{"title":"The Right of the Child to Play: From Conception to Implementation","authors":"Louise Forde","doi":"10.1093/hrlr/ngae005","DOIUrl":"https://doi.org/10.1093/hrlr/ngae005","url":null,"abstract":"","PeriodicalId":46556,"journal":{"name":"Human Rights Law Review","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2024-03-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140394085","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}
{"title":"Women and International Human Rights in Modern Times: A Contemporary Casebook","authors":"Amit Kumar Sinha","doi":"10.1093/hrlr/ngae007","DOIUrl":"https://doi.org/10.1093/hrlr/ngae007","url":null,"abstract":"","PeriodicalId":46556,"journal":{"name":"Human Rights Law Review","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2024-03-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140393499","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}
States owe duties under human rights law to protect individuals from climate harm by mitigating climate change individually and collectively, in order to secure the Paris Agreement’s 1.5°C goal. It is, however, unclear what human rights law requires of states generally in terms of emissions reduction trajectories. This article elucidates that question, by looking at what reduction obligations can be deduced from scholarship and the work of human rights enforcement mandates. It argues that it is not possible to deduce individualized reduction obligations or methods to calculate such obligations from the current body of human rights law. The article then explores three different pathways to achieve such concretization: law-making, litigation, and monitoring bodies. The analysis provides a platform for human rights law to realize its potential in advancing state ambition on mitigating climate change at the norm-level by assessing the promise of the different pathways to concretization.
{"title":"What’s in a Right? Concretizing States’ Climate Change Mitigation Obligations under Human Rights Law","authors":"Linnéa Nordlander","doi":"10.1093/hrlr/ngae001","DOIUrl":"https://doi.org/10.1093/hrlr/ngae001","url":null,"abstract":"States owe duties under human rights law to protect individuals from climate harm by mitigating climate change individually and collectively, in order to secure the Paris Agreement’s 1.5°C goal. It is, however, unclear what human rights law requires of states generally in terms of emissions reduction trajectories. This article elucidates that question, by looking at what reduction obligations can be deduced from scholarship and the work of human rights enforcement mandates. It argues that it is not possible to deduce individualized reduction obligations or methods to calculate such obligations from the current body of human rights law. The article then explores three different pathways to achieve such concretization: law-making, litigation, and monitoring bodies. The analysis provides a platform for human rights law to realize its potential in advancing state ambition on mitigating climate change at the norm-level by assessing the promise of the different pathways to concretization.","PeriodicalId":46556,"journal":{"name":"Human Rights Law Review","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2024-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139658705","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}
Focusing on evidentiary approaches, this article examines the burdens and standards of proof applied at United Nations quasi-judicial international human rights bodies. These bodies have dual-faceted mandates, combining legal and human rights traditions and imperatives. However, they diverge in their approach to evidence. This article argues that the prima facie approach developed over the Working Group on Arbitrary Detention's 30 years of jurisprudence provides an appropriately flexible and conceptually coherent means of accommodating combined human rights and the judicial mandates. Nonetheless, this approach requires lexiconic and taxonomical tightening, and clarification of its standard of proof. Comparing the approaches taken by other quasi-judicial bodies, this article builds the impetus towards inter-institutional consistency. It reviews proposals such as wholesale reversal of the burden of proof onto Governments. It highlights the drawbacks of that unilateral type of burden and the risks that it would introduce further uncertainty for parties to proceedings, may cause onerous difficulties for claimants, and would potentially flood the human rights institutions with unsubstantiated claims.
{"title":"Reconciling the Dual-Faceted Mandates of Quasi-Judicial Human Rights Bodies: The Working Group on Arbitrary Detention’s Prima Facie Approach to Evidence","authors":"Matthew Gillett, Yutaka Karukaya, Mia Marzotto","doi":"10.1093/hrlr/ngad045","DOIUrl":"https://doi.org/10.1093/hrlr/ngad045","url":null,"abstract":"Focusing on evidentiary approaches, this article examines the burdens and standards of proof applied at United Nations quasi-judicial international human rights bodies. These bodies have dual-faceted mandates, combining legal and human rights traditions and imperatives. However, they diverge in their approach to evidence. This article argues that the prima facie approach developed over the Working Group on Arbitrary Detention's 30 years of jurisprudence provides an appropriately flexible and conceptually coherent means of accommodating combined human rights and the judicial mandates. Nonetheless, this approach requires lexiconic and taxonomical tightening, and clarification of its standard of proof. Comparing the approaches taken by other quasi-judicial bodies, this article builds the impetus towards inter-institutional consistency. It reviews proposals such as wholesale reversal of the burden of proof onto Governments. It highlights the drawbacks of that unilateral type of burden and the risks that it would introduce further uncertainty for parties to proceedings, may cause onerous difficulties for claimants, and would potentially flood the human rights institutions with unsubstantiated claims.","PeriodicalId":46556,"journal":{"name":"Human Rights Law Review","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2024-01-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139588270","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}
Although climate change is among the main ecological crisis the world is grappling with today, relevant discourses on the subject often focus exclusively on the existential threats it presents ignoring other associated risks, including how it exacerbates modern slavery vulnerabilities. Despite already constituting a major human rights challenge, climate change promises to further exacerbate the modern slavery conundrum in Africa. Thus, in this paper, two interconnected questions are engaged with. Firstly, the climate crisis is interrogated vis-à-vis the way it induces modern slavery vulnerabilities in Africa and undermines human rights. The second aspect assesses the utility of the human rights framework in climate change action and its potential to protect modern slavery victims. While African countries are obligated to implement mitigation and adaptation strategies within their jurisdictions, to effectively address the modern slavery challenge, the paper suggests a stronger focus on global climate action via international cooperation and debt-for-nature swap.
{"title":"Climate Change and the Modern Slavery Conundrum in Africa: Reimagining the Relevance of Human Rights Law","authors":"Daniel Ogunniyi","doi":"10.1093/hrlr/ngad043","DOIUrl":"https://doi.org/10.1093/hrlr/ngad043","url":null,"abstract":"Although climate change is among the main ecological crisis the world is grappling with today, relevant discourses on the subject often focus exclusively on the existential threats it presents ignoring other associated risks, including how it exacerbates modern slavery vulnerabilities. Despite already constituting a major human rights challenge, climate change promises to further exacerbate the modern slavery conundrum in Africa. Thus, in this paper, two interconnected questions are engaged with. Firstly, the climate crisis is interrogated vis-à-vis the way it induces modern slavery vulnerabilities in Africa and undermines human rights. The second aspect assesses the utility of the human rights framework in climate change action and its potential to protect modern slavery victims. While African countries are obligated to implement mitigation and adaptation strategies within their jurisdictions, to effectively address the modern slavery challenge, the paper suggests a stronger focus on global climate action via international cooperation and debt-for-nature swap.","PeriodicalId":46556,"journal":{"name":"Human Rights Law Review","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2024-01-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139588293","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}
Terrorism is currently one of the principal threats to peace and security in Africa. In law enforcement responses to terrorism, affected states often employ excessive or indiscriminate force through their security forces. In addition to violating international legal standards, research suggests that this unlawful use of force is itself a driver of violence, potentially perpetuating terrorist violence in a continent vulnerable to violent extremism. This article assesses the legal and policy response of the African regional system to the use of excessive force during counterterrorism policing, focusing principally on the roles of the counterterrorism architecture and human rights system. The article finds that whilst some positive steps have been made towards greater respect of international norms, the current response has material gaps and inadequacies. A two-pronged framework for a comprehensive regional response to the problem is proposed, combining clarification of the applicable rules with greater action from regional institutions.
{"title":"On the Road to Silent Guns: Examining the Regional Regulation of States’ Use of Force during Counterterrorism Policing in Africa","authors":"Alero I Fenemigho","doi":"10.1093/hrlr/ngad040","DOIUrl":"https://doi.org/10.1093/hrlr/ngad040","url":null,"abstract":"Terrorism is currently one of the principal threats to peace and security in Africa. In law enforcement responses to terrorism, affected states often employ excessive or indiscriminate force through their security forces. In addition to violating international legal standards, research suggests that this unlawful use of force is itself a driver of violence, potentially perpetuating terrorist violence in a continent vulnerable to violent extremism. This article assesses the legal and policy response of the African regional system to the use of excessive force during counterterrorism policing, focusing principally on the roles of the counterterrorism architecture and human rights system. The article finds that whilst some positive steps have been made towards greater respect of international norms, the current response has material gaps and inadequacies. A two-pronged framework for a comprehensive regional response to the problem is proposed, combining clarification of the applicable rules with greater action from regional institutions.","PeriodicalId":46556,"journal":{"name":"Human Rights Law Review","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2023-12-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139051656","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}
How does the European Court of Human Rights (ECtHR) understand the nature of human rights? The article develops a framework for the analysis of this question and shows how it can be applied. The first part identifies a gap at the intersection of doctrinal and philosophical approaches to human rights practice that leaves the ECtHR’s understanding of the nature of rights unaccounted for. The second part develops an analytic and methodological framework based on the idea of grounds, content and scope of human rights to bridge this disciplinary divide and facilitate a more perspicuous analysis of the Court’s conception of the nature of human rights. The third part tests this framework by examining the Court’s doctrines in relation to freedom of thought, conscience and religion and the right to free elections.
{"title":"Uncovering the Nature of ECHR Rights: An Analytical and Methodological Framework","authors":"Bosko Tripkovic, Alain Zysset","doi":"10.1093/hrlr/ngad034","DOIUrl":"https://doi.org/10.1093/hrlr/ngad034","url":null,"abstract":"How does the European Court of Human Rights (ECtHR) understand the nature of human rights? The article develops a framework for the analysis of this question and shows how it can be applied. The first part identifies a gap at the intersection of doctrinal and philosophical approaches to human rights practice that leaves the ECtHR’s understanding of the nature of rights unaccounted for. The second part develops an analytic and methodological framework based on the idea of grounds, content and scope of human rights to bridge this disciplinary divide and facilitate a more perspicuous analysis of the Court’s conception of the nature of human rights. The third part tests this framework by examining the Court’s doctrines in relation to freedom of thought, conscience and religion and the right to free elections.","PeriodicalId":46556,"journal":{"name":"Human Rights Law Review","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2023-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138517719","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}
The present article engages with human rights law’s purported ‘theoretical crisis’, according to which rights—and specifically those in the European Convention on Human Rights (ECHR)—are bereft of a convincing theoretical foundation. In doing so, the article interrogates the use of crisis-oriented language, challenging the very idea of a ‘theoretical crisis’ of rights. Identifying the tension between judicial activism and judicial deference as the source of the crisis narrative, this piece engages with the theoretical foundations of ECHR rights, rejecting binary opposition between opposing moral and political accounts of these rights. It presents an alternative account by framing human rights as capable of combining convincing moral foundations with institutional and political realities. This means melding principle and dynamism, and using moral values to interrogate a human rights law that remains indivisible from its institutional backdrop. Under this account, both the Court’s tools of deference, especially its European consensus doctrine, and the objection of rights inflationism must be subjected to scrutiny. This article straddles theory and practice to allow for a fresh perspective concerning the justification of rights, what is at stake, who bears the burden of restraint, and how current responses to backlash should be re-evaluated.
{"title":"Deference, Dignity and ‘Theoretical Crisis’: Justifying ECtHR Rights Between Prudence and Protection","authors":"Corina Heri","doi":"10.1093/hrlr/ngad032","DOIUrl":"https://doi.org/10.1093/hrlr/ngad032","url":null,"abstract":"The present article engages with human rights law’s purported ‘theoretical crisis’, according to which rights—and specifically those in the European Convention on Human Rights (ECHR)—are bereft of a convincing theoretical foundation. In doing so, the article interrogates the use of crisis-oriented language, challenging the very idea of a ‘theoretical crisis’ of rights. Identifying the tension between judicial activism and judicial deference as the source of the crisis narrative, this piece engages with the theoretical foundations of ECHR rights, rejecting binary opposition between opposing moral and political accounts of these rights. It presents an alternative account by framing human rights as capable of combining convincing moral foundations with institutional and political realities. This means melding principle and dynamism, and using moral values to interrogate a human rights law that remains indivisible from its institutional backdrop. Under this account, both the Court’s tools of deference, especially its European consensus doctrine, and the objection of rights inflationism must be subjected to scrutiny. This article straddles theory and practice to allow for a fresh perspective concerning the justification of rights, what is at stake, who bears the burden of restraint, and how current responses to backlash should be re-evaluated.","PeriodicalId":46556,"journal":{"name":"Human Rights Law Review","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2023-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138517713","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}
This article examines cases of conflicting decisions between the ECHR and State Courts. I argue for ‘discordant adjudicative parity.’ According to discordant adjudicative parity, there are compelling non-instrumental reasons for having both international adjudicative institutions and state adjudicative institutions that can make binding, conflicting decisions. Binding decisions by international adjudicative institutions embody the understanding that human rights are duties rather than decisions that are voluntarily undertaken. State Courts facilitate deliberative engagement on the part of citizens as, ultimately, the citizens are in charge of States’ courts. I use this analysis to justify the principle of subsidiarity in European law.
{"title":"The Tension between the National and ECHR Human Rights Adjudication: A Normative Account","authors":"Alon Harel","doi":"10.1093/hrlr/ngad033","DOIUrl":"https://doi.org/10.1093/hrlr/ngad033","url":null,"abstract":"This article examines cases of conflicting decisions between the ECHR and State Courts. I argue for ‘discordant adjudicative parity.’ According to discordant adjudicative parity, there are compelling non-instrumental reasons for having both international adjudicative institutions and state adjudicative institutions that can make binding, conflicting decisions. Binding decisions by international adjudicative institutions embody the understanding that human rights are duties rather than decisions that are voluntarily undertaken. State Courts facilitate deliberative engagement on the part of citizens as, ultimately, the citizens are in charge of States’ courts. I use this analysis to justify the principle of subsidiarity in European law.","PeriodicalId":46556,"journal":{"name":"Human Rights Law Review","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2023-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138517715","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}
{"title":"Tackling Torture: Prevention in Practice","authors":"Ergun Cakal","doi":"10.1093/hrlr/ngad042","DOIUrl":"https://doi.org/10.1093/hrlr/ngad042","url":null,"abstract":"","PeriodicalId":46556,"journal":{"name":"Human Rights Law Review","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2023-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139195746","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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