In this essay, we analyze how different actors contribute to compliance with the advisory jurisdiction of the Inter-American human rights system. The essay briefly reviews the discussion around the binding force of, and compliance with, advisory opinions. It then analyzes how the holdings in advisory opinions issued by the Inter-American Court of Human Rights (IACtHR or Court) over the last forty years have had a notable impact on states and how different interstate actors, including the executive, the legislature, the national judiciary, and local regulatory bodies, ensure compliance.
{"title":"Compliance with Advisory Opinions in the Inter-American Human Rights System","authors":"Walter Arévalo Ramírez, Andrés Rousset Siri","doi":"10.1017/aju.2023.51","DOIUrl":"https://doi.org/10.1017/aju.2023.51","url":null,"abstract":"In this essay, we analyze how different actors contribute to compliance with the advisory jurisdiction of the Inter-American human rights system. The essay briefly reviews the discussion around the binding force of, and compliance with, advisory opinions. It then analyzes how the holdings in advisory opinions issued by the Inter-American Court of Human Rights (IACtHR or Court) over the last forty years have had a notable impact on states and how different interstate actors, including the executive, the legislature, the national judiciary, and local regulatory bodies, ensure compliance.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-12-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138604123","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}
The limited use of dispute settlement mechanisms under the UN Framework Convention on Climate Change and the Paris Agreement explains the recent upsurge in requests for advisory opinions on issues specific to climate change to international courts, namely the International Court of Justice (ICJ), the International Tribunal of the Law of the Sea (ITLOS), and the Inter-American Court of Human Rights. However, it is still unclear how these courts will answer the questions posed, and in particular whether they will coordinate or compete with each other. As the requesting states and bodies are well aware of this uncertainty, requesting an advisory opinion from three courts simultaneously was an ingenious (not ingenuous) strategy to clarify states’ obligations to mitigate or adapt to climate change through the international judiciary. This essay assesses how the parallel jurisdiction of courts in these cases presents an opportunity to enhance states’ obligations concerning climate change through requesting concurrent views on the same rules and obligations. It considers the potential for contradictory views between courts on the same obligations. Finally, the essay analyzes the extent to which these courts may compete or cooperate in their approach to the resolution of these issues.
{"title":"Competing Perspectives and Dialogue in Climate Change Advisory Opinions","authors":"Maria Antonia Tigre, Armando Rocha","doi":"10.1017/aju.2023.50","DOIUrl":"https://doi.org/10.1017/aju.2023.50","url":null,"abstract":"The limited use of dispute settlement mechanisms under the UN Framework Convention on Climate Change and the Paris Agreement explains the recent upsurge in requests for advisory opinions on issues specific to climate change to international courts, namely the International Court of Justice (ICJ), the International Tribunal of the Law of the Sea (ITLOS), and the Inter-American Court of Human Rights. However, it is still unclear how these courts will answer the questions posed, and in particular whether they will coordinate or compete with each other. As the requesting states and bodies are well aware of this uncertainty, requesting an advisory opinion from three courts simultaneously was an ingenious (not ingenuous) strategy to clarify states’ obligations to mitigate or adapt to climate change through the international judiciary. This essay assesses how the parallel jurisdiction of courts in these cases presents an opportunity to enhance states’ obligations concerning climate change through requesting concurrent views on the same rules and obligations. It considers the potential for contradictory views between courts on the same obligations. Finally, the essay analyzes the extent to which these courts may compete or cooperate in their approach to the resolution of these issues.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-12-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138604387","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}
Although there is still no United Nations treaty on the right to a healthy environment, the recognition of the right by the UN General Assembly and the UN Human Rights Council have helped solidify its status as customary international law. The overwhelming recognition of the right at the national and regional levels, and now at the United Nations, evidences greater uniformity and certainty in understanding human rights obligations relating to the environment. But what value do the resolutions add to the regional recognition of the right in Latin America and the Caribbean (LAC)? Through judicial and legislative developments, LAC has provided fertile ground for the flourishing of the right to a healthy environment. The region has seen some of the most innovative responses to the fragmented fields of human rights and the environment, providing a model for progressive legal development. Within this context, this essay focuses on how UN recognition of the new right may impact the burgeoning law on human rights and the environment in LAC. I argue that the resolutions should support the already rich environmental and climate jurisprudence in the region to realize the full potential of the right to a healthy environment. The right to a healthy environment can further solidify the role of the Inter-American Court of Human Rights (IACtHR) as a leading human rights court in environmental protection, with wide-ranging implications for rights-based environmental (and climate) litigation.
{"title":"International Recognition of the Right to a Healthy Environment: What Is the Added Value for Latin America and the Caribbean?","authors":"Maria Antonia Tigre","doi":"10.1017/aju.2023.28","DOIUrl":"https://doi.org/10.1017/aju.2023.28","url":null,"abstract":"Although there is still no United Nations treaty on the right to a healthy environment, the recognition of the right by the UN General Assembly and the UN Human Rights Council have helped solidify its status as customary international law. The overwhelming recognition of the right at the national and regional levels, and now at the United Nations, evidences greater uniformity and certainty in understanding human rights obligations relating to the environment. But what value do the resolutions add to the regional recognition of the right in Latin America and the Caribbean (LAC)? Through judicial and legislative developments, LAC has provided fertile ground for the flourishing of the right to a healthy environment. The region has seen some of the most innovative responses to the fragmented fields of human rights and the environment, providing a model for progressive legal development. Within this context, this essay focuses on how UN recognition of the new right may impact the burgeoning law on human rights and the environment in LAC. I argue that the resolutions should support the already rich environmental and climate jurisprudence in the region to realize the full potential of the right to a healthy environment. The right to a healthy environment can further solidify the role of the Inter-American Court of Human Rights (IACtHR) as a leading human rights court in environmental protection, with wide-ranging implications for rights-based environmental (and climate) litigation.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42728962","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}
This essay explores the implications of the right to a healthy environment for the long-standing criticisms of international human rights law as a project and product of the Global North. It examines the Southern origins of the right to a healthy environment and its interpretations in regional human rights tribunals. The essay analyzes the responses offered by this evolving jurisprudence to various objections to human rights-based approaches to environmental protection. These include the human rights-based framework's individualism, anthropocentrism, failure to address transboundary harm, and failure to challenge the economic law instruments that perpetuate environmental degradation.
{"title":"The Right to a Healthy Environment and the Global South","authors":"Carmen Gonzalez","doi":"10.1017/aju.2023.26","DOIUrl":"https://doi.org/10.1017/aju.2023.26","url":null,"abstract":"This essay explores the implications of the right to a healthy environment for the long-standing criticisms of international human rights law as a project and product of the Global North. It examines the Southern origins of the right to a healthy environment and its interpretations in regional human rights tribunals. The essay analyzes the responses offered by this evolving jurisprudence to various objections to human rights-based approaches to environmental protection. These include the human rights-based framework's individualism, anthropocentrism, failure to address transboundary harm, and failure to challenge the economic law instruments that perpetuate environmental degradation.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43636759","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}
The lengthy process culminating in the UN General Assembly's recognition of the right to a healthy environment provides important insights into the nature of today's international human rights regime. In particular, it shows that human rights have moved well beyond the impoverished conceptions of rights that dominated the second part of the last century, that new norms develop in ways that are more complex and flexible than traditional doctrinal accounts would suggest, and that today's process of norm generation involves a wide and diverse array of actors, with states sometimes struggling to keep up.
{"title":"The Right to a Healthy Environment: Beyond Twentieth Century Conceptions of Rights","authors":"Philip Alston","doi":"10.1017/aju.2023.30","DOIUrl":"https://doi.org/10.1017/aju.2023.30","url":null,"abstract":"The lengthy process culminating in the UN General Assembly's recognition of the right to a healthy environment provides important insights into the nature of today's international human rights regime. In particular, it shows that human rights have moved well beyond the impoverished conceptions of rights that dominated the second part of the last century, that new norms develop in ways that are more complex and flexible than traditional doctrinal accounts would suggest, and that today's process of norm generation involves a wide and diverse array of actors, with states sometimes struggling to keep up.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44310354","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}
Since the end of the 2010s, some of the UN human rights treaty bodies have affirmed and enhanced states’ obligations in relation to the environment. This “green turn,” deeply influenced by the jurisprudence of the regional human rights tribunals and the work of UN Special Procedures, raises the question of the potential recognition of an autonomous right to a healthy environment—that is, a free-standing right that is not primarily derived from existing human rights. The claim of this essay is that in the absence of a clear mandate from states to the treaty bodies to monitor the implementation of the right, its symbolic affirmation will have only limited impact. Inspired by the discussions at the Council of Europe on the adoption of a new Protocol to the European Convention of Human Rights, states at the UN level should go further and work toward a binding protocol. However, this raises the difficult issue of connecting the right to civil and political rights, to economic, social, and cultural rights, or to a specific instrument such as the Convention on the Rights of the Child. Ultimately, this essay reflects the shortcomings of the binary approach separating human rights into hermetic categories.
{"title":"From the “Green Turn” to the Recognition of an Autonomous Right to a Healthy Environment: Achievements and Challenges in the Practice of UN Treaty Bodies","authors":"Hélène Tigroudja","doi":"10.1017/aju.2023.31","DOIUrl":"https://doi.org/10.1017/aju.2023.31","url":null,"abstract":"Since the end of the 2010s, some of the UN human rights treaty bodies have affirmed and enhanced states’ obligations in relation to the environment. This “green turn,” deeply influenced by the jurisprudence of the regional human rights tribunals and the work of UN Special Procedures, raises the question of the potential recognition of an autonomous right to a healthy environment—that is, a free-standing right that is not primarily derived from existing human rights. The claim of this essay is that in the absence of a clear mandate from states to the treaty bodies to monitor the implementation of the right, its symbolic affirmation will have only limited impact. Inspired by the discussions at the Council of Europe on the adoption of a new Protocol to the European Convention of Human Rights, states at the UN level should go further and work toward a binding protocol. However, this raises the difficult issue of connecting the right to civil and political rights, to economic, social, and cultural rights, or to a specific instrument such as the Convention on the Rights of the Child. Ultimately, this essay reflects the shortcomings of the binary approach separating human rights into hermetic categories.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139353567","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}
In July 2022, the United Nations General Assembly adopted a resolution recognizing the human right to a clean, healthy, and sustainable environment. Its proponents hope that the resolution will catalyze further action, but many of the states voting for it expressed the view that it has no legal effect in itself. Will UN recognition of this right nevertheless change international law? If so, how? This symposium brings together the perspectives of six distinguished scholars on this question. Philip Alston and Carmen Gonzalez examine how recognition may change our understanding of human rights law; Hélène Tigroudja and Maria Antonia Tigre analyze its impact on the burgeoning environmental jurisprudence of the UN human rights treaty bodies and the Inter-American Court of Human Rights; Rosemary Mwanza explores how the right may affect parallel efforts to codify the crime of ecocide; and Louis Kotzé concludes by arguing that the right still falls short of the transformational shift necessary to recognize and protect the rights of nature and of future generations. Before describing their contributions in more detail, this introduction reviews the background of the resolution and describes its main provisions.
{"title":"Introduction to Symposium on UN Recognition of the Human Right to a Healthy Environment","authors":"John H. Knox","doi":"10.1017/aju.2023.25","DOIUrl":"https://doi.org/10.1017/aju.2023.25","url":null,"abstract":"In July 2022, the United Nations General Assembly adopted a resolution recognizing the human right to a clean, healthy, and sustainable environment. Its proponents hope that the resolution will catalyze further action, but many of the states voting for it expressed the view that it has no legal effect in itself. Will UN recognition of this right nevertheless change international law? If so, how? This symposium brings together the perspectives of six distinguished scholars on this question. Philip Alston and Carmen Gonzalez examine how recognition may change our understanding of human rights law; Hélène Tigroudja and Maria Antonia Tigre analyze its impact on the burgeoning environmental jurisprudence of the UN human rights treaty bodies and the Inter-American Court of Human Rights; Rosemary Mwanza explores how the right may affect parallel efforts to codify the crime of ecocide; and Louis Kotzé concludes by arguing that the right still falls short of the transformational shift necessary to recognize and protect the rights of nature and of future generations. Before describing their contributions in more detail, this introduction reviews the background of the resolution and describes its main provisions.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45836130","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}
This essay explores some of the reasons why the recognition by the UN General Assembly of the human right to a healthy environment could catalyze the codification of ecocide as a crime under international law. It argues that even though the two concepts fall within distinct areas of international law, their potential for a synergistic interaction derives from the right's rhetorical and normative aspects. The right's rhetorical dimension refers to the communicative value derived from phrasing calls for responsive action in the language of rights, while the right's normative dimension alludes to its legal or juridical character.
{"title":"The Right to a Healthy Environment as a Catalyst for the Codification of the Crime of Ecocide","authors":"R. Mwanza","doi":"10.1017/aju.2023.29","DOIUrl":"https://doi.org/10.1017/aju.2023.29","url":null,"abstract":"This essay explores some of the reasons why the recognition by the UN General Assembly of the human right to a healthy environment could catalyze the codification of ecocide as a crime under international law. It argues that even though the two concepts fall within distinct areas of international law, their potential for a synergistic interaction derives from the right's rhetorical and normative aspects. The right's rhetorical dimension refers to the communicative value derived from phrasing calls for responsive action in the language of rights, while the right's normative dimension alludes to its legal or juridical character.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46111612","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}
Scholarship concerned with international law, technology, and computation has been burgeoning since the mid-to-late twentieth century. Over the past decade, it has taken shape as a discernible sub-field of international legal scholarship. An International Law and Technology Interest Group was created within the American Society of International Law in 2013, for instance. By 2021, international law and technology was already considered ripe for “rethinking.” Some of this work has been solutionist, aimed at generating order-restoring answers to the “upset[s]” caused by technological change. Some of it has been constitutionalizing, canvassing prospects for “a transformative constitutionalism for the digital human condition.” Much of the scholarship has sought to give humanist (or post-humanist) pause to the ever-increasing pace of technological change.
{"title":"Introduction to the Symposium on Critical International Law and Technology","authors":"Fleur Johns, G. Noll","doi":"10.1017/aju.2023.24","DOIUrl":"https://doi.org/10.1017/aju.2023.24","url":null,"abstract":"Scholarship concerned with international law, technology, and computation has been burgeoning since the mid-to-late twentieth century. Over the past decade, it has taken shape as a discernible sub-field of international legal scholarship. An International Law and Technology Interest Group was created within the American Society of International Law in 2013, for instance. By 2021, international law and technology was already considered ripe for “rethinking.” Some of this work has been solutionist, aimed at generating order-restoring answers to the “upset[s]” caused by technological change. Some of it has been constitutionalizing, canvassing prospects for “a transformative constitutionalism for the digital human condition.” Much of the scholarship has sought to give humanist (or post-humanist) pause to the ever-increasing pace of technological change.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49209345","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}
In a global context where political campaigning, social movements, and public discourse increasingly take place online, questions regarding the regulation of speech by social media platforms become ever more relevant. Companies like Facebook moderate content posted by users on their platforms through a mixture of automated decision making and human moderators. In this content moderation process, human rights play an ambiguous role: those who struggle with marginalization may find a space for expression and empowerment, or face exacerbation of pre-existing bias. Focusing on the role of human rights in Meta's content management, this essay explores how the protection of speech on social media platforms disadvantages the cultural, social, and economic rights of marginalized communities. This is not to say that speech on social media platforms is devoid of emancipatory potential, but that this potential is not uniformly or equally accessible. We see the incorporation of human rights considerations into decision-making processes as an avenue for alleviating this challenge. This approach faces obstacles from the platforms’ business models, which decenters human rights concerns, and from the limitations of liberal accounts of human rights. From within and against these constraints, human rights can be mobilized as emancipatory power in an effort to decrease marginalization.
{"title":"Bias in Social Media Content Management: What Do Human Rights Have to Do with It?","authors":"Dorothea Endres, Luisa Hedler, Kebene Wodajo","doi":"10.1017/aju.2023.23","DOIUrl":"https://doi.org/10.1017/aju.2023.23","url":null,"abstract":"In a global context where political campaigning, social movements, and public discourse increasingly take place online, questions regarding the regulation of speech by social media platforms become ever more relevant. Companies like Facebook moderate content posted by users on their platforms through a mixture of automated decision making and human moderators. In this content moderation process, human rights play an ambiguous role: those who struggle with marginalization may find a space for expression and empowerment, or face exacerbation of pre-existing bias. Focusing on the role of human rights in Meta's content management, this essay explores how the protection of speech on social media platforms disadvantages the cultural, social, and economic rights of marginalized communities. This is not to say that speech on social media platforms is devoid of emancipatory potential, but that this potential is not uniformly or equally accessible. We see the incorporation of human rights considerations into decision-making processes as an avenue for alleviating this challenge. This approach faces obstacles from the platforms’ business models, which decenters human rights concerns, and from the limitations of liberal accounts of human rights. From within and against these constraints, human rights can be mobilized as emancipatory power in an effort to decrease marginalization.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44264076","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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