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This Article identifies and explores the justifications or rationales offered by national court judges in support of their references to international human rights law. It does not analyze the extent to which judges invoke international law; rather, it examines the reasons offered by judges to explain their references to international law. The focus is on leading decisions rendered by higher courts in the United States and Commonwealth jurisdictions where the international norms do not bind decision-makers because they have not been made part of domestic law through an act of incorporation, the relevant treaty has not been ratified, or the ratifying state has filed a reservation limiting a treaty's domestic effect.
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Women’s pain and death blurs the distinction between war and peace. Women are disproportionately starved, attacked physically, emotionally and psychologically, and killed during both war and peace. This paper focuses on the sanctions imposed against Iraq by the United Nations Security Council (“Se- curity Council”) in response to Saddam Hussein’s invasion of Kuwait in 1990 and the on-going purported threat posed to international peace and security by the Iraqi regime. Intended as a humane alternative to war, the sanctions have nonetheless lead to such high levels of death and suffering, particularly among women and children, that commentators have labeled them “genocide,” a “medieval military siege,” and “a humanitarian disaster comparable to the worst catastrophes of the past decades.”
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This paper presents a particular reading of Truth and Method, Hans-Georg Gadamer's landmark text, as a lens through which to consider the meaning of international texts in domestic contexts. Gadamer's thoughts have been the subject of inquiry and controversy across legal lines; yet, they remain virtually unknown within international human rights law. His absence within this circle is unfortunate because Gadamer takes up questions concerning culture, perspective, difference, and authority - issues that no international human rights scholar can hope to ignore. More importantly, however, Gadamer addresses these issues within a theory of language that proves relevant to the very structure of international human rights law itself, given that it lacks a third party arbitrator authorized to pronounce on meaning. The judicial use of international law within domestic courts brings this feature of the international regime into stark relief because the rising judicial reliance on international law has the potential to generate as many meanings of international texts as there are courts willing to engage those texts. Truth and Method expounds a theory of language that recognizes the authority of international texts and international law's governance ambitions while still accommodating variations in interpretation between national jurisdictions.
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The author argues that the apparent collapse or erosion of the Oakes test reflects the problem of fitting a right such as freedom of expression, which is social and relational in character, into a structure of constitutional adjudication, which is built on an individualist conception of rights. In the leading Canadian freedom of expression cases, the task for the courts under section 1 is not simply to strike the proper balance between competing interests, but rather to resolve the single but complex question of whether the expression contributes to, or undermines, human agency or autonomous judgment. In these cases, the “value” of expression and the “harm” of expression are not distinct issues, but rather two sides of the same basic issue. Whether expression is more likely to contribute to insight and judgment or to manipulate and lead to an unreflective response is a relative judgment that will depend significantly on the social and economic circumstances in which it occurs. This issue fits awkwardly within an adjudicative structure that is based on an individual liberty model of rights. The author argues that this awkwardness accounts for the “erosion” of the Oakes test in freedom of expression cases and more specifically for the court's increasing, and inadequately justified, deference to legislative judgment under section 1.
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When poverty activist resort to the Canadian Charter of Rights and Freedoms, things cannot be going very well. The Charter of Rights will not eliminate poverty or gross disparities in wealth. It will not ensure that affordable housing is provided to those in need. All it may be able to do is to protect the individual’s right to ask others for help, to beg in the streets.
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This is one of the first articles written in Canada on racial profiling and policing. While dated, the piece set out standards that can be used to prove racial profiling and recommended enhanced Charter standards to facilitate adjudication. As noted in the Introduction: