published_or_final_version / Public Administration / Master / Master of Public Administration

The purpose of this research paper is to examine how international humanitarian law (IHL) and international human rights law (IHRL) are applied to the Guantánamo Bay detention center. This paper was completed through the research of international treaties, court cases, and secondary sources that thoroughly discussed issues pertaining to Guantánamo and international law. This paper first examines the differences between the two laws by looking at the particular roles each is meant to play in the subject of international law, as well as how the two have been applied thus far to the situation at Guantánamo. Second, the paper discusses the topic of whether or not IHL and IHRL should be mutually exclusive, or can be interpreted alongside each other. In addition, a discussion of the opposing viewpoints on this topic will be presented including the United States argument of lex specialis, and the opposing arguments of the international community. Chapter three will cover the topic of extraterritorial application and how it affects the international treaties and court cases that deal with issues pertinent to Guantánamo. The fourth chapter discusses the effects that Guantánamo has on the reputation of the United States internationally, and how it affects human rights around the world. Chapter five discusses possible recommendations in order to achieve the long-term goal of ending the Guantanamo Bay controversy, and protecting and promoting human rights everywhere.

"The enjoyment of all human rights by all persons is the ultimate horizon of democracy. It is generally admitted that democratic societies are less likely to violate human rights. The good human rights records of these societies can be justified, among others, by the promotion of a strong legal culture, which provides procedural avenues for allocating responsibility for human rights violations. Thus, the protection of human rights follows from the functions of law in society, and the nature of human rights claims. At the national level, human rights are protected by both domestic and international mechanisms. Therefore, the human rights claims should be based on violations of either domestic law or relevant provisions of operational international human rights instruments. However, most of the time this is not the case, especially in Africa. Many African states have ratified several international human rights instruments, but the record of the way the latter are applied in their respective judicial systems remains very poor. This study aims to analyse the case of Burundi, one of these state whose judicial system only rarely applies international human rights instruments in spite of the importance devoted to them by the Constitution. It must be understood that international human rights as a source of law will be referred to, in this study, both as a source of rights and as a source of interpretation of domestic human righs instruments such as the Bill of Rights. ... Chapter one will set out the content of the research, identify the problem and outline the methodology. Chapter two will focus on the status of international law in domestic legal systems. It will highlight the theories that have been used to determine the relationship between international and domestic law in general. Chapter three will analyse on basis of some samples of cases how the Burundian courts interpret and apply international human rights instruments. Chapte four discusses the role played by the Burundian lawyers in the enforcement of these instruments. Chapter five will draw [a] conclusion and recommendations." -- Introduction. / Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2005. / Prepared under the supervision of Professor Grace Patrick Tumwine-Mukubwa at the Faculty of Law, Makerere University in Kampala, Uganda / http://www.chr.up.ac.za/academic_pro/llm1/dissertations.html / Centre for Human Rights / LLM

This thesis develops a potential strategy for carrying out humanitarian intervention in Syria using the legal justification and policy framework of the Responsibility to Protect (R2P) doctrine.

For decades LGBTQ rights have been approached purely by a legal strategy, in particular advocating for the legalization of same-sex marriage. However, discrimination and violence against the LGBTQ community continues to be a major issue in Latin America because of cultural values such as Catholicism and machismo that uphold a standard of and, in turn, have control over people’s sexuality. Using a human rights approach towards the politics of sexuality, LGBTI activists in Costa Rican and Nicaragua have been successful in transforming public opinion about sexuality and more importantly, sexual diversity. As a result of their egalitarian framework and efforts to educate people about sexual diversity, they have made great advancements toward achieving acceptance and equality for LGBTI people. This study focuses on how Costa Rican and Nicaraguan LGBTI activists have worked around traditional cultural values such as Catholicism and machismo that prevent people from accepting and tolerating LGBTI people. The examples of LGBTI activists in these two countries have important implications for other LGBTI activists and the strategies they use to try to achieve full equality (social and legal) for people whose sexual identity differs from the conventional.

The United Nations has created an abundance of human rights treaties and declarations over the decades to promote a culture of human rights and to set normative provisions of human rights standards for all states to follow. This broad effort is supplemented by the work of regional human rights organisations, which aim to ensure implementation of these fundamental precepts, and to enhance its work to suit its regional circumstances, offering a protective source of jurisprudence at the domestic level. One such organisation, which this thesis examines, is the Arab League. In critically examining the history and the work of the Arab League, the study highlights the deficiencies in promoting and protecting human rights. In this context, this thesis critically examines the Arab League’s development and relationship with the wider international human rights apparatus. It provides a comprehensive overview of the system of the United Nations and its specialised organs that with the resolutions adopted helped the League establish its own regional human rights systems. It traces the history of the application of international human rights discourse in the Arab world. Accordingly, an attempt is made to conceptualise the universality of human rights in the region and the impact of the Shariah discourse. It then attempts to provide an analytic description of the Arab League and background to the region and undertakes an in-depth critical analysis of the structure of the League and assesses its impact in the region, all of which may have incentives to the League’s attempt to institutionalise, promote and protect human rights. The study considers the efforts made by the Arab Permanent Commission on Human Rights and its specialised agencies that ultimately led to the adoption of the Arab Charter on Human Rights (1994). After examining the limitations of the Commission and its work, the scope and structure of the revised Arab Charter on Human Rights (2004) is critically analysed. The study also examines and evaluates the legislative framework of the Arab Human Rights Committee (the Charter’s enforcement mechanism as per Art.45). A case study of the Syrian Arab Republic and the analysis of continuing violations of human rights in the region illustrate the deficiencies and limitations of the Arab League as a regional organisation.

Female genital mutilation (FGM) is a global problem that stems from gender inequality. Increased migration from countries that perform FGM to England has led to the practice travelling across borders. FGM is subject to heightened political debate and media sensitivity in the England and across the Western world. Debates about FGM often proceed from a universal standpoint that the practice should be prohibited through law. However, the efficacy of FGM legislation is questionable and rarely subjected to scrutiny. Despite implementing a criminal offence of FGM in 1985 and introducing subsequent stringent legal changes, there has not been one conviction for a practice, which remains prevalent in England. A failure to secure convictions for a practice that continues suggests that the law has left women and girls unprotected. To understand why the practice persists in a context in which FGM is criminalised, this thesis aims to address the potential and limitations of social and cultural change through the law. My qualitative research findings are based on two focus groups each with 11 women from FGM-performing communities and 79 semi-structured interviews with women and stakeholders who are responsible for designing and enforcing FGM legislation, including legal professionals, police officers, Members of Parliament and Members of the House of Lords. I chose to interview these two groups of participants to understand the different perspectives of women subject to the law and stakeholders responsible for enforcing the law. The interview data shows the importance of an intersectional analysis of FGM that accounts for women’s experiences of gender, race, ethnicity, nation, nationality and religion. While FGM is performed upon girls and women’s bodies to control their sexuality, women also identified FGM as representative of other identity issues including race, group rights, migrant culture and religion. The data highlights the complex meanings women ascribe to FGM and the challenges they encounter in accessing the criminal justice system. In contrast, stakeholders believe anti-FGM legislation is a means for the state to eliminate ‘cultural’ violence against women and girls and enforce British values upon minority groups. The findings from the interviews with women and stakeholders revealed a stark divide in the two groups understanding of FGM and their attitudes towards the law. Examining FGM in the context of criminalisation from two different perspectives highlights the core barriers to the enforcement of law.

In this dissertation I argue for the need to develop a Metis Critical Legal Theory, or “MetCrit”, a theory that is particular to the cultures, issues and concerns of Metis people. Suggestions towards the development of MetCrit are proposed in light of the difficulties of Metis rights claimants in British Columbia following creation of the “historic community connection” test in R v Powley, the leading case on the constitutional protection of Metis rights in Canada. Misconceptions about BC Metis history and about Metis communities generally have resulted in legal decisions that hold there are no historic Metis communities in BC, and thus no communities capable of meeting the Powley test. The BC situation reveals that Powley, as it is currently interpreted, cannot adequately deal with the realities of Metis history or with Metis conceptions of community, and that the community connection test itself is flawed. MetCrit is proposed as a possible lens through which to examine BC Metis rights cases in light of the historiography of the Metis of BC, and through which to critique the Powley court’s attempt to concretize Metis community identities. I suggest that MetCrit could provide spectrums of space for avoiding some of the dualities that are reflected in Canadian legal and historical accounts of Metis people and communities. / Graduate / 2020-04-19

Females are becoming a prominent population within America’s correctional facilities, which has led to incarcerated females increasingly becoming the popular subjects of more recent research. Along with the growing population of female inmates, the rates of sexual and physical victimization reported by incarcerated females is rapidly growing. The purpose of this project is to evaluate the pre-established correlation between mental health diagnoses, and the prior physical and/or sexual abuse of female inmates within the custody of correctional institutions, outline the current treatment process, and devise a revision of the treatment process in order to improve the future of mental health care for incarcerated females. First, a brief description of the increasing female inmate population, their significant mental health care needs, and the lack of effective mental health care they are actually receiving, followed by the issues that this poses to rehabilitation and the community will be provided. Second, an examination of the commonality of childhood physical and/or sexual abuse among the female offenders that have been diagnosed with mental illnesses will be conducted. Next, a discussion of the most common mental health diagnoses of incarcerated women, what they are said to be caused by, and how they are being treated behind bars will be directed. Finally, a conclusion covering the established relationship between physical and sexual abuse and adult mental illnesses, the issues that the lack of adequate mental health care for incarcerated females poses, and what can be done to change and improve the future will be presented.

The United States has justified targeted operations against suspected terrorists as a legitimate tool in the war against terrorism. In response to international criticism that a November 2002 targeted killing operation in Yemen violated human rights standards, the US asserted that the right to life was suspended during war. While this assertion is prima facie incorrect, many legal experts, scholars and authors agree in principle that a military response to international terrorism -- along with the concomitant dilution of the right to life -- is not only appropriate, but also complies with international law. However, the modern jus ad bellum limit the circumstances in which a state may lawfully resort to armed force. A fulsome understanding of international humanitarian law and the characteristics of groups such as Al Qaeda reveals that international law does not permit states to employ their military forces to responde to the international crime of international terrorism.