New PDF release: Hierarchy in International Law: The Place of Human Rights

By Erika De Wet, Jure Vidmar

ISBN-10: 0199647070

ISBN-13: 9780199647071

This publication takes an inductive method of the query of no matter if there's a hierarchy in overseas legislation, with human rights tasks trumping different tasks. It assesses the level to which this sort of hierarchy could be stated to exist via an research of the case legislation of nationwide courts. each one bankruptcy of the e-book examines household case legislations on a subject the place human rights responsibilities clash with one other overseas legislation requirement, to determine no matter if nationwide courts gave priority to human rights. If this can be proven to be the case, it's going to lend aid to the argument that the foreign criminal order is relocating towards a vertical criminal process, with human rights at its apex.

In resolving conflicts among human rights responsibilities and different components of foreign legislations, the perform of judicial our bodies, either family and overseas, is important. Judicial perform exhibits that norm conflicts in most cases take place themselves in occasions the place human rights responsibilities are at odds with different foreign tasks, equivalent to immunities; extradition and refoulement; alternate and funding legislation; and environmental security. This publication units out and analyses the appropriate case legislation in all of those components.

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This publication takes an inductive method of the query of no matter if there's a hierarchy in overseas legislation, with human rights duties trumping different tasks. It assesses the level to which this kind of hierarchy might be acknowledged to exist via an research of the case legislations of nationwide courts. every one bankruptcy of the booklet examines household case legislation on a subject matter the place human rights duties clash with one other overseas legislation requirement, to determine even if nationwide courts gave priority to human rights.

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While human rights bodies regularly reiterate the right of states to control who can enter and reside in their territory, the Convention Relating to the Status of Refugees of 1951 and its 1967 Protocol apparently provide an international exception. For states parties, there is an obligation not to refoule a person who qualifies as a refugee. Nonetheless, this constraint on states’ sovereign powers gives rise to several issues pertaining to hierarchies and regime interaction. For example, there is no treaty body established by the 1951 Convention to determine the rights of the applicant for refugee status where the state seeks to deny them, so questions about the meaning of the treaty are determined in national courts.

In sum, the authors of the respective substantive chapters will be guided by five questions: 1. Are the inter-regime norm conflicts of a narrow or a broad nature, or can both types of conflict be identified? Can intra-regime norm conflicts (amongst human rights norms themselves) also be identified? (p. 8 ) 2. Do judicial decisions resolve the norm conflicts by means of acknowledging a hierarchy of norms? If so, is it possible to determine that the values underpinning a particular norm, such as a jus cogens obligation, play a decisive role?

This relationship has attracted significant attention in academic writings. For a very recent work addressing this issue see Ben-Naftali (n 9). ) See Chapter 3. ) See Mus (n 6) 216; see also Chapters 2 and 3. ) See De Wet (n 10) 71. ) See Chapter 6. 0002 Abstract and Keywords This chapter examines the notion of a hierarchical international legal order whereby (certain) human rights norms are elevated to a hierarchically superior level. Although international law has developed as a horizontal system of norms, the notion of hierarchically superior norms is not new.

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Hierarchy in International Law: The Place of Human Rights by Erika De Wet, Jure Vidmar


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