthe phenomenon of legal disembodiment (or ‘quasi-disembodiment’),linking it to both a genealogical account of human rights andthe nature of liberal legal personality. This reading of humanrights genealogy invites the reader to focus on a series ofparadoxes surrounding human rights, including their nature asa form of sacral construct, and locates human rights at an entrenchedand challenging interface between historical and contemporarypatterns of inclusion and exclusion. Quasi-disembodiment emergesfrom the analysis as a key conceptual conduit for the legalreception of corporate human rights claims. Linking the ECHRto the liberal human rights tradition, the author suggests thatnotwithstanding judicial protection of corporations as beneficiariesof ECHR protection, it remains essential to engage in a normativecritique of the very notion of corporate human rights. Beneathhuman rights law (and the related closures of legal discourse)it is possible to trace a human rights-oriented critique thatadopts human embodiment (and its quintessential link with humanvulnerability) as the ethical foundation of human rights.³ Emphasisingembodied vulnerability as the foundation of human rights yieldsa significant and ethically relevant distinction between corporationsand human beings—a distinction with intriguing possibilitiesfor the future theorisation of human rights—and one thatarguably problematises the corporate use of human rights discourse.     

A Human Right not to be Punished? Punishment as Derogation of Rights

In this essay, I apply international human rights theory to the domestic discussion of criminalization. The essay takes as its starting point the “right not to be punished” that Douglas Husak posited in his recent book Overcriminalization. By reviewing international human rights norms, I take up Husak’s challenge to imbue this right with further normative content. This process reveals additional relationships between the criminal law and human rights theory, and I discuss one analogy: the derogation by states of an individual’s human rights under specified conditions has certain similarities to the punishment by states of an individual who holds a right not to be punished. Along the way, I highlight the normative implications of defining a human right not to be punished under both generalist and specificationist perspectives on moral rights. Noting the similarities as well as the differences in the concepts of punishment and derogation, this essay aims to contribute to the exchange between theories of human rights and the criminal law.     

Ethno-National Narratives of Human Rights: The Northern Ireland Policing Board

Policing in Northern Ireland has undergone one of the world's most extensive human rights reform programmes. The challenge has been whether the human rights paradigm can serve as a mutual basis for the region's sparring ethno-national communities to deliberate over long-contested issues of policing, accountability and justice. This article focuses on the Northern Ireland Policing Board as an arena to examine the contemporary political attitudes and agendas that animate the Board's statutory duty to monitor policing on the basis of human rights. Marshalling qualitative data and drawing on legal anthropology, this article offers an account of the ‘social life’ of human rights and policing in the context of Northern Ireland's imperfect peace. It argues that, irrespective of legal standards, human rights oversight harbours deep sentiments and concerns, at the heart of which are communities’ own historical engagements with rights, competing legacies of the conflict and divergent understandings of contemporary policing.     

Post-Marxism and the Politics of Human Rights: Lefort,Badiou, Agamben,Rancière

Recent histories of human rights have shown that the turn to human rights as a form of politics occurred as a placeholder for utopian energies at the end of history, coinciding with a retreat of the organised left, the abandonment of the theme of revolution, and the pluralisation of political struggles. This essay examines the way that radical continental theory has responded to the political hegemony of human rights by focusing on ‘post-Marxist’ thought. Examining the work of four influential critics of human rights—Claude Lefort, Alain Badiou, Giorgio Agamben, and Jacques Rancière—I argue that post-Marxist thought provides two very different approaches to the political possibilities offered by human rights. The first retains a fidelity to the revolutionary critique of rights by rejecting the language and conceptuality of human rights as too deeply implicated in the liberal political order that needs to be resisted. The second acknowledges the limitations of human rights while arguing that they also offer important tools for democratic political struggle. The essay draws upon these analyses to consider the contemporary political meaning of human rights. It argues that the latter of these strategies is problematic because we now face a radically different political conjuncture to the one in which the politics of human rights first emerged: human rights have played an important role in the project of post-historical reaction; the political space in which the politics of rights once made sense has collapsed; and we have seen substantial political upheavals in the wake of the crisis of capitalism.     

When Women's Rights are Not Human Rights – the Non‐ Performativity of the Human Rights of Victims of Domestic Abuse within English Family Law

A large proportion of child contact cases in England take place within a context of domestic abuse and significant risks to victims and their childrenq associated with post separation contact. The legal response has largely been inadequate and the potential impact of human rights law by the family courts has yet to be fully explored. This paper analyses an exploratory empirical research project undertaken in 2017/2018 with Women's Aid England and 72 victims of domestic abuse regarding their experiences of human rights law in the family courts. The results, theorised through the lens of performativity and against the context of international human rights law, reveal a high level of non‐ performativity with respect to the human rights of the participants. The paper concludes with recommendations and the implications the analysis holds for feminist organisations if they are to fully realise the human rights of the victims of domestic abuse.     

Access to justice: a new approach using human rights standards

This article details a trial of a new approach to measuring access to justice that utilises human rights instruments as the reference point. It involves an examination of people's actual experience of the justice system using human rights standards as the benchmark. The research project selected the right to income security. The project trialled a range of methods gathering data about how people have been treated in the Australian social security system and how they would expect to be treated if there was a human right to social security in Australia. This data is assessed against the set of standards developed to measure the enjoyment of the right to social security. The trial suggests that without knowledge about human rights and legal rights, without the confidence to exercise those rights and without the capacity or capability to seek or find help it is unlikely that people will realise their rights and accordingly access to justice is placed in question. The research methodology has the potential to be a useful model to conduct further access to justice research.     

Between Law and Culture: Rwanda's Gacaca and Postcolonial Legality

This article recounts a clash between an establishment international nongovernmental organization (NGO), Amnesty International, and the government of Rwanda over the meaning of international human rights norms in a postconflict society. It offers a critical perspective on the mainstream human rights community's due process critique of Rwanda's gacaca— a system of over ten thousand local judicial bodies modeled on a precolonial communal dispute resolution the Rwandan government introduced to process the over one hundred twenty thousand suspects crowding its prisons following the 1994 genocide. This moment of norm contestation offers a lens to broader problems facing the human rights regime. It argues that Amnesty International's legalistic approach to the gacaca prevents it from appreciating its unique postcolonial hybrid form, and that other approaches, such as the one adopted by Penal Reform International, are perhaps better models for human rights praxis in the developing world.     

经济、社会和文化权利国际救济机制的新突破——《经济、社会和文化权利国际公约任择议定书》述评

由于条约实施机制存在缺陷,《经济、社会和文化权利国际公约》所规定的社会权在国际层面一直得不到有效救济。这一状况对国际人权保护的连贯性和整体性产生了长久的负面影响。2008年12月10日,联合国大会通过了《（经济、社会和文化权利国际公约）任择议定书》。在缔约国报告程序之外,议定书还确立了个人来文程序、国家来文程序、调查程序三位一体的准司法性权利救济程序。这将会大大加强对个人社会权的国际保护,结束社会权与公民权国际保护不平衡的局面,进一步完善国际人权法体系,从而推动国际人权保护事业的发展。     

Chinese Practice in Public International Law: 2006 (I)

This part of the Survey covers materials reflecting Chinesepractice in 2006 relating to: I. Subjects under discussion atthe ILC (Shared natural resources; responsibility of internationalorganizations; reservation to treaties; unilateral acts of states;effects of armed conflicts on treaties; obligation to extraditionor prosecution; fragmentation of international law); II. Internationalhuman rights law (general commitment on human rights; collectivehuman rights, including right of self-determination, right todevelopment; civil and political rights, including freedom ofreligion, freedom of expression, issue of organ transplants;economic, social and cultural rights, including right to food,right to health; human rights of aliens, including freedom ofpress of foreign correspondents, rights of refugees; human rightsof special groups, including rights of ethnic minorities, rightsof indigenous peoples, rights of women, rights of children,rights of immigrants, rights of persons with disabilities, rightsof older persons; implementation of international human rightslaw, including the establishment of UN Human Rights Council,review of mandates and mechanisms of UN Human Rights Council,the implementation of human rights instruments, human rightsdialogue and corporation; human rights situation in foreigncountries, including Myanmar, Middle East; human rights andinternational trade); III. International humanitarian law.     

人权与人文--珠泉商贸城故事与波茨坦磨坊故事比较

人权入宪是人权发展历史上的重要事件,但并不等于人权的真正实现.人权的实现受到物质条件、主体的自觉程度、思想文化基础的制约,只有在适宜的人文环境中,人权才可能成为有约束力的法则.文章从两个公法事件出发引出人权的人文需求和人文基础,论证了人权的文化本性和社会向度,并提出建构人权的人文基础的必要性和意义.     

论发展权的实现途径

发展权既是一项国际人权,同时也是一项国内人权.作为国际人权,为保障发展权的实现,各国应努力创造一个有利于发展权实现的国际环境.作为国内人权,国家应采取积极的措施来保障和促进发展权的实现.包括设立促进与保护人权的国家专门机构;完善立法;完善宪法审查和宪法诉讼制度.     

The Trump Effect,Children, and the Value of Human Rights Education

Since launching his presidential campaign, Donald Trump's rhetoric has often been divisive as well as demeaning of selected groups. This article examines the impact of Trump's rhetoric on children and their communities and explores the role that human rights education can play in responding to Trump and forging broader support for human rights. The article reviews the research on human rights education and considers how human rights education can be embedded in broader efforts to educate children. Using children's literature as a case study, the article argues for the importance of mainstreaming human rights education and meeting children where they are, in order to foster greater recognition of and respect for the rights of all individuals.     

The Changing Face of Corporate Liability – New Hard Law and the Increasing Influence of Soft Law

The first frameworks defining standards of human rights protection specifically for business enterprises were non-binding “soft law” like the UN Guiding Principles on Business and Human Rights. In recent times, a “hardening” of corporate human rights law has taken place. Several acts of “hard law” have been implemented at a national and EU level. This article provides an overview of the most important ones. The “hard law” provisions differ in their scope: some obligate companies to report on human rights, others stipulate concrete obligations to conduct human rights due diligence. Another way of tackling the issue of human rights compliance has been demonstrated by the prosecution of companies in the United States. While procedural guidelines abstractly stipulate an effective compliance system to be a mitigating factor, the US Department of Justice regularly defines concrete compliance obligations in deferred or non-prosecution agreements. This development could lead to comprehensive liability for negligence due to organisational and monitoring deficiencies. But who defines the standards? This article examines how the changing practice of human rights compliance may have “feedback effects” on hard law, particularly by changing the scale of negligence. Regarding the lack of effectiveness of some due diligence measures, especially in the “certification industry”, it is then asked how legislation may proactively exert influence by defining effective CSR instruments necessary to prevent civil and criminal liability. Using the example of German law, a proposal is made to implement an obligation of human rights due diligence in “hard law” and, simultaneously, set up an independent expert commission that drafts guidelines specifying the necessary measures for different kinds of companies.     

Mapping Human Rights, Reading the European Union

Abstract: The EU's human rights policy has provoked increasing scholarly attention over the last decade. Yet rarely has it been subjected to rigorous analysis in the context of any integration theory. This article is an attempt to rectify the omission. By building on the approach of historical institutionalism, whilst at the same time recognising its analytical deficiencies, a method of reading the EU and interpreting its human rights policies is promoted. Specifically, the article contends that an analysis based on the textual nature of the EU and the configuration of this text through ‘institutional narrative’ will enable a better understanding of the institutional logic behind the construction of human rights policy. An agenda for research and analysis is thus suggested that might map the development of human rights in the EU and predict the compass of future policy direction more effectively.     

Human Rights – Human Bodies? Some Reflections on Corporate Human Rights Distortion,The Legal Subject, Embodiment and Human Rights Theory

This paper responds to the subversion of international human rights discourse by corporations. It begins by placing such subversion in three contexts: the ascendance of human rights as the dominant discourse of contemporary moral and political life; the emerging challenges to human rights posed by other-than-natural-human entities; and ambiguity in the relationship between the legal subject and the human being. The author suggests that in order to resist corporate human rights distortion it is important to reclaim the language of the human for the natural human being, despite complex philosophical and definitional challenges attending the designation of the term ‘human.’ The author suggests that by re-attending to the implications of human embodiment for human rights theory it might be possible to re-invigorate the protective potential of human rights for vulnerable human beings and communities against powerful disembodied legal persons (corporations).     

Beyond ‘Don't Be Evil’: The European Union GSP+ Trade Preference Scheme and the Incentivisation of the Sri Lankan Garment Industry to Foster Human Rights

Orthodox discourse on business and human rights tends to conceive of the human rights responsibility of corporations in terms of minimising the negative human rights impacts of their own activities, as opposed to exerting a net positive effect on human rights. On 15 August 2010, however, Sri Lanka's access to the EU's Generalized System of Preferences (GSP)+ trade incentives was withdrawn for reasons relating to that country's human rights record, creating an actual positive economic incentive for Sri Lankan businesses to actively engage the government on its human rights record. In this context, the author explores the potential for the Sri Lankan garment industry, which is highly dependent on exports to the EU, to effect positive human rights change in Sri Lanka.     

The Hard Sell: Promoting Human Rights

The Human Rights Act 1998 is one of the most important constitutional reforms to have been implemented by the New Labour administration in Britain. In addition to incorporating the European Convention on Human Rights into domestic law, its main ambition is the creation of a human rights culture. However, while citizens appear to have very little understanding of what the legislation entails, there is a strong tide of negative media publicity which depicts the Human Rights Act as a ‘villains’ charter’. It has been suggested that the government should do more to promote human rights. This paper reflects on how this may be achieved. An important strategy for creating a positive public awareness of human rights involves eradicating myths which have been allowed to flourish in sections of the British press. However, drawing on the work of Roland Barthes, this paper argues that this may be an unattainable goal. Human rights are empty signifiers which invite mythical appropriation. Both proponents and detractors of human rights legislation mobilise this capacity for mythmaking in their rhetoric.