Edizioni FrancoAngeli - Last issue of DIRITTI UMANI E DIRITTO INTERNAZIONALE (1/2012)

Military Occupation and The Protection of The Right to Private Property

Fri, 15 Mar 2012 8:00:00 GMT

Noemi Corso
Moving from the complementary relationship between International Humanitarian Law and International Human Rights Law, this article analyses the issue of private property in occupied territory from the civilians perspective. In the attempt to verify if contemporaneous practice has modified customary international law obligations of Occupying Powers, the Author highlights the complex and heterogeneous evolution of the protection of the right to private property. On the one hand, practice confirms the strengthening of its safeguard by the extensive interpretation of the absolute prohibition on confiscation, forbidding an occupying power to take "permanent" measures of dispossession and de facto transfer of title. The same result is achieved by the enlargement of the material scope of application of the crime of pillage, and by the narrow interpretation of the derogation clause of the "absolute necessity of military operations", contained in the rule prohibiting the destruction of private property. Moreover, practice’s development proves the existence of a privileged class of assets (such as foodstuffs, houses, or medical supplies), whose essential nature to the well-being of the civilian population makes them object of a stronger guarantee. On the other hand, recent trends show a weakening in the protection of the right to private property, above all within the context of prolonged occupation as well as trans- formative one. The occupant’s widest powers of requisition of private property in these particular cases interfere in a deeper manner with the enjoyment of the right in hand, partly justified by the more and more flexible interpretation given to the general conservationist principle of military occupation law. Actually, this weakening is only apparent. From a broader point of view, the less protection of the right to private property is counterbalanced by the use of the proportionality test, to assess if occupying power action respects the other human rights of the civilian population.

The Current Situation and Prospects for Regional System(s) of Human Rights in Asia

Fri, 15 Mar 2012 8:00:00 GMT

Wu Xiaodan
It is universally recognized that regional human rights systems are likely to be more successful than their global counterparts. Asia is the last major region in the world that does not have any region-wide treaty or mechanism directed towards the promotion and protection of human rights. During the last decades, especially since the 1990s, the Asian States are moving towards acceding to or adopting treaties to define and protect human rights, which seems to argue for the creation of regional human rights institutions. This article addressed the prospect of regional human rights system (or systems) in Asia based on the current efforts towards, the recent development of and the obstacles to the establishment of such system(s) with an emphasis on the position of China.

Supranational Instruments on the "Child’s Right To Be Heard"

Fri, 15 Mar 2012 8:00:00 GMT

Ornella Porchia
The article deals with the various international instruments referring to the children’s right to give their opinion in proceedings concerning them. These instruments represent a step forward in the recognition of children's rights. Indeed, they consider children no longer merely as the object of protective measures, but rather as subjects of procedural "rights". The article aims to offer an overview of the International treaties (such as the 1989 UN Convention and the 1996 Strasbourg Convention on children’s rights) and the European Union Law (such as the Charter of Fundamental rights) relevant on the topic. The paper then proceeds to take into account the effects of these instruments within the Italian legal order. Finally, the article focuses on the judicial level in order to find out which "supranational" court is called to play the most relevant role in the interpretation of the child’s "right to be heard", bearing in mind the complexity of the relationship between the different systems in place (international, European and national).

The Right to ‘Special Food’ under Art. 9 of the European Convention on Human Rights

Fri, 15 Mar 2012 8:00:00 GMT

Maria Clara Maffei
The article analyzes some paradigmatic cases concerning the religious or cultural value of food which have been brought to the attention of the monitoring bodies instituted by the European Convention on Human Rights. Problems may arise in particular when individuals (e.g. prisoners, hospitalized people, military personnel, children at school) have to rely upon the State to provide sustenance. However, the Convention contains no reference to cultural or religious aspects of food nor to cultural rights in general. From this analysis it emerges that a right to "cultural" food could be framed in "wider" rights (e.g. freedom of thought, conscience and religion, right to respect for private and family life, protection of property, prohibition of torture) as it is an aspect of them. While it is clear that not all dietary choices deserve protection and abuses should be avoided, the different interests of the State should be balanced against the interests of individuals who need special food for religious, conscience or cultural reasons. The balance has to be fair and this includes the possibility for States to offer valid dietary alternatives, although in some cases, as for many other human rights, States will continue to be able to restrict the rights of individuals on different grounds.

The Committee on Enforced Disappearances: Challenges Ahead

Fri, 15 Mar 2012 8:00:00 GMT

Gabriella Citroni, Maria Giovanna Bianchi
The International Convention for the Protection of All Persons from Enforced Disappearance was adopted on 20 December 2006 by the United Nations and opened for signature in Paris on 6 February 2007. The Convention entered into force on 23 December 2010. A new treaty-monitoring body within the United Nations system, named Committee on Enforced Disappearances , is entrusted with the implementation of the Convention. The establishment of this new human rights mechanism at a time when the whole system of human rights treaty bodies is being reviewed was extensively debated during the negotiations for the Convention. Nevertheless, the position of those that favoured the creation of a new committee eventually prevailed. The article aims at examining the various functions entrusted to the Committee, some of which are of an especially original nature compared to other United Nations treaty-monitoring bodies. Reference is made to good practices developed by other human rights mechanisms (both treaty bodies and special procedures within the United Nations, as well as regional human rights courts) that the Committee on Enforced Disappearance could consider, as well as potential mistakes to be avoided. The article will analyze both substantive matters relating to the interpretation of the provisions of the Convention, and more practical details concerning the functioning of the Committee, its methods of work and rules of procedure.

Osservatorio. Diritti civili e politici / Diritti economici, sociali e culturali / immigrazione e asilo

Fri, 15 Mar 2012 8:00:00 GMT