Pub Date : 2023-08-30DOI: 10.1177/09240519231191172
I. Renzulli
This article explores the European Court of Human Rights’ evolving approach to gender stereotypes in judicial decisions under Article 14 of the European Convention on Human Rights (ECHR). In Carvalho Pinto de Sousa Morais v Portugal, the Court found the use of harmful gender stereotypes in judicial decisions to be a breach of Article 14 ECHR using a “novel” approach to establishing discrimination. The novelty, however, appears to have been subsequently diluted in the JL v Italy case. Here, the Court failed to consider Article 14 altogether. Side-lining article 14 in such cases has far-reaching consequences for the individual victim, and conceals the pervasive and systemic nature of gender discrimination. Lack of a robust anti-discrimination analysis also stunts the Court's ability to formulate general remedial action that may contribute towards changing institutional structures which perpetuate harmful gender stereotypes. This article argues that a clear and consistent approach to assessing gender stereotypes under Article 14 ECHR is needed if women's substantive equality is to be practical and effective.
本文探讨了欧洲人权法院根据《欧洲人权公约》(ECHR)第14条在司法判决中对性别刻板印象的演变方法。在Carvalho Pinto de Sousa Morais诉葡萄牙案中，法院认定在司法裁决中使用有害的性别刻板印象违反了《欧洲人权公约》第14条，使用了一种“新颖”的方法来确立歧视。然而，在随后的JL诉意大利案中，这种新颖性似乎被淡化了。在这里，法院完全没有考虑第14条。在这种情况下忽略第14条会对个别受害者产生深远的影响，并掩盖性别歧视的普遍和系统性质。缺乏强有力的反歧视分析也阻碍了法院制定一般补救行动的能力，这些行动可能有助于改变使有害的性别陈规定型观念长期存在的体制结构。本文认为，如果妇女的实质性平等是实际和有效的，就需要一个明确和一致的方法来评估《欧洲人权公约》第14条下的性别刻板印象。
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Pub Date : 2023-08-08DOI: 10.1177/09240519231191288
Adami Rebecca
How can human rights for children born outside their national jurisdiction with parents deemed as terrorists be safeguarded? In what ways do children risk being discriminated in their welfare rights in Sweden when treated as invisible part of a family? How can we do research on children ’ s rights in not just ethically sensitive ways but also with respect for children as rights subjects? And what could be a theory on social justice for children? These are questions discussed in studies from different disciplines concerning children ’ s international human rights, with a special focus on the realization of the CRC in Sweden
{"title":"Recent publications September 2023","authors":"Adami Rebecca","doi":"10.1177/09240519231191288","DOIUrl":"https://doi.org/10.1177/09240519231191288","url":null,"abstract":"How can human rights for children born outside their national jurisdiction with parents deemed as terrorists be safeguarded? In what ways do children risk being discriminated in their welfare rights in Sweden when treated as invisible part of a family? How can we do research on children ’ s rights in not just ethically sensitive ways but also with respect for children as rights subjects? And what could be a theory on social justice for children? These are questions discussed in studies from different disciplines concerning children ’ s international human rights, with a special focus on the realization of the CRC in Sweden","PeriodicalId":44610,"journal":{"name":"Netherlands Quarterly of Human Rights","volume":"44 1","pages":"174 - 176"},"PeriodicalIF":1.6,"publicationDate":"2023-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80998517","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-06-01DOI: 10.1177/09240519231177166
David Gómez Gamboa, R. Fontalvo
When we talk about knowledge, we talk about a prerequisite for the flourishing of society. Scholarship and international organisations have recognised that knowledge is pivotal to promote a democratic society and for development. Yet academic freedom, a paramount right for the adequate protection of knowledge, is under increasing threat around the world. In many countries, academics are feeling less able to teach, publish, and research in a manner that is free from government interference. In other countries, harassment and reprisals against universities,
{"title":"Academic freedom: A view from the Inter-American system of human rights","authors":"David Gómez Gamboa, R. Fontalvo","doi":"10.1177/09240519231177166","DOIUrl":"https://doi.org/10.1177/09240519231177166","url":null,"abstract":"When we talk about knowledge, we talk about a prerequisite for the flourishing of society. Scholarship and international organisations have recognised that knowledge is pivotal to promote a democratic society and for development. Yet academic freedom, a paramount right for the adequate protection of knowledge, is under increasing threat around the world. In many countries, academics are feeling less able to teach, publish, and research in a manner that is free from government interference. In other countries, harassment and reprisals against universities,","PeriodicalId":44610,"journal":{"name":"Netherlands Quarterly of Human Rights","volume":"17 1","pages":"67 - 74"},"PeriodicalIF":1.6,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72773827","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-05-07DOI: 10.1177/09240519231173662
Abrusci Elena
This book provides an innovative analysis of the complex issue of judicial convergence and fragmentation in international human rights law, moving the conversation forward from the assessment of the two phenomena and investigating their triggering factors. With a wide geographical focus that include the most up-to-date caselaw from the three main regional systems (the African, European and Inter-American) and the UN Human Rights Committee, the book confirms the predominant judicial convergence across international human rights law. On this basis, the book engages with an interdisciplinary investigation into the legal and non-legal factors that could explain both convergence and fragmentation, ranging from the use of judicial dialogue and the notions of necessity and proportionality to the composition of the courts and the role of NGOs. The aim is to provide the tools to understand the dynamics between human rights adjudicatory bodies and possibly foresee future instances of judicial fragmentation
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Pub Date : 2023-04-26DOI: 10.1177/09240519231171515
Grażyna Baranowska
The concept of ‘continuing violation’ allows reviewing applications concerning effects of violations that started before a treaty came into a force with regard to a state that allegedly committed the violation. This article analyses how the UN Human Rights Committee has recently approached two communications concerning continuing violations that occurred in the 1930s and 1940s (K.K. and Others v Russia; F.A.J. and B.M.R.A. v Spain). It critiques the fact that the Committee has introduced an additional qualification to its case law on continuing violations, namely that it has no jurisdiction over the violations with continuing effect, when underlying violations happened in the ‘very distant past’. The article argues that communications raising violations of the families of forcibly disappeared persons – at least these brought by their children – should not be ruled inadmissible because of time constraint since the disappearances. Lastly, the article reveals a tacit influence of the European Court of Human Rights on the Committee in the analysed case law.
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Pub Date : 2023-04-20DOI: 10.1177/09240519231169837
L. Glas
The Copenhagen Declaration (2018) welcomed European Court of Human Rights (Court) ‘continued strict and consistent’ application of the admissibility criteria, ‘including by requiring applicants to be more diligent in raising their Convention complaints domestically’ when exhausting domestic remedies. This article answers the question whether the Court has indeed required applicants to be more diligent in this respect. The answer contributes to a body of academic research studying to what extent and how the Court has developed the subsidiarity principle. Additionally, the answer is of great practical relevance to applicants and their representatives, because they may have to change how they plead their case before the domestic courts with a view to bringing a complaint in Strasbourg. The case-law analysis performed in this article shows that, in some recent rulings, which mainly hailed from the UK, the Court has indeed required applicants to be more diligent in raising their Convention complaints domestically. However, the Court does not maintain this stricter line consistently.
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Pub Date : 2023-03-01DOI: 10.1177/09240519231159997
F. Coomans
On 1 September 1985, I started my career as an Academic Assistant at the Faculty of Law of Maastricht University. I was recruited by Kees Flinterman, one of the founding fathers of the Faculty. Soon after that, Kees and Theo van Boven established a Project Group on Human Rights Research. I became a member and, after some time, it was agreed that I should write a PhD thesis on the human right to education, which I defended in 1992. Since then, a lot has happened in the field of human rights law and human rights research. The Maastricht Centre for Human Rights was established in 1993. It became well known for its research on economic, social, and cultural rights, which, at the time, were under-developed, under-researched, and sometimes called the ‘stepchild’ of the human rights family. Already back in 1986, the Limburg Principles on the Nature of State Parties Obligations under the International Covenant on Economic, Social, and Cultural Rights were adopted at an expert meeting in Maastricht to clarify these rights. I attended that meeting as a very junior researcher. From then on, economic, social, and cultural rights never left me. They became the source of inspiration for my own research, many collaborative projects, PhD research by young colleagues, and cooperation with academia and non-governmental organisations. I have always been intrigued by the question of how human rights law can be pushed further, with a view to respond to societal changes and challenges, and contribute to a fairer society. In other words, normative legal research about how the law should develop, de lege ferenda. In this address, I want to reflect on this period since 1985 by highlighting a number of key achievements in the progressive development of the law on economic, social, and cultural rights. Then, I will discuss the latest developments of this ongoing process of pushing the law further, namely the development of the human rights of future generations. When we follow the news, it is abundantly clear that the planet is in crisis. The future of mankind is at stake and facing ongoing, and very serious, threats: climate change, the reduction of potable water supplies, depletion of natural resources, the lack of renewable energy stocks, the risk of
1985年9月1日，我开始了在马斯特里赫特大学法学院担任学术助理的职业生涯。我是被基斯·弗林特曼招进来的，他是学院的创始人之一。此后不久，基斯和西奥·范伯文成立了一个人权研究项目小组。一段时间后，大家同意我应该写一篇关于受教育的人权的博士论文，1992年我为这篇论文辩护。从那时起，人权法和人权研究领域发生了许多变化。1993年设立了马斯特里赫特人权中心。它以对经济、社会和文化权利的研究而闻名，当时这些研究还不发达，研究不足，有时被称为人权家庭的“继子”。早在1986年，在马斯特里赫特举行的一次专家会议上就通过了《经济、社会和文化权利国际公约缔约国义务性质的林堡原则》，以澄清这些权利。我作为一名初级研究员参加了那次会议。从那时起，经济、社会和文化权利从未离开过我。它们成为我自己的研究、许多合作项目、年轻同事的博士研究以及与学术界和非政府组织合作的灵感来源。我一直对如何进一步推动人权法，以应对社会变化和挑战，并为一个更公平的社会做出贡献的问题很感兴趣。换句话说，关于法律应该如何发展的规范性法律研究，即法律议程(de lege ferenda)。在这次讲话中，我想回顾自1985年以来的这段时期，重点介绍在经济、社会和文化权利法律的逐步发展中取得的一些重要成就。然后，我将讨论这一正在进行的进一步推动法律进程的最新发展，即后代人权的发展。当我们关注新闻时，很明显地球正处于危机之中。人类的未来岌岌可危，面临着持续的、非常严重的威胁:气候变化、饮用水供应减少、自然资源枯竭、可再生能源储备缺乏、风险
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Pub Date : 2023-03-01DOI: 10.1177/09240519231151943
V. Bílková
The article provides the first comprehensive assessment of age-based triage from the perspective of human rights. Triage, that is the sorting of patients into categories of priority of treatment, has been known for decades. It has however got larger prominence during the Covid-19 crisis. The crisis has exposed healthcare systems in many countries to a critical shortage of resources, forcing them to consider resorting to triage. The absence of legal rules has been compensated by non-binding triage guidelines, adopted by professional medical and ethical associations. This article analyses 11 guidelines, showing that none of them is truly age neutral. Some use allocation criteria that entail disparate treatment of older persons, consisting of their de-prioritization or exclusion from access to life-saving treatment on account of their age. Others rely on allocation criteria whose application has disparate effects on older persons. The article argues that whereas the latter approach could be compatible with human rights standards, the former entails violations of the principle of non-discrimination and of several other human rights (the right to life, the prohibition of inhuman and degrading treatment, the right to private life, and the right to health).
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Pub Date : 2023-03-01DOI: 10.1177/09240519231152676
Banda Fareda
This innovative book looks at the topic of migration through the prism of law and literature. The author uses a rich mix of novels, short stories, literary realism, human rights and comparative literature to explore the experiences of African migrants and asylum seekers. The book is divided into two. Part one is conceptual and focuses on art activism and the myriad ways in which people have sought to ‘ write justice. ’ Using Mamdani ’ s diasporas of slavery and colonialism, it then considers histories of migration across the centuries before honing in on the recent anti-migration policies of western states. Achiume is used to show how these histories of imposition and exploitation create a bond which bestows on Africans a “ status as co-sovereigns of the First World through citizenship. ” The many fi ctional examples of the schemes used to gain entry are set against the formal legal processes. Attention is paid to life post arrival which for asylum seekers may include periods in deten-tion. The impact of the increased hostility of receiving states is examined in light of their human rights obligations. Consideration is paid to how Africans navigate their post-migration lives which includes reconciling themselves to status fracture-taking on jobs for which they are over-quali fi ed, while simultaneously dealing with the resentment borne of status threat on the part of the citizenry. Part two moves from the general to consider the intersections of gender and status focusing on women, LGBTI individuals and children. Focusing on their human rights and the fi ctional literature, chapter four looks at women who have been traf fi cked as well as domestic workers and hotel maids while chapter fi ve is on LGBTI people whose legal and literary stories are only now being told. The fi nal substantive chapter considers the experiences of children who may arrive as unaccompanied minors. Using a mixture of poetry and fi rst person accounts, the chapter examines the post-arrival lives of children, some of whom may be citizens but who are continually made to feel like outsiders. The conclusion follows, starting with two stories about walls by Hadero and Lanchester which are used to illustrate the themes discussed in the book. Few African lawyers write about literature and few books and articles in Western law
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Pub Date : 2023-02-27DOI: 10.1177/09240519231156060
A. Nolan
This column explores the intersection between human rights and the ongoing cost-of-living crisis. It opens with an overview of the crisis before turning to the current global state of affairs’ impact on human rights enjoyment. Having addressed key issues that arise in terms of State obligations and how international human rights law as it stands might be deployed to address them, it focuses on how the crisis constitutes an opportunity to advance new horizons in human rights, particularly those related to energy and the implications of responses to crises for the right to a safe, clean, healthy, and sustainable environment. The piece makes clear that if they are to remain effective and relevant, human rights, and those responsible for applying and enforcing them, need to engage with the cost-of-living crisis head-on.
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