RIGHTS AS TRUMPS OF WHAT? Blocher, Joseph
Harvard law review,
04/2019, Volume:
132, Issue:
6
Journal Article
Peer reviewed
Blocher comments on Greene's article which explores two competing frames that have emerged for adjudicating conflicts over rights. Greene argues that the first frame has been broadly employed by the ...Supreme Court in recent decades, but that it has special pathologies that ill prepare its practitioners to referee the paradigmatic conflicts of a modern, pluralistic political order. The author argues that trumps can be triggered not only by the pathological frames that Greene identifies, but also by scenarios where particular laws, even if well-intentioned, go too far in terms of the burdens they impose on rights-holders.
Even though they represent almost 50% of all reported cases before the European Court of Human Rights (ECtHR), settlements of human rights violations escape scholars' attention. While victims are ...increasingly expected to resolve their disputes amicably, it is unclear whether applicants will be better off accepting settlement offers rather than proceeding to litigation. The article charts the practice of friendly settlements before the Court from the 1980s to today, mapping a shift in approach from seeking bilateral solutions to the proactive role of the Registry as mediator encouraging states and applicants to settle their cases to relieve the Court of the heavy workload. The study of 10,500 cases reveals how strategies adopted by the Registry-from procedural changes to how and when consent is given to settlement, to the framing of settlement offers, and a close relationship with representatives of the respondent stat-have favored the most frequent violators of the European Convention on Human Rights and sidelined the interests of the applicant. The analysis uncovers that the imbalance between parties and lack of enforcement are very much present in the ECtHR settlement system and that the active role of the Registry has reinforced, rather than redressed these concerns. The findings expose the dangers of pursuing en masse settlement in the human rights context and raise concerns about achieving long-term justice for victims of human rights violations through other means than adjudication.
The corporate responsibility to respect human rights was formally introduced in 2011 with the unanimous endorsement of the UN Guiding Principles on Business and Human Rights (UNGPs) by the UN Human ...Rights Council. It is grounded in social expectations and forms part of the companies' “social license to operate.” This paper argues that this responsibility is progressively turning into a legal duty for lead companies to respect human rights in those types of value chains which are characterized by a high level of control by a lead company over its business partners. Our argument rests on two recent legal developments. Firstly, the article analyzes the judicialization of the corporate responsibility to respect in the case law on parent company liability in various jurisdictions, which, we argue, is highly likely to have some implications in relation to certain types of value chains so as to trigger the liability of lead companies for the human rights harms arising out of the activities of entities over which they exercise sufficient control. Secondly, the article delves into the legislative developments which increasingly require lead companies to exercise due diligence so as to prevent and address adverse human rights impacts in their own activities and global value chains.
This book brings together researchers from the fields of international human rights law, EU law and constitutional law to reflect on the tug-of-war over the positioning of the centre of gravity of ...human rights protection in Europe. It addresses both the position of the Convention system vis-à-vis the Contracting States, and its positioning with respect to fundamental rights protection in the European Union. The first part of the book focuses on interactions in this triangle from an institutional and constitutional point of view and reflects on how the key actors are trying to define their relationship with one another in a never-ending process. Having thus set the scene, the second part takes a critical look at the tools that have been developed at European level for navigating these complex relationships, in order to identify whether they are capable of responding effectively to the complexities of emerging realities in the triangular relationship between the EHCR, EU law and national law.
Chapter 10 of this book is freely available as a downloadable Open Access PDF under a Creative Commons Attribution-Non Commercial-No Derivatives 3.0 license. https://s3-us-west-2.amazonaws.com/tandfbis/rt-files/docs/Open+Access+Chapters/9781138121249_oachapter10.pdf
ABSTRACT Esther is one of many young Maasai girls in Kenya “rescued” from early marriage. Her story is conventionally portrayed (trans)nationally and locally as a struggle between conservative ...pastoral patriarchs and the individual right of young girls to an education. I offer an ethnographic contextualization of the underlying factors giving rise to practices of early marriage, among the Maasai in Enkop, highlighting the contemporary predicaments of pastoralism in the face of population growth, climactic instability, and land‐tenure reform and the insecurities and challenges around formal education. Through the intimate portrayal of Esther's case, early marriage is situated not as a relic of tradition and malicious patriarchy but, rather, as a contemporary adaptation to livelihood insecurity. I illustrate how prevailing concepts of “tradition,”“culture,”“victimhood,” and “collective rights” in human rights theory obscure important structural factors that give rise to early marriage and deflect attention from effective policy initiatives.
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