Pub Date : 2021-06-23DOI: 10.1163/22131035-01001004
Rachael Ita, D. Hicks
The living instrument doctrine of the European Court of Human Rights (ECtHR) is criticised as restricting the margin of appreciation of States and expanding the scope of the European Convention on Human Rights (echr). Systematic examination of this claim is usually overlooked in the context of the relationship between the admissibility and merits phase of ECtHR cases. This article considers this claim in the context of jurisdictional arguments on incompatibility ratione materiae (subject matter outside the scope of the Convention) and the link to the merits of the case. Case law of the ECtHR from January 1979 to December 2016 is assessed to elaborate four models of interaction between the margin of appreciation and living instrument doctrines. The article argues the need to go beyond consideration of expansion and restriction of the scope of the echr, and to assess the Court’s appetite for allocating new duties to States based upon the case arguments and positioning of living instrument and margin of appreciation doctrines.
{"title":"Beyond Expansion or Restriction? Models of Interaction between the Living Instrument and Margin of Appreciation Doctrines and the Scope of the echr","authors":"Rachael Ita, D. Hicks","doi":"10.1163/22131035-01001004","DOIUrl":"https://doi.org/10.1163/22131035-01001004","url":null,"abstract":"\u0000The living instrument doctrine of the European Court of Human Rights (ECtHR) is criticised as restricting the margin of appreciation of States and expanding the scope of the European Convention on Human Rights (echr). Systematic examination of this claim is usually overlooked in the context of the relationship between the admissibility and merits phase of ECtHR cases. This article considers this claim in the context of jurisdictional arguments on incompatibility ratione materiae (subject matter outside the scope of the Convention) and the link to the merits of the case. Case law of the ECtHR from January 1979 to December 2016 is assessed to elaborate four models of interaction between the margin of appreciation and living instrument doctrines. The article argues the need to go beyond consideration of expansion and restriction of the scope of the echr, and to assess the Court’s appetite for allocating new duties to States based upon the case arguments and positioning of living instrument and margin of appreciation doctrines.","PeriodicalId":13730,"journal":{"name":"International Human Rights Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47636897","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-23DOI: 10.1163/22131035-01001006
T. Krupiy
The article analyses what is distinct about the manner in which the delegation of the decision-making task to an artificial intelligence system produces harm from the standpoint of the prohibition of discrimination. It explores the manner in which the context of digital discrimination challenges the application of the Convention on the Elimination of all Forms of Discrimination Against Women (cedaw). The article suggests how the subject matter of cedaw may be rethought to enable it to respond to digital discrimination. It formulates a legal test which can be added to the existing toolbox without the need to amend the treaty. The article offers approaches to interpreting cedaw teleologically in order to enable it to remain relevant in the face of technological innovation.
{"title":"Meeting the Chimera: How the cedaw Can Address Digital Discrimination","authors":"T. Krupiy","doi":"10.1163/22131035-01001006","DOIUrl":"https://doi.org/10.1163/22131035-01001006","url":null,"abstract":"\u0000The article analyses what is distinct about the manner in which the delegation of the decision-making task to an artificial intelligence system produces harm from the standpoint of the prohibition of discrimination. It explores the manner in which the context of digital discrimination challenges the application of the Convention on the Elimination of all Forms of Discrimination Against Women (cedaw). The article suggests how the subject matter of cedaw may be rethought to enable it to respond to digital discrimination. It formulates a legal test which can be added to the existing toolbox without the need to amend the treaty. The article offers approaches to interpreting cedaw teleologically in order to enable it to remain relevant in the face of technological innovation.","PeriodicalId":13730,"journal":{"name":"International Human Rights Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46137118","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-23DOI: 10.1163/22131035-01001007
J. D. Mujuzi
Article 12(4) of the International Covenant on Civil and Political Rights (iccpr) provides that ‘[n]o one shall be arbitrarily deprived of the right to enter his own country.’ The jurisprudence of the Human Rights Committee shows that Committee members have often disagreed on the question of whether the right under Article 12(4) is reserved for citizens only or it can be claimed by non-citizens who consider the countries in which they were born or they have lived for longer periods as their own. In its earlier case law, the Committee held that Article 12(4) is applicable to nationals only. Since 1999, when General Comment No.27 was adopted, the Committee has moved towards extending the right under Article 12(4) to non-nationals. Its latest case law appears to have supported the Committee’s position that Article 12(4) is applicable to non-nationals. Central to both majority and minority decisions in which the Committee has dealt with Article 12(4), is whether the travaux préparatoires of Article 12(4) support either view. This article relies on the travaux préparatoires of Article 12(4) to argue that it does not support the view that Article 12(4) is applicable to non-nationals.
{"title":"The Right to Enter One’s Own Country: The Conflict between the Jurisprudence of the Human Rights Committee and the Travaux Préparatoires of Article 12(4) of the iccpr","authors":"J. D. Mujuzi","doi":"10.1163/22131035-01001007","DOIUrl":"https://doi.org/10.1163/22131035-01001007","url":null,"abstract":"\u0000Article 12(4) of the International Covenant on Civil and Political Rights (iccpr) provides that ‘[n]o one shall be arbitrarily deprived of the right to enter his own country.’ The jurisprudence of the Human Rights Committee shows that Committee members have often disagreed on the question of whether the right under Article 12(4) is reserved for citizens only or it can be claimed by non-citizens who consider the countries in which they were born or they have lived for longer periods as their own. In its earlier case law, the Committee held that Article 12(4) is applicable to nationals only. Since 1999, when General Comment No.27 was adopted, the Committee has moved towards extending the right under Article 12(4) to non-nationals. Its latest case law appears to have supported the Committee’s position that Article 12(4) is applicable to non-nationals. Central to both majority and minority decisions in which the Committee has dealt with Article 12(4), is whether the travaux préparatoires of Article 12(4) support either view. This article relies on the travaux préparatoires of Article 12(4) to argue that it does not support the view that Article 12(4) is applicable to non-nationals.","PeriodicalId":13730,"journal":{"name":"International Human Rights Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44734428","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-23DOI: 10.1163/22131035-01001008
{"title":"Books Received","authors":"","doi":"10.1163/22131035-01001008","DOIUrl":"https://doi.org/10.1163/22131035-01001008","url":null,"abstract":"","PeriodicalId":13730,"journal":{"name":"International Human Rights Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41583812","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-23DOI: 10.1163/22131035-01001005
A. Młynarska-Sobaczewska
This article comments on the Polish Constitutional Tribunal judgment delivered on 22 October 2020 on the unconstitutionality of the provision of the Act of 1993 allowing for the termination of pregnancy for embryo-pathological reasons. The author provides a commentary on the judgment from the point of view of its formal features and content and demonstrates that it violates in both respects the right to privacy and freedom from inhuman or degrading treatment, as it was passed without taking into account nor properly balancing the rights of a pregnant mother in a situation of particular vulnerability.
{"title":"Unconstitutionality of Access to Abortion for Embryo-Pathological Reasons","authors":"A. Młynarska-Sobaczewska","doi":"10.1163/22131035-01001005","DOIUrl":"https://doi.org/10.1163/22131035-01001005","url":null,"abstract":"\u0000This article comments on the Polish Constitutional Tribunal judgment delivered on 22 October 2020 on the unconstitutionality of the provision of the Act of 1993 allowing for the termination of pregnancy for embryo-pathological reasons. The author provides a commentary on the judgment from the point of view of its formal features and content and demonstrates that it violates in both respects the right to privacy and freedom from inhuman or degrading treatment, as it was passed without taking into account nor properly balancing the rights of a pregnant mother in a situation of particular vulnerability.","PeriodicalId":13730,"journal":{"name":"International Human Rights Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41661607","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-01DOI: 10.1007/978-3-030-77032-7
Riccardo Pisillo Mazzeschi
{"title":"International Human Rights Law: Theory and Practice","authors":"Riccardo Pisillo Mazzeschi","doi":"10.1007/978-3-030-77032-7","DOIUrl":"https://doi.org/10.1007/978-3-030-77032-7","url":null,"abstract":"","PeriodicalId":13730,"journal":{"name":"International Human Rights Law Review","volume":"25 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78361894","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-01DOI: 10.1163/22131035-01001003
Anonymous
Access to a vaccine against coronavirus disease (covid-19) that is safe, effective and based on the best scientific developments is an essential component of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health and the right of everyone to enjoy the benefits of scientific progress and its applications. States therefore have an obligation to take all the necessary measures, as a matter of priority and to the maximum of their available resources, to guarantee all persons access to vaccines against covid-19, without any discrimination. This statement builds on the previous statements of the Committee on Economic, Social and Cultural Rights of 6 April 2020 on the coronavirus disease (covid-19) pandemic and economic, social and cultural rights (E/C.12/2020/1) and of 27 November 2020 on universal and equitable access to vaccines for the coronavirus disease (covid-19) (E/C.12/2020/2). It is intended to remind States of their obligations under the International Covenant on Economic, Social and Cultural Rights in relation to universal access and affordability of vaccines against covid-19, particularly with regard to international cooperation and intellectual property.
{"title":"Statement on Universal Affordable Vaccination against Coronavirus Disease covid-19, International Cooperation and Intellectual Property","authors":"Anonymous","doi":"10.1163/22131035-01001003","DOIUrl":"https://doi.org/10.1163/22131035-01001003","url":null,"abstract":"Access to a vaccine against coronavirus disease (covid-19) that is safe, effective and based on the best scientific developments is an essential component of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health and the right of everyone to enjoy the benefits of scientific progress and its applications. States therefore have an obligation to take all the necessary measures, as a matter of priority and to the maximum of their available resources, to guarantee all persons access to vaccines against covid-19, without any discrimination. This statement builds on the previous statements of the Committee on Economic, Social and Cultural Rights of 6 April 2020 on the coronavirus disease (covid-19) pandemic and economic, social and cultural rights (E/C.12/2020/1) and of 27 November 2020 on universal and equitable access to vaccines for the coronavirus disease (covid-19) (E/C.12/2020/2). It is intended to remind States of their obligations under the International Covenant on Economic, Social and Cultural Rights in relation to universal access and affordability of vaccines against covid-19, particularly with regard to international cooperation and intellectual property.","PeriodicalId":13730,"journal":{"name":"International Human Rights Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"64571673","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-10-24DOI: 10.1163/22131035-00902005
{"title":"Books Received","authors":"","doi":"10.1163/22131035-00902005","DOIUrl":"https://doi.org/10.1163/22131035-00902005","url":null,"abstract":"","PeriodicalId":13730,"journal":{"name":"International Human Rights Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-10-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42237720","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-10-24DOI: 10.1163/22131035-00902009
{"title":"Contents","authors":"","doi":"10.1163/22131035-00902009","DOIUrl":"https://doi.org/10.1163/22131035-00902009","url":null,"abstract":"","PeriodicalId":13730,"journal":{"name":"International Human Rights Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-10-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47749299","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-10-24DOI: 10.1163/22131035-00902008
C. Lougarre
The decade of austerity policies resulting from the 2008 economic crisis significantly impeded the realisation of economic, social and cultural (esc) rights worldwide, especially for non-nationals who became targets of populist nationalist ideologies. The Coronavirus disease (covid-19) pandemic and its subsequent recession have heightened existing levels of inequalities, putting non-nationals’ access to health, housing, food, water and work under unprecedented strains. It is thus, crucial to analyse the extent to which un human rights treaties recognise non-nationals’ esc rights, in order to assess their ability to offer protection in this context. This article sheds light on the ambiguities of key un human rights treaties in this regard. It then analyses the attempts of relevant un treaty bodies to circumvent such issues; and finally suggests legal paths allowing un treaty bodies to further assert their protection of non-nationals’ esc rights during the covid-19 pandemic.
{"title":"The Protection of Non-nationals’ Economic, Social and Cultural Rights in un Human Rights Treaties","authors":"C. Lougarre","doi":"10.1163/22131035-00902008","DOIUrl":"https://doi.org/10.1163/22131035-00902008","url":null,"abstract":"\u0000The decade of austerity policies resulting from the 2008 economic crisis significantly impeded the realisation of economic, social and cultural (esc) rights worldwide, especially for non-nationals who became targets of populist nationalist ideologies. The Coronavirus disease (covid-19) pandemic and its subsequent recession have heightened existing levels of inequalities, putting non-nationals’ access to health, housing, food, water and work under unprecedented strains. It is thus, crucial to analyse the extent to which un human rights treaties recognise non-nationals’ esc rights, in order to assess their ability to offer protection in this context. This article sheds light on the ambiguities of key un human rights treaties in this regard. It then analyses the attempts of relevant un treaty bodies to circumvent such issues; and finally suggests legal paths allowing un treaty bodies to further assert their protection of non-nationals’ esc rights during the covid-19 pandemic.","PeriodicalId":13730,"journal":{"name":"International Human Rights Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-10-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48143615","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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