Pub Date : 2022-04-04DOI: 10.1177/09240519221092591
Lieneke Slingenberg
Social rights (right to social security and social welfare) and mobility rights (right to freedom of movement within the territory) are the only two rights in European human rights law that limit their scope of application to persons lawfully in the territory. Migrants have contested this limitation in two ways: (1) arguing for exceptions to, or for a broad interpretation of, the concept of lawful presence, and (2) arguing that such policies violate other human rights that apply to everyone. This article examines the responses in European case law to these arguments, and shows a striking difference between cases on social rights and cases on mobility rights. While European courts and treaty bodies have significantly expanded the personal scope of social rights and/or the material scope of civil rights into the social realm, they have refrained from doing so as regards mobility rights. This finding is relevant for two reasons. First, it nuances the general idea that civil rights are privileged over social rights. Second, it nuances concerns about human rights ‘proliferation’ or ‘overreach’, which have been voiced as regards the expansion of migrants’ social rights.
{"title":"European case law on migrants’ social and mobility rights: The need for a comparative approach in assessing ‘human rights overreach’","authors":"Lieneke Slingenberg","doi":"10.1177/09240519221092591","DOIUrl":"https://doi.org/10.1177/09240519221092591","url":null,"abstract":"Social rights (right to social security and social welfare) and mobility rights (right to freedom of movement within the territory) are the only two rights in European human rights law that limit their scope of application to persons lawfully in the territory. Migrants have contested this limitation in two ways: (1) arguing for exceptions to, or for a broad interpretation of, the concept of lawful presence, and (2) arguing that such policies violate other human rights that apply to everyone. This article examines the responses in European case law to these arguments, and shows a striking difference between cases on social rights and cases on mobility rights. While European courts and treaty bodies have significantly expanded the personal scope of social rights and/or the material scope of civil rights into the social realm, they have refrained from doing so as regards mobility rights. This finding is relevant for two reasons. First, it nuances the general idea that civil rights are privileged over social rights. Second, it nuances concerns about human rights ‘proliferation’ or ‘overreach’, which have been voiced as regards the expansion of migrants’ social rights.","PeriodicalId":44610,"journal":{"name":"Netherlands Quarterly of Human Rights","volume":"20 1","pages":"98 - 117"},"PeriodicalIF":1.6,"publicationDate":"2022-04-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80266451","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 : 2022-03-01DOI: 10.1177/09240519221086436
Felix E. Torres
The Inter-American Court of Human Rights has traditionally addressed the socio-economic wrongs that result from episodes of widespread violence indirectly, under the lens of civil and political rights abuses. This article provides a historical explanation of this approach and expands on the limitations that follow from it in the Court's jurisprudence. Using empirical data on victims and perpetrators in countries affected by armed conflict and organised crime, the article measures the magnitude of these limitations. To overcome them, it suggests that the right to a ‘dignified life’ and recent developments concerning the enforceability of economic and social rights be applied after widespread violence, following the lead of the Colombian Constitutional Court regarding the protection of internally displaced people by violence.
{"title":"The State, the assailant? Guaranteeing economic and social rights after widespread violence through the Inter-American Court of Human Rights","authors":"Felix E. Torres","doi":"10.1177/09240519221086436","DOIUrl":"https://doi.org/10.1177/09240519221086436","url":null,"abstract":"The Inter-American Court of Human Rights has traditionally addressed the socio-economic wrongs that result from episodes of widespread violence indirectly, under the lens of civil and political rights abuses. This article provides a historical explanation of this approach and expands on the limitations that follow from it in the Court's jurisprudence. Using empirical data on victims and perpetrators in countries affected by armed conflict and organised crime, the article measures the magnitude of these limitations. To overcome them, it suggests that the right to a ‘dignified life’ and recent developments concerning the enforceability of economic and social rights be applied after widespread violence, following the lead of the Colombian Constitutional Court regarding the protection of internally displaced people by violence.","PeriodicalId":44610,"journal":{"name":"Netherlands Quarterly of Human Rights","volume":"51 1","pages":"12 - 34"},"PeriodicalIF":1.6,"publicationDate":"2022-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90695011","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 : 2022-03-01DOI: 10.1177/09240519221085342
J. Fraser, Laura Magdalena Henderson
Climate change is already being felt around the world, impacting a range of human rights including ultimately the right to life. While a healthy environment is a pre-condition for the enjoyment of rights, the environment is not mentioned in the foundational human rights document – Universal Declaration of Human Rights – nor is it specifically protected in subsequent international human rights treaties. This artificial division is partially a function of the separate development of international human rights and environmental law in the last century, which today needs urgently to be bridged. Progress is slowly being made, such as the 2021 Resolution recognising the right to a healthy environment by the UN Human Rights Council and the various petitions being lodged before human rights bodies. This column discusses the (long overdue) recognition of the human rights/environment nexus and the subsequent human rights turn in climate change litigation. In light of the challenges still faced when addressing the impacts of climate change under human rights law, we engage in (self-)reflection on the professional responsibilities of judges/decision-makers, lawyers, and scholars as active participants in the development of the law as well as the struggle for climate justice. We urge these legal professionals to be aware of the power they have in shaping these developments, and discuss how their role can be performed responsibly.
{"title":"The human rights turn in climate change litigation and responsibilities of legal professionals","authors":"J. Fraser, Laura Magdalena Henderson","doi":"10.1177/09240519221085342","DOIUrl":"https://doi.org/10.1177/09240519221085342","url":null,"abstract":"Climate change is already being felt around the world, impacting a range of human rights including ultimately the right to life. While a healthy environment is a pre-condition for the enjoyment of rights, the environment is not mentioned in the foundational human rights document – Universal Declaration of Human Rights – nor is it specifically protected in subsequent international human rights treaties. This artificial division is partially a function of the separate development of international human rights and environmental law in the last century, which today needs urgently to be bridged. Progress is slowly being made, such as the 2021 Resolution recognising the right to a healthy environment by the UN Human Rights Council and the various petitions being lodged before human rights bodies. This column discusses the (long overdue) recognition of the human rights/environment nexus and the subsequent human rights turn in climate change litigation. In light of the challenges still faced when addressing the impacts of climate change under human rights law, we engage in (self-)reflection on the professional responsibilities of judges/decision-makers, lawyers, and scholars as active participants in the development of the law as well as the struggle for climate justice. We urge these legal professionals to be aware of the power they have in shaping these developments, and discuss how their role can be performed responsibly.","PeriodicalId":44610,"journal":{"name":"Netherlands Quarterly of Human Rights","volume":"43 1","pages":"3 - 11"},"PeriodicalIF":1.6,"publicationDate":"2022-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84775896","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 : 2022-02-01DOI: 10.1177/09240519221076337
D. Augenstein
The article takes stock of developments in domestic and international law concerning the regulation of adverse human rights impacts by global business enterprises, one decade after the adoption of the UN Guiding Principles on Business and Human Rights (UNGPs) and the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights (Maastricht Principles). It discusses these soft-law instruments in the light of long-standing systemic obstacles to holding business enterprises legally accountable for their global human rights impacts. The article argues for a new legal consensus on business and human rights, grounded in the increasing recognition by States that corporate respect for human rights should be brought under the purview of (international) human rights law. This consensus builds on the gradual convergence between the regulatory models that underpin the UNGPs and the Maastricht Principles, such that States’ domestic regulation of business enterprises with extraterritorial effect becomes anchored in international legal obligations towards foreign victims of business-related human rights violations.
{"title":"Towards a new legal consensus on business and human rights: A 10th anniversary essay","authors":"D. Augenstein","doi":"10.1177/09240519221076337","DOIUrl":"https://doi.org/10.1177/09240519221076337","url":null,"abstract":"The article takes stock of developments in domestic and international law concerning the regulation of adverse human rights impacts by global business enterprises, one decade after the adoption of the UN Guiding Principles on Business and Human Rights (UNGPs) and the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights (Maastricht Principles). It discusses these soft-law instruments in the light of long-standing systemic obstacles to holding business enterprises legally accountable for their global human rights impacts. The article argues for a new legal consensus on business and human rights, grounded in the increasing recognition by States that corporate respect for human rights should be brought under the purview of (international) human rights law. This consensus builds on the gradual convergence between the regulatory models that underpin the UNGPs and the Maastricht Principles, such that States’ domestic regulation of business enterprises with extraterritorial effect becomes anchored in international legal obligations towards foreign victims of business-related human rights violations.","PeriodicalId":44610,"journal":{"name":"Netherlands Quarterly of Human Rights","volume":"30 1","pages":"35 - 55"},"PeriodicalIF":1.6,"publicationDate":"2022-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89171339","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 : 2022-01-13DOI: 10.1177/09240519211072424
M. Faix, Ayyoub Jamali
Employing a sociological perspective on the law, this study explores instances of resistance against the African Court on Human and Peoples’ Rights, the African Union’s continental human rights judicial body. This approach allows us to examine different forms of resistance that might not necessarily be of a legal character, but which may still have profound implications for the Court’s authority, legitimacy, and operation. Accordingly, the article identifies two forms of resistance against the African Court: ‘pushback’ and ‘backlash’. The former refers to an ordinary form of critique directed against the overall development of an international court, while the latter is understood as an extraordinary form of critique that puts the fundamental authority of a court at stake. While pushback was mainly seen in the early stages of the Court’s establishment, backlash started to emerge following its ground-breaking judgments that caused heated debates on controversial topics. This article concludes that based on the identified and analysed forms of resistance, it is doubtful that the African Court can maintain and fulfil the purpose for which it was established: the protection and promotion of human rights in Africa.
{"title":"Is the African Court on Human and Peoples’ Rights in an Existential Crisis?","authors":"M. Faix, Ayyoub Jamali","doi":"10.1177/09240519211072424","DOIUrl":"https://doi.org/10.1177/09240519211072424","url":null,"abstract":"Employing a sociological perspective on the law, this study explores instances of resistance against the African Court on Human and Peoples’ Rights, the African Union’s continental human rights judicial body. This approach allows us to examine different forms of resistance that might not necessarily be of a legal character, but which may still have profound implications for the Court’s authority, legitimacy, and operation. Accordingly, the article identifies two forms of resistance against the African Court: ‘pushback’ and ‘backlash’. The former refers to an ordinary form of critique directed against the overall development of an international court, while the latter is understood as an extraordinary form of critique that puts the fundamental authority of a court at stake. While pushback was mainly seen in the early stages of the Court’s establishment, backlash started to emerge following its ground-breaking judgments that caused heated debates on controversial topics. This article concludes that based on the identified and analysed forms of resistance, it is doubtful that the African Court can maintain and fulfil the purpose for which it was established: the protection and promotion of human rights in Africa.","PeriodicalId":44610,"journal":{"name":"Netherlands Quarterly of Human Rights","volume":"20 1","pages":"56 - 74"},"PeriodicalIF":1.6,"publicationDate":"2022-01-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85887617","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 : 2022-01-07DOI: 10.1177/09240519211072936
Witte
Leading legal scholar John Witte, Jr. explores the role religion played in the development of rights in the Western legal tradition and traces the complex interplay between human rights and religious freedom norms in modern domestic and international law. He examines how US courts are moving towards greater religious freedom, while recent decisions of the pan-European courts in Strasbourg and Luxembourg have harmed new religious minorities and threatened old religious traditions in Europe. Witte argues that the robust promotion and protection of religious freedom is the best way to protect many other fundamental rights today, even though religious freedom and other fundamental rights sometimes clash and need judicious balancing. He also responds to various modern critics who see human rights as a betrayal of Christianity and religious freedom as a betrayal of human rights.
{"title":"Recent publications in international human rights law","authors":"Witte","doi":"10.1177/09240519211072936","DOIUrl":"https://doi.org/10.1177/09240519211072936","url":null,"abstract":"Leading legal scholar John Witte, Jr. explores the role religion played in the development of rights in the Western legal tradition and traces the complex interplay between human rights and religious freedom norms in modern domestic and international law. He examines how US courts are moving towards greater religious freedom, while recent decisions of the pan-European courts in Strasbourg and Luxembourg have harmed new religious minorities and threatened old religious traditions in Europe. Witte argues that the robust promotion and protection of religious freedom is the best way to protect many other fundamental rights today, even though religious freedom and other fundamental rights sometimes clash and need judicious balancing. He also responds to various modern critics who see human rights as a betrayal of Christianity and religious freedom as a betrayal of human rights.","PeriodicalId":44610,"journal":{"name":"Netherlands Quarterly of Human Rights","volume":"177 1","pages":"75 - 79"},"PeriodicalIF":1.6,"publicationDate":"2022-01-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79874433","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 : 2021-11-13DOI: 10.1177/09240519211056204
M. Bachelet
Distinguished participants, dear students, I am pleased to join you today in celebrating the 40th anniversary of the Utrecht University’s Human Rights Centre. This celebration comes at a challenging time, when we are facing global threats to human rights across the globe. COVID-19 has shown us a world immersed in human rights gaps – and it has made them deeper and wider. The pandemic has exposed the weaknesses of political, economic and health systems, and laid bare systemic discrimination and deep structural inequalities everywhere, both within and between countries. At the same time, our world continues to suffer with climate change, pollution, and biodiversity loss. This triple planetary crisis created and sustained by human action – and inaction – is also directly and severely impacting a broad range of rights, including the rights to adequate food, water, education, housing, health, development, and even life itself. One of the greatest uncertainties about these challenges is what policymakers will do about them. Earlier this year I told the United Nations Human Rights Council that ‘navigating a clear way out of the complex COVID-19 crisis, and towards an inclusive, green, sustainable and resilient future, will be the work of this generation of world leaders – or their downfall.’ So, in the midst of so many threats to human lives, livelihoods and rights, allow me to share with you some thoughts on how grave they are – and, on how, together, we can overcome them. Recent months have unleashed extreme and murderous climate events on people in every region of the world: monumental fires in Siberia and California; huge sudden floods in China, Germany
{"title":"SIM Peter Baehr Lecture – Life Begins at Forty: Human Rights for the Future","authors":"M. Bachelet","doi":"10.1177/09240519211056204","DOIUrl":"https://doi.org/10.1177/09240519211056204","url":null,"abstract":"Distinguished participants, dear students, I am pleased to join you today in celebrating the 40th anniversary of the Utrecht University’s Human Rights Centre. This celebration comes at a challenging time, when we are facing global threats to human rights across the globe. COVID-19 has shown us a world immersed in human rights gaps – and it has made them deeper and wider. The pandemic has exposed the weaknesses of political, economic and health systems, and laid bare systemic discrimination and deep structural inequalities everywhere, both within and between countries. At the same time, our world continues to suffer with climate change, pollution, and biodiversity loss. This triple planetary crisis created and sustained by human action – and inaction – is also directly and severely impacting a broad range of rights, including the rights to adequate food, water, education, housing, health, development, and even life itself. One of the greatest uncertainties about these challenges is what policymakers will do about them. Earlier this year I told the United Nations Human Rights Council that ‘navigating a clear way out of the complex COVID-19 crisis, and towards an inclusive, green, sustainable and resilient future, will be the work of this generation of world leaders – or their downfall.’ So, in the midst of so many threats to human lives, livelihoods and rights, allow me to share with you some thoughts on how grave they are – and, on how, together, we can overcome them. Recent months have unleashed extreme and murderous climate events on people in every region of the world: monumental fires in Siberia and California; huge sudden floods in China, Germany","PeriodicalId":44610,"journal":{"name":"Netherlands Quarterly of Human Rights","volume":"11 1","pages":"329 - 334"},"PeriodicalIF":1.6,"publicationDate":"2021-11-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78976590","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 : 2021-11-06DOI: 10.1177/09240519211055648
D. Fennelly, Clíodhna Murphy
The principles of equality and non-discrimination offer potentially valuable tools to challenge discriminatory practices employed by States against non-citizens. However, nationality and immigration-related exceptions are an established feature of non-discrimination laws. Such exceptions raise fundamental questions about the scope of the protection offered by anti-discrimination laws and have the potential to perpetuate, rather than eliminate, race discrimination. This article addresses this critical but often neglected issue, through a doctrinal analysis of two specific exceptions - Articles 1(2) and 1(3) of the UN Convention on the Elimination of All Forms of Racial Discrimination and Article 3(2) of the EU's Race Equality Directive - and an examination of their impact in practice at the domestic level. We argue that nationality and migration status exceptions must be interpreted as narrowly as possible, in line with the core purpose of these instruments to eliminate race discrimination. Furthermore, we suggest that the interplay between these legal frameworks at the domestic level of implementation takes on particular importance in defining the scope and limits of nationality and migration-based exceptions.
{"title":"Racial Discrimination and Nationality and Migration Exceptions: Reconciling CERD and the Race Equality Directive","authors":"D. Fennelly, Clíodhna Murphy","doi":"10.1177/09240519211055648","DOIUrl":"https://doi.org/10.1177/09240519211055648","url":null,"abstract":"The principles of equality and non-discrimination offer potentially valuable tools to challenge discriminatory practices employed by States against non-citizens. However, nationality and immigration-related exceptions are an established feature of non-discrimination laws. Such exceptions raise fundamental questions about the scope of the protection offered by anti-discrimination laws and have the potential to perpetuate, rather than eliminate, race discrimination. This article addresses this critical but often neglected issue, through a doctrinal analysis of two specific exceptions - Articles 1(2) and 1(3) of the UN Convention on the Elimination of All Forms of Racial Discrimination and Article 3(2) of the EU's Race Equality Directive - and an examination of their impact in practice at the domestic level. We argue that nationality and migration status exceptions must be interpreted as narrowly as possible, in line with the core purpose of these instruments to eliminate race discrimination. Furthermore, we suggest that the interplay between these legal frameworks at the domestic level of implementation takes on particular importance in defining the scope and limits of nationality and migration-based exceptions.","PeriodicalId":44610,"journal":{"name":"Netherlands Quarterly of Human Rights","volume":"11 1","pages":"308 - 328"},"PeriodicalIF":1.6,"publicationDate":"2021-11-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87948047","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 : 2021-11-06DOI: 10.1177/09240519211057240
Ramindu Perera
The minimalist critique of human rights advanced by legal historian Samuel Moyn argues that human rights are ineffective in addressing material inequality because, rather than striving for equality, they focus on ensuring sufficient protection levels. This article analyses the right to education model which international human rights bodies have expanded to demonstrate the overstretched nature of the minimalist critique. By examining how the right to education provisions of international human rights treaties are interpreted by various United Nations human rights mechanisms, the article argues that the international human rights system has advanced a model of right to education that reaches beyond the notion of sufficiency. The works of these bodies are analysed in light of the privatisation of education. In defining the connection between the equality and liberty dimensions of the right to education, international human rights bodies have prioratised ensuring equal opportunities over the liberty to private education. The aim of the right to education is not merely to provide basic literacy to the poor but also to assure equal educational opportunities to all.
{"title":"Beyond the Minimalist Critique: An Assessment of the Right to Education in International Human Rights Law","authors":"Ramindu Perera","doi":"10.1177/09240519211057240","DOIUrl":"https://doi.org/10.1177/09240519211057240","url":null,"abstract":"The minimalist critique of human rights advanced by legal historian Samuel Moyn argues that human rights are ineffective in addressing material inequality because, rather than striving for equality, they focus on ensuring sufficient protection levels. This article analyses the right to education model which international human rights bodies have expanded to demonstrate the overstretched nature of the minimalist critique. By examining how the right to education provisions of international human rights treaties are interpreted by various United Nations human rights mechanisms, the article argues that the international human rights system has advanced a model of right to education that reaches beyond the notion of sufficiency. The works of these bodies are analysed in light of the privatisation of education. In defining the connection between the equality and liberty dimensions of the right to education, international human rights bodies have prioratised ensuring equal opportunities over the liberty to private education. The aim of the right to education is not merely to provide basic literacy to the poor but also to assure equal educational opportunities to all.","PeriodicalId":44610,"journal":{"name":"Netherlands Quarterly of Human Rights","volume":"13 1","pages":"268 - 290"},"PeriodicalIF":1.6,"publicationDate":"2021-11-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82313838","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 : 2021-10-28DOI: 10.1177/09240519211053932
K. de Vries, T. Spijkerboer
In the case law of the European Court of Human Rights (ECtHR) the right of States to control migration is firmly established despite strong indications that the effects of migration control are not racially neutral. In this article we attempt to understand how it is possible that the doctrine of sovereign migration control is not considered to breach the prohibition of racial discrimination. We argue that the ECtHR’s approach to migration and racial discrimination fits a pattern in the historical development of migration law whereby the right to travel, and the power of States to restrict this right, have been consistently defined in such a way as to protect the interests of the predominantly white population of today's global North. Hence, the ease with which the racialised impact of migration control is accepted as normal and compatible with the prohibition of racial discrimination is consistent with migration law's long history as part of colonial and postcolonial relations.
{"title":"Race and the regulation of international migration. The ongoing impact of colonialism in the case law of The European Court of Human Rights","authors":"K. de Vries, T. Spijkerboer","doi":"10.1177/09240519211053932","DOIUrl":"https://doi.org/10.1177/09240519211053932","url":null,"abstract":"In the case law of the European Court of Human Rights (ECtHR) the right of States to control migration is firmly established despite strong indications that the effects of migration control are not racially neutral. In this article we attempt to understand how it is possible that the doctrine of sovereign migration control is not considered to breach the prohibition of racial discrimination. We argue that the ECtHR’s approach to migration and racial discrimination fits a pattern in the historical development of migration law whereby the right to travel, and the power of States to restrict this right, have been consistently defined in such a way as to protect the interests of the predominantly white population of today's global North. Hence, the ease with which the racialised impact of migration control is accepted as normal and compatible with the prohibition of racial discrimination is consistent with migration law's long history as part of colonial and postcolonial relations.","PeriodicalId":44610,"journal":{"name":"Netherlands Quarterly of Human Rights","volume":"9 1","pages":"291 - 307"},"PeriodicalIF":1.6,"publicationDate":"2021-10-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90055661","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}
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