Law JournalFeeds » Human Rights Law Review

Asylum Seekers in Europe: M.S.S. v Belgium and Greece

admin — Mon, 28 Nov 2011 12:45:48 +0000

Of Minarets and Foreign Criminals: Swiss Direct Democracy and Human Rights

admin — Mon, 28 Nov 2011 12:45:48 +0000

Books Received

admin — Mon, 28 Nov 2011 12:45:48 +0000

The International Court of Justice and the Georgia/Russia Dispute

admin — Mon, 28 Nov 2011 12:45:48 +0000

Bibi van Ginkel, The Practice of the United Nations in Combating Terrorism from 1946 to 2008: Questions of Legality and Legitimacy

admin — Mon, 28 Nov 2011 12:45:48 +0000

Volume Contents

admin — Mon, 28 Nov 2011 12:45:48 +0000

Magdalena Forowicz, The Reception of International Law in the European Court of Human Rights

admin — Mon, 28 Nov 2011 12:45:48 +0000

Mark Gibney and Sigrun Skogly (eds), Universal Human Rights and Extraterritorial Obligations

admin — Mon, 28 Nov 2011 12:45:48 +0000

The Fundamental Rights Agency of the European Union: A New Panopticism

admin — Mon, 28 Nov 2011 12:45:47 +0000

The Fundamental Rights Agency of the European Union (FRA) is the European Union’s newest, and only, human rights institution. The FRA represents a new way of speaking about rights in the European Union, using ‘governance’ language. It was not conceived as a traditional human rights monitoring body and the monitoring mission was actively abandoned in favour of an advisory one. This article examines how the FRA’s governance-related role actually reveals a type of monitoring best understood as ‘surveillance’ in a critical, Foucauldian sense. In exercising surveillance tactics, the FRA represents a model of panopticism which allows it to carry out a new form of government. This is an interesting observation not only because of the implications it has for a European Union that is striving to move away from government towards governance, but also because it challenges the assumption of the FRA as a ‘beacon on fundamental rights’ and a model of apolitical progress.

The European Union and Human Rights after the Treaty of Lisbon

admin — Mon, 28 Nov 2011 12:45:47 +0000

This article considers the state of human rights protection in the European Union (EU) after the Treaty of Lisbon. The Lisbon Treaty introduced significant changes to human rights protection in the EU, the most significant of which lie in the amendments to Article 6 of the Treaty on European Union. These provide that the EU Charter of Fundamental Rights is now legally binding, having the same status as primary EU law, and that the EU ‘shall accede’ to the European Convention on Human Rights (ECHR). In the two years since the Lisbon Treaty came into force, the Charter has been referred to on many occasions by the European Court of Justice, and now operates as the primary source of human rights in the EU. This article examines the import of this case law, some of it ground-breaking and controversial, as well how the higher profile for human rights under the Charter is likely to change the nature of the EU’s relationship with the ECHR. The article also examines the complex procedure for the EU’s accession to the ECHR, which is now underway, highlighting particularly significant aspects of this. The article concludes with some general reflections about the status of human rights protection in the EU, suggesting that this has become one of the most significant areas of EU law which has had, and continues to have, a crucial impact on the EU’s relationships with its Member States, the EU and international law.

Toward an Anti-Stereotyping Approach for the European Court of Human Rights

admin — Mon, 28 Nov 2011 12:45:47 +0000

The central tenet of this article is that stereotypes are both cause and manifestation of the structural disadvantage and discrimination of certain groups of people. Focusing on the gender case law of the European Court of Human Rights, this article explores what conception of equality the Court should embrace to adequately address the harmfulness of stereotypes. Since stereotypes are often the mechanisms that underlie discrimination, this article advances an anti-stereotyping approach that the Court could employ in its rulings. The proposed analysis consists of two phases: ‘naming’ and ‘contesting’ stereotypes. The whole argument is illustrated by Konstantin Markin v Russia and Rantsev v Cyprus and Russia, two recent cases in the area of gender equality.

The Normative Status of Self-Determination in International Law: A Formula for Uncertainty in the Scope and Content of the Right?

admin — Mon, 28 Nov 2011 12:45:47 +0000

In this article I seek to identify and explore some of the legal consequences that flow from the various normative levels that have been ascribed to the right of self-determination in international legal doctrine. Four normative levels are considered: human right, association with sovereignty, erga omnes and jus cogens. A particular focus of the article is on how the doctrinal debate surrounding each normative level might impact on the willingness of states to help improve the determinacy of the scope and content of the right. I argue that there is a haziness surrounding the normative status of the right to self-determination and that this can help to explain the reluctance of states to publicise their views on the scope and content of the norm in international law. The article concludes with suggestions as to how a clearer understanding of the normative status of the right to self-determination might be achieved.

Catherine Dauvergne, Making People Illegal: What Globalization Means for Migration and Law

admin — Fri, 19 Aug 2011 09:07:37 +0000

The Right to Life, Democracy and State Responsibility in ‘Urban Guerilla’ Conflict: The European Court of Human Rights Grand Chamber Judgment in Giuliani and Gaggio v Italy

admin — Fri, 19 Aug 2011 09:07:37 +0000

Books Received

admin — Fri, 19 Aug 2011 09:07:37 +0000

Francois du Bois and Antje du Bois-Pedain (eds), Justice and Reconciliation in Post-Apartheid South Africa

admin — Fri, 19 Aug 2011 09:07:37 +0000

Religion in the European Public Square and in European Public Life–Crucifixes in the Classroom?

admin — Fri, 19 Aug 2011 09:07:37 +0000

This article has two central objectives. First, to critique the proper place of religion in the public square of modern European secular societies. Secondly, to critique the proper role of the European Court of Human Rights in relation to freedom of religion. This article addresses ongoing conflicts as to the proper place of religion in European societies. Hitherto those conflicts have largely been the concern of sociologists and theologians. However, there is an increasing jurisprudence at both domestic and European levels that implicates both freedom of religion and the use of religious arguments in the public square. Within the context of that developing jurisprudence I contextualise and explore the judgments of the Chamber and Grand Chamber of the European Court of Human Rights in Lautsi v Italy—a challenge to the obligatory presence of crucifixes in state schools in Italy. It is submitted that the Grand Chamber’s judgment was of seminal importance as it dealt with major systemic issues. These included the application of the margin of appreciation, the scope for perpetuating national traditions, religious symbolism in the public square, the relationship between secularism and neutrality, and whether perpetuating majority religious traditions necessarily discriminated against newer minority religions.

Bringing Muslim Minorities within the International Convention on the Elimination of All Forms of Racial Discrimination–Square Peg in a Round Hole?

admin — Fri, 19 Aug 2011 09:07:37 +0000

In 2009, the Committee on the Elimination of All Forms of Racial Discrimination (CERD) explicitly recognised the intersection between racial and religious discrimination.¹ In this article, I consider the possibility and implications of the application of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) to Muslim communities of immigrant origin in Western Europe, in the wake of increasing intolerance and discrimination. I argue that there is a clear intersection between the ethnic and religious identities of Muslim immigrant communities in Western Europe. Further, when discrimination targets the religious identity of these groups, this constitutes indirect discrimination against ethnic minorities. Therefore, it is possible for CERD, in contrast to its current practice, to employ the concept of indirect discrimination in order to find a violation of ICERD in instances of religious discrimination against Muslims, as this disproportionately affects immigrant communities.

The Zone of Interaction Between Partnerships, LLPs and Human Rights in United Kingdom Law

admin — Fri, 19 Aug 2011 09:07:37 +0000

In this article I examine the particular significance of human rights for partnerships and limited liability partnerships (LLPs), and for their partners and members. The key procedural issues arising in claims by and against them are outlined, and potential difficulties which may be encountered are commented upon. The application of certain key substantive rights of relevance to them is also considered; in particular the rights to a fair trial, to respect for private and family life, to freedom of expression, to protection against discrimination and to peaceful enjoyment of property. The ways in which these rights can impact on the relationships between members inter se and between firms or individual members and outsiders are examined, and both the risks to firms of rights being enforced against them and the potential benefits to them and their partners and members of enforcing their rights are assessed.

Clara Burbano Herrera, Provisional Measures in the Case Law of the Inter-American Court of Human Rights

admin — Fri, 19 Aug 2011 09:07:37 +0000

Human Rights and the International Court of Justice The Ahmadou Sadio Diallo Case

admin — Fri, 19 Aug 2011 09:07:37 +0000

Homosexuality, Freedom of Assembly and the Margin of Appreciation Doctrine of the European Court of Human Rights: Alekseyev v Russia

admin — Fri, 19 Aug 2011 09:07:37 +0000

A, B, C v Ireland: Abortion Law under the European Convention on Human Rights

admin — Fri, 19 Aug 2011 09:07:37 +0000

Dirk van Zyl Smit and Sonja Snacken, Principles of European Prison Law and Policy: Penology and Human Rights

admin — Thu, 02 Jun 2011 09:42:59 +0000

Fleur van Leeuwen, Women’s Rights are Human Rights: The Practice of the United Nations Human Rights Committee and the Committee on Economic, Social and Cultural Rights

admin — Thu, 02 Jun 2011 09:42:59 +0000

Books Received

admin — Thu, 02 Jun 2011 09:42:59 +0000

Jernej Letnar Cernic, Human Rights Law and Business: Corporate Responsibility for Fundamental Human Rights

admin — Thu, 02 Jun 2011 09:42:58 +0000

‘Aggravated Violations’, Roma Housing Rights and Forced Expulsions in Italy: Recent Developments under the European Social Charter Collective Complaints System

admin — Thu, 02 Jun 2011 09:42:58 +0000

Does Article 6 of the European Convention on Human Rights Require Reasoned Verdicts in Criminal Trials?

admin — Thu, 02 Jun 2011 09:42:58 +0000

This article revisits the controversial question whether Article 6 of the European Convention on Human Rights requires juries to give reasoned verdicts in criminal trials, in the light of the recent decision of the Grand Chamber of the European Court of Human Rights in Taxquet v Belgium (2010). On the face of it, Taxquet reiterates the orthodox position elucidated in previous Strasbourg jurisprudence: the traditional common law jury delivering unreasoned general verdicts is in principle compatible with the right to a fair trial guaranteed by Article 6. On closer examination, however, the Grand Chamber’s Judgment contains remarks and suggestions that could be construed as more threatening to the long-term future of the common law jury as it currently exists in the United Kingdom and in other Council of Europe member states. This realisation prompts broader critical reflections on: the authority and competence of the European Court of Human Rights; alternative approaches to interpreting Strasbourg jurisprudence and mediating its impact on domestic law; and the rationality and legitimacy of unreasoned jury verdicts in criminal adjudication.

Reflections on the Human Rights Challenges of Consolidating Democracies: Recent Developments in the Inter-American System of Human Rights

admin — Thu, 02 Jun 2011 09:42:58 +0000

Gender Stereotyping in Rape Cases: The CEDAW Committee’s Decision in Vertido v The Philippines

admin — Thu, 02 Jun 2011 09:42:58 +0000

Keith Ewing, Bonfire of the Liberties: New Labour, Human Rights, and the Rule of Law

admin — Thu, 02 Jun 2011 09:42:58 +0000

The Case of ‘Queer Muslims’: Sexual Orientation and Gender Identity in International Human Rights Law and Muslim Legal and Social Ethos

admin — Thu, 02 Jun 2011 09:42:58 +0000

This article analyses the past and present positions of the concepts of sexual orientation and gender identity in international human rights law and Islamic legal tradition in order to establish a rationale for the protection and empowerment of the millions of members of various Muslim communities who suffer from discrimination and prejudice solely because of their perceived or actual gender and/or sexual diversity. It argues that the systemic oppression of ‘queer Muslims’ runs against the fundamental principles of both analysed global(ised) legal systems, and that the notions of gender identity and sexual orientation, as pronounced in the Yogyakarta Principles, should be upheld in framing the related legal, religious, social and human rights claims.

Reasonableness in Retreat? The Judgment of the South African Constitutional Court in Mazibuko v City of Johnnesburg

admin — Thu, 02 Jun 2011 09:42:58 +0000

The ‘Reasonableness’ Test: Assessing Violations of State Obligations under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights

admin — Thu, 02 Jun 2011 09:42:58 +0000

The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights is the first complaint mechanism of a core human rights treaty to specify a standard of review to be used in the assessment of alleged violations—providing for a ‘reasonableness’ test in Article 8(4). Questions remain as to how the Committee on Economic, Social and Cultural Rights will approach the provision, which was one of the most controversial elements in the drafting of the Optional Protocol and is bound to be a contentious focal point in the dialogue between the Committee and States. This article examines the drafting history of Article 8(4), its key differences from the other ‘reasonableness’ tests alluded to during negotiations, how the Committee should apply the provision, and the normative obligations under the Covenant that must guide its application.

Books Received

admin — Fri, 18 Feb 2011 09:59:20 +0000

Jean-Pierre Chauffour, The Power of Freedom, Uniting Human Rights and Development

admin — Fri, 18 Feb 2011 09:59:20 +0000

Giuseppe Nesi, Luca Nogler and Marco Pertile (eds), Child Labour in a Globalized World: An Analysis of ILO Action

admin — Fri, 18 Feb 2011 09:59:20 +0000

Abdulaziz Sachedina, Islam and the Challenge of Human Rights

admin — Fri, 18 Feb 2011 09:59:20 +0000

United Nations Human Rights Leaders, Dr Kurt Herndl: A Pragmatic Idealist

admin — Fri, 18 Feb 2011 09:59:20 +0000

Laura Westra, Environmental Justice and the Rights of Ecological Refugees

admin — Fri, 18 Feb 2011 09:59:20 +0000

Should Police Threats to Torture Suspects Always be Severely Punished? Reflections on the Gafgen Case

admin — Fri, 18 Feb 2011 09:59:19 +0000

In Gäfgen v Germany the majority of a Chamber of the European Court of Human Rights affirmed that police threats to torture suspects always violate Article 3 of the European Convention on Human Rights, but that in certain circumstances such as those presented by this case, charging and convicting but leniently punishing the officers concerned provides adequate redress. A majority of the Grand Chamber held that, on the contrary, such violations should always be severely punished even when motivated, as here, by the urgent imperative of rescuing a kidnapped child. This article argues that, on Article 3, the majority of the Chamber reached the right result but not entirely for the right reasons, while the judgment of the majority of the Grand Chamber is methodologically, substantively and morally flawed. Having explored the central underlying normative dilemma neglected by all judges on both panels—how should conflicts between two competing instances of the same ‘absolute’ human right be resolved?—it concludes that, in such circumstances, courts have no legitimate alternative but to make a moral rather than a legal choice taking fully into consideration what is at stake for both parties in the widest possible senses. The verdict of the majorities on both panels that there was no violation of the applicant’s right to a fair trial is also defended, and the issues raised by the Gäfgen case are contrasted with the much-debated ‘ticking bomb’ scenario with which it is easily but mistakenly confused.

The Human Rights of Older Persons: A Growing Challenge

admin — Fri, 18 Feb 2011 09:59:19 +0000

The human rights of older persons is an issue that is beginning to garner international attention, partly as a result of the demographic importance of that population. To assess whether calls for a specific human rights approach to older persons are warranted, the article highlights some of the specificities of older persons as a human group. It contextualises the emergence of a relatively strong discourse on the rights of older persons within the broader phenomenon of the ‘fragmentation’ of human rights. Older persons are a category of humanity whose needs and experience is irreducible enough to warrant fresh thinking and an updating of existing instruments and approaches. This is particularly apparent when one looks at the potential for violation of specific rights and the way in which older persons’ lives can be negatively impacted upon by both limitations to their freedoms and failures to cater for their needs.

The Extraterritorial Scope of the International Covenant on Economic, Social and Cultural Rights in the Work of the United Nations Committee on Economic, Social and Cultural Rights

admin — Fri, 18 Feb 2011 09:59:19 +0000

Over the years, the United Nations Committee on Economic, Social and Cultural Rights has indicated that the International Covenant on Economic, Social and Cultural Rights (ICESCR) may have an effect beyond the borders of States Parties, meaning that states may be bound by their obligations under the treaty when acting extraterritorially. The present contribution aims at researching the use of the notion of the extraterritorial scope of the ICESCR in the documents adopted by the Committee, such as General Comments, Statements and Concluding Observations. The article concludes that, although the Committee did introduce some basic notions, it has never clarified at length, in-depth and systematically the notion of the extraterritorial scope of State Parties’ obligations from a conceptual perspective. There is therefore a need for the Committee to further develop the notion of the international scope and application of the ICESCR, for example, by holding a day of general discussion and adopting a key document on this topic which should contain concrete guidance to States Parties. The present article provides examples of questions and issues that are relevant in order to gain a more coherent understanding of the extraterritorial scope of the ICESCR from a legal point of view.

Samantar v Yousuf: Narrowing the Prospects for Human Rights Litigation against Foreign Officials?

admin — Fri, 18 Feb 2011 09:59:19 +0000

A Marriage by Any Other Name? Schalk and Kopf v Austria

admin — Fri, 18 Feb 2011 09:59:19 +0000

The Privatisation of Military and Security Functions and Human Rights: Comments on the UN Working Group’s Draft Convention

admin — Fri, 18 Feb 2011 09:59:19 +0000

The International Criminal Court and the Treatment of Defence Rights: A Mirror of the European Court of Human Rights’ Jurisprudence?

admin — Fri, 18 Feb 2011 09:59:19 +0000

The International Criminal Court (ICC) has been a mirror of the European Court of Human Rights when defining the scope of defence rights and limiting their exercise on public interest grounds. The ICC has been consistently deferential to the Strasbourg Court in the interpretation of the accused’s rights to disclosure of evidence and to cross-examine prosecution witnesses, leaving the door open for a virtual theory of implied external limitations upon defence rights. The ICC has nevertheless failed to provide a rationale, besides its non-systematic reference to the ICC Statute’s human rights enabling clause, when cross-fertilising with the Strasbourg Court. The latter has not only exerted influence over other international human rights monitoring bodies but also accounted for judicial developments within domestic and international fora when tailoring its own human rights standards. The ICC has overall proven to be a promising platform for extrapolating regional interpretations of fair trial rights to the international legal order.

Benjamin J. Goold and Daniel Neyland (eds), New Directions in Surveillance and Privacy

admin — Fri, 26 Nov 2010 11:13:58 +0000

Richard Susskind, The End of Lawyers? Rethinking the Nature of Legal Services

admin — Fri, 26 Nov 2010 11:13:58 +0000

Books Received

admin — Fri, 26 Nov 2010 11:13:58 +0000

Liberia’s Long Tail: How Web 2.0 is Changing and Challenging Truth Commissions

admin — Fri, 26 Nov 2010 11:13:58 +0000

Volume Contents

admin — Fri, 26 Nov 2010 11:13:58 +0000

Soldier Photography of Detainee Abuse in Iraq: Digital Technology, Human Rights and the Death of Baha Mousa

admin — Fri, 26 Nov 2010 11:13:58 +0000

Digital media technologies provide new opportunities for the recording and publicising of human rights violations. In recent years, soldier photography during military conflicts has become one of the most controversial sources of images of abuse, especially in relation to the visual representation of detainees. The backdrop to this article is the death of Baha Mousa, an Iraqi civilian who died while in detention on a British Army military base in Basra in southern Iraq in 2003. A soldier’s video footage of Mr Mousa’s treatment in the detention facility has helped to generate a range of cultural, political and legal effects, not least an ongoing official Inquiry into the causes of his death. But while new media technologies, such as mobile camera-phones, can provide an expanded visual record of human suffering and death in war zones, this article argues that this brings dangers as well as possibilities. More generally, it raises questions about how human rights practitioners should respond to the increasing visualisation of witnessing.

Works in Progress: New Technologies and the European Court of Human Rights

admin — Fri, 26 Nov 2010 11:13:58 +0000

A field—new technologies and human rights or, more broadly, law and technology—is in the process of being framed. Should the European Court of Human Rights be seen as part of that process? To find out, we searched the Court’s case law using HUDOC, a database on the Council of Europe website which contains both judgments and admissibility decisions. We entered 155 keywords, all in English, and in this article we report and analyse what we found. The overall conclusion is twofold: first, it is too early to attempt a complete characterisation of the Court’s position on new technologies; and second, the Court is however ‘one to watch’.

A Human Rights Perspective on Citizen Participation in the EU’s Governance of New Technologies

admin — Fri, 26 Nov 2010 11:13:58 +0000

This article considers the EU’s approach to citizen participation in the governance of new technologies from a human rights perspective. Noting that there is a dearth of insight on the interplay between citizen participation and human rights, the article sketches the essence of its own human rights perspective as being about empowerment. This perspective is brought to bear on EU discourse on citizen participation in the governance of new technologies. Analysis of the discourse—comprising law, citizen participation in EU governance and citizen/science relations, the ‘public understanding of science and technology’, risk and bioethics—reveals a disempowering ‘deficit model’ of citizens in need of education through their participation in governance. The analysis thus suggests that citizen participation in EU governance of new technologies is not truly informed by human rights, but is instead used as a legitimating technique.

Could Human Rights Supersede Bioethics?

admin — Fri, 26 Nov 2010 11:13:58 +0000

Bioethics and human rights are now well-established sets of norms, practices, institutions and methods for regulating the life sciences and medicine in the public sphere. Recent scholarship, and to some extent states’ practice, in the governance of the life sciences and medicine have suggested that the field of bioethics may become subsumed into human rights law and practice. In this article, I discuss the current relationship between bioethics and human rights as public discourses and practices of governance of the life sciences and medicine, focussing particularly on human biomedicine. I analyse the thesis, notably associated with Australian health lawyer Thomas Faunce, that international human rights law will subsume bioethics. I argue that there are various theoretical and practical difficulties in the way of this thesis, but that these may be overcome. My claim is that if they are overcome, it will not be due to intellectual necessity, but to do with historical and political contingencies. Both bioethics and human rights must be understood as messy practices emerging from the interplay of doctrine, intellectual debate, institutional form, political interests and the actions of interested parties. The question will be not, could human rights supersede bioethics, but rather, which interests would be served by such a convergence?

New Technologies in Criminal Justice for Core International Crimes: The ICC Legal Tools Project

admin — Fri, 26 Nov 2010 11:13:58 +0000

Agricultural Biotechnologies, Transgenic Crops and the Poor: Opportunities and Challenges

admin — Fri, 26 Nov 2010 11:13:58 +0000

Viktor Mayer-Schonberger, Delete: the Virtue of Forgetting in the Digital Age

admin — Fri, 26 Nov 2010 11:13:58 +0000

Remarks on the Venice Statement on the Right to Enjoy the Benefits of Scientific Progress and its Applications (Article 15(1)(b) ICESCR)

admin — Fri, 26 Nov 2010 11:13:58 +0000

Henk A.M.J. ten Have and Michele S. Jean (eds), The UNESCO Universal Declaration on Bioethics and Human Rights: Background, Principles and Application

admin — Fri, 26 Nov 2010 11:13:58 +0000

Editorial

admin — Fri, 26 Nov 2010 11:13:57 +0000

Laura Reichenbach and Mindy Jane Roseman (eds), Reproductive Health and Human Rights