This thesis is concerned with reparation for human rights and international humanitarian law breaches committed by or attributed to international organizations. These breaches constitute internationally wrongful acts which according to the International Law Commission's Draft articles on the responsibility of international organizations, give rise to an obligation on the offending organization to afford reparation. However, in practice, the obligation to afford reparation is unimplemented. The thesis explores why this is. The thesis considers how the law of responsibility intersects with the specialised regimes of human rights and international humanitarian law and particularly, their application to remedies and reparation owed to individuals. It reviews the various gaps in the normative framework and the limitations of existing redress mechanisms. The thesis analyses the cogency of the arguments and rationales that have been used by international organisations to limit institutional liability and the scope and functioning of redress mechanisms, included by the resort to lex specialis principles. It is postulated that the standards of reparation must be drawn from the nature of the breach and the resulting harms and not by who is responsible for the breach. In this respect the thesis is an exercise in the progressive development of the law. Having determined that existing redress mechanisms cannot afford adequate or effective remedies and reparation, the thesis explores how to move towards a model that achieves greater compliance. Indeed, should it be accepted that international organizations must afford remedies and reparation for breaches of human rights and IHL that correspond to the standards that exist in those specialised fields then it is argued that there is a corresponding obligation on them to put in place the modalities for that to be achieved.

In 2005 States accepted that there is a responsibility to protect ('RtoP') populations when "man's inhumanity to man" rises to the fore and that those entrusted to respond effectively should undertake appropriate protective action, not simply rely on 'it' going away. The question which the thesis explores, largely from a legal and practice based perspective, is what the evolution of each component of RtoP discloses, over the past seven years, about its scope, status, viability and, more specifically, whether RtoP as it currently stands adds value to, or just newly packages, old protection policies. The extensive practice reviewed, including over four hundred State views and fifteen country-specific studies, identifies which positions in the existing literature on RtoP may require revisiting, and what issues merit greater attention given their potential practical and policy significance. Where appropriate, the established field of minority protection is utilised to ground assessment of RtoP's value added and identify possible policy implications of, or explanations for, the development of a responsibility which is still in its formative years. In so doing, present understandings of RtoP's relationship to minority protection are examined and developed. The view taken is that RtoP's relationship with existing protection mechanisms is multifaceted and evolving, adding value in some ways but also creating points of departure. Whilst the broad based State support for RtoP developed since 2005 is cause for celebration, the Libya and Syria conflicts illuminated tensions inherent in RtoP, including whether it is possible to resist regime change and remain neutral in civil wars where governments perpetrate RtoP crimes. Until there is a greater cohesion among policymakers to address some of the controversial issues and other outstanding ambiguities, then it is quite likely that the focus on 'RtoP' from 2005 will now shift perhaps to more 'PtR' - 'Protecting the Responsibility'.

Orientador: José Blanes Sala / Banca: Sérgio Luiz Cruz Aguilar / Banca: José Geraldo Alberto Bertoncini Poker / Banca: Jorge Luís Mialhe / Banca: Gilberto Marcos Antonio Rodrigues / Resumo: Esta pesquisa teve como objetivo verificar a aplicabilidade do princípio da primazia da norma mais favorável ao indivíduo nas sentenças e opiniões consultivas proferidas pelas Cortes Européia e Interamericana de Direitos Humanos. Esta investigação foi feita por meio de uma análise da aplicação do princípio pro homine, nos tribunais europeu e interamericano dos direitos humanos, sob os pontos de vista da doutrina, jurisprudência e opiniões consultivas emitidas pela Corte Interamericana de Direitos Humanos e pelo Tribunal Europeu de Direitos Humanos. / Abstract: This research aimed to investigate the employ of the principle of the primacy of the most favorable rule to the individual during the judgments and advisory opinions given for the Inter-American Court of Human Rights and European Court of Human Rights. The analysis was done evaluating the application of the pro homine principle in the referred courts about the doctrine jurisprudence and advisory opinions given for the Inter-American and European Courts of Human Rights. / Doutor

M.A. (Politics) / Please refer to full text to view abstract

Values are operative in all of human rights law. That is an organizing principle of the entirety of this work. I have endevoured to remain true to a self-consciously value-orientated approach to elaborating a model against race discrimination in EU law, and 1 have made no attempt to disguise the substantive values which underpin it, or the commitment to protect fundamental human rights above market goals. While values are controversial, and while reasonable people will disagree on their application, it is submitted that attempting an articulation and exploration of those at work in antidiscrimination law is essential. Values are not, however, plucked from the abstract, and this is how context introduces itself, and remains central to this work. Context is viewed as determinative of values, and therefore of laws and their application. Chapter II offers a contextual definition of race and racism, looking to how a contextualised approach forces us to go beyond formalistic categorise and assumptions of objectivity in anti-discrimination law. The hope is that by freeing our legal conceptions of these categories, we may more fully appraise the extent of discrimination in context, and allow for more progressive strategies to combating it. Chapter III follows from the theoretic position established in Chapter II, looking to various aspects of the 'European context,' its history of immigration and the constitution of its diverse population. This chapter describes the political climate that prevails today and the rise of the extreme right in the past decade, as well as the social and economic consequences of racism in context. It examines also the emergence of 'Eurocentrism' as a new form of ethnocentrism specific to Europe, and partially reinforced by EU law. Chapter IV also relies on the contextual approach of Chapter 11 but applies it to a legal context. It examines the legal context of race discrimination in EU law, with special emphasis on the legal construction of race through the distinction between EU Nationals and Third Country Nationals. This discussion traces the roots of that foundational distinction to Member State laws and looks to the ways in which EU law has replicated and amplified it, and more importantly, to the ways in which it supports a racialised or even racist construct. The focus of this discussion is therefore de jure discrimination which effects race discrimination and how EU law participates in constructing racial Other. Chapter V concerns the corollary de facto discrimination affecting all minorities residing in the EU, but highlights this discrimination as the 'central case' because it afflicts minority EU citizens in the exercise of their EU law rights: in this way it is about insiders who are treated as Other. This chapter examines discriminatory contexts as they are reinforced by aspects of EU law, and as they generate an EU obligation to act from within EU law itself. Chapter VI is a theoretic excursus, which considers the multitude of choices which the anti-discrimination law may embody, dividing these into two basic poles: the liberal perspective and the alternative perspective. A number of central substantive tenets of anti-discrimination law are analysed from the perspective of these two poles. The second part of the chapter applies this theoretic modality to EU law, again considering substantive tenets in EU law in the light of the two poles of anti-discrimination law, with special emphasis on Article 13 and the new Race Directive. A final part of this chapter considers form and the adequacy of the current EU law anti-discrimination model in the light of other existing models. Chapter VII builds on Chapter VI but looks 'behind' the poles that present themselves in EU law, to the normative justifications and aims of anti-discrimination laws. Once again, this issue presents a multitude of choices. This chapter focuses on one such choice involving two distinct orientations in EU law: the Single Market and fundamental human rights. These are considered in tum as justifications for action against race discrimination, and it is argued that a balance between them is needed in EU law. Beyond that mutually defining coexistence, it is also argued that where they are irreconcilable, the normative prioritisation should favour fundamental human rights. An overarching theme of this work is the acknowledgment of the centrality of context and the duality of anti-discrimination law in terms of theoretic models, substantive choices and normative justification and aims. Acknowledging these offers a stronger model for combating discrimination in novel and sui generis contexts, such as the legal context of the EU, allowing us transcend existing legal models in search of more effective synergies. EU law cannot combat race discrimination without acknowledging the sui generis nature of its social and legal contexts and the politics and norms at work at all its levels, or without recognising the specific challenges presented by an economic law burgeoning fundamental rights provisions, or by the sheer diversity of standards and traditions and legal rules that exist within its boundaries.

From 1945 to 1960 Canada began to move into what has been called “the age of rights.” At the end of the Second World War the nation paid lip service to “British liberties,” but both the state and private individuals frequently violated the libertarian rights of political radicals as well as the egalitarian rights of certain unpopular ethnic and religious minorities. By 1960 a discourse of human rights had largely replaced the British liberties approach, and the country enjoyed a far higher level of respect for minority rights, in part because of a number of legal changes—Supreme Court decisions, anti-discrimination legislation, and a Bill of Rights. This dissertation examines this shift, focussing upon the activities of members of the Canadian “human rights policy community.” Relying largely upon primary resources, it presents a number of case studies, demonstrating how human rights activists dealt with the deportation of Japanese Canadians, the Gouzenko Affair, the problem of discriminatory restrictive covenants, the Cold War, the need for an effective fair accommodation law in Ontario in general and the town of Dresden in particular, and the struggle for a bill of rights. In presenting these case studies, this dissertation also focusses upon the activities of a number of key interest groups within the human rights community: the coalition known as the Cooperative Committee on Japanese Canadians, the Canadian Jewish Congress, the Jewish Labour Committee, and a number of civil liberties organizations (especially the liberal Civil Liberties Association of Toronto and the communist Civil Rights Union). Attention is paid to the reasons for their successes and failures; within the general context of economic, social, and cultural changes, special attention is paid to the way in which these interest groups made their own history, using their own history, using the resources available to them. / Graduate

No abstract / Dissertation (LLM)--University of Pretoria, 2013. / Centre for Human Rights / unrestricted

LL.M. (Human Rights Law) / This research considers the potential for conflict between human rights and intellectual property rights (IPRs) in South Africa. I argue that this conflict is brought about by the fact that the interests which are served by these two areas of law are different. Human rights have a broader outlook in that they seek to provide conditions required for people to lead lives that are worthwhile, while IPRs are narrower in that they primarily seek to reward inventors or creators of works. The first chapter looks into the nature of human rights and IPRs and also traces some of the origins of the clashes between the two rights. The second chapter attempts to determine if IPRs are considered human rights in South Africa. This chapter also reviews the first case where human rights and IPRs were considered together in South Africa. In the third chapter, medical patents are considered with a view of deriving some learnings from other developing countries. This work will conclude with the proposition that where there is conflict, certain human rights must take priority over IPRs.

Magister Legum - LLM / In this minithesis, I demonstrate that International Humanitarian Law and International Human Rights Law are two distinct but related fields of law. First, the examination deals with the instance that the aim of both branches of law, the protection of human rights, is common, but the approach to reach this aim is different. In this regard, I show numerous points of divergence of both branches of law which have their origin in the fundamentally different historical developments of International Humanitarian Law and International Human Rights Law. I give the main attention to the application of both sets of law, whereby the contractions and legal gaps of the protection of human rights become apparent. The proposals dealing with the solution of these issues are discussed. I argue that a new legal instrument for a comprehensive and compatible protection of human rights is necessary, especially in times of internal strife. Regarding the question as to whether International Humanitarian Law or International Human Rights Law should apply if both branches are applicable, I take the view to apply the roman principle of law lex specialis derogat legi generali in such a way that the more specific rule whenever they have a specific justification for dealing with specific problems is applicable. Both branches of law do not merge to one, but they converge to a harmonious relationship, where they complement each other and provide the highest protection of human rights. / South Africa

Magister Legum - LLM / South Africa