Positive obligations under the European Convention on Human Rights can be framed with different levels of concreteness. The level chosen is essential for understanding the analytical distinction between the existence of an obligation and its breach. The level of concreteness is an important conceptual framework because it has an impact even on the possibility of making an assessment as to whether the State has breached the obligation, and on how this assessment is performed in the reasoning. Kurt v Austria is used to illustrate how positive obligations can be framed both in more abstract and concrete terms, and how the reasoning mediates between the two. The more it tilts towards a concrete formulation of the obligation, the more the Court appears to assume the role of a rule-maker, which is in tension with the principle that States have discretion as to the concrete measures to fulfill their positive obligations.
{"title":"Framing Positive Obligations under the European Convention on Human Rights Law: Mediating between the Abstract and the Concrete","authors":"V. Stoyanova","doi":"10.1093/hrlr/ngad010","DOIUrl":"https://doi.org/10.1093/hrlr/ngad010","url":null,"abstract":"\u0000 Positive obligations under the European Convention on Human Rights can be framed with different levels of concreteness. The level chosen is essential for understanding the analytical distinction between the existence of an obligation and its breach. The level of concreteness is an important conceptual framework because it has an impact even on the possibility of making an assessment as to whether the State has breached the obligation, and on how this assessment is performed in the reasoning. Kurt v Austria is used to illustrate how positive obligations can be framed both in more abstract and concrete terms, and how the reasoning mediates between the two. The more it tilts towards a concrete formulation of the obligation, the more the Court appears to assume the role of a rule-maker, which is in tension with the principle that States have discretion as to the concrete measures to fulfill their positive obligations.","PeriodicalId":46556,"journal":{"name":"Human Rights Law Review","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48146910","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 paper analyses the human right to science (RtS) in relation to data science (DS) and its applications, particularly, data monetization. It advances an approach that balances three aspects of RtS, namely, protection from harmful science, benefit-sharing and participation in science and derives three corresponding sets of state duties. First, RtS implies the duty to end data monetization in so far as it entails practices harmful to human rights, including unlawful interference with privacy. Second, while data monetization exists, RtS entails the duty to distribute monetary benefits through an RtS-based universal basic income (UBI). Third, RtS entails the duty to facilitate ordinary people’s participation in DS and prioritize non-profit pro-social uses of DS as in citizen or community DS. The proposed RtS analysis of DS engages policy responses to artificial intelligence (AI) and material inequality, namely, AI regulation, monetary benefits from data, UBI and the ‘data for good’ movement. No new data were generated or analysed in support of this research.
{"title":"Ensuring Data Science and Its Applications Benefit Humanity: Data Monetization and the Right to Science","authors":"Jayson Lamchek","doi":"10.1093/hrlr/ngad018","DOIUrl":"https://doi.org/10.1093/hrlr/ngad018","url":null,"abstract":"\u0000 This paper analyses the human right to science (RtS) in relation to data science (DS) and its applications, particularly, data monetization. It advances an approach that balances three aspects of RtS, namely, protection from harmful science, benefit-sharing and participation in science and derives three corresponding sets of state duties. First, RtS implies the duty to end data monetization in so far as it entails practices harmful to human rights, including unlawful interference with privacy. Second, while data monetization exists, RtS entails the duty to distribute monetary benefits through an RtS-based universal basic income (UBI). Third, RtS entails the duty to facilitate ordinary people’s participation in DS and prioritize non-profit pro-social uses of DS as in citizen or community DS. The proposed RtS analysis of DS engages policy responses to artificial intelligence (AI) and material inequality, namely, AI regulation, monetary benefits from data, UBI and the ‘data for good’ movement. No new data were generated or analysed in support of this research.","PeriodicalId":46556,"journal":{"name":"Human Rights Law Review","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41473853","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 argues that international human rights (quasi-)adjudicatory institutions should do better in considering the best interests of the child and freedom of religion in cases involving human rights aspects of alternative care and adoption. The European Court of Human Rights, particularly, has been using obscure and contradictory standards, which ultimately do not privilege the child’s best interests in matters affecting them directly. Recent Grand Chamber jurisprudence instead puts parents’ interests above the child’s. A child-centred approach where children are not objectified, but treated as autonomous, rights-bearing, legal persons, with independent interests that may override those of other stakeholders is needed. This article explores general international and European rules governing children’s religious rights in alternative care and adoption to expose the Court’s pitfalls in centring children in decision-making involving religion particularly. It generally promotes adoption of a child-centred approach in international human rights courts, and particularly highlights existing hurdles in such approach where the decision-making involves conflicting interests concerning religion.
{"title":"Children’s Religious Identity in Alternative Care and Adoption: The Need to Recentre the Child’s Best Interest in International Human Rights Adjudication","authors":"Ayla do Vale Alves","doi":"10.1093/hrlr/ngad002","DOIUrl":"https://doi.org/10.1093/hrlr/ngad002","url":null,"abstract":"\u0000 This article argues that international human rights (quasi-)adjudicatory institutions should do better in considering the best interests of the child and freedom of religion in cases involving human rights aspects of alternative care and adoption. The European Court of Human Rights, particularly, has been using obscure and contradictory standards, which ultimately do not privilege the child’s best interests in matters affecting them directly. Recent Grand Chamber jurisprudence instead puts parents’ interests above the child’s. A child-centred approach where children are not objectified, but treated as autonomous, rights-bearing, legal persons, with independent interests that may override those of other stakeholders is needed. This article explores general international and European rules governing children’s religious rights in alternative care and adoption to expose the Court’s pitfalls in centring children in decision-making involving religion particularly. It generally promotes adoption of a child-centred approach in international human rights courts, and particularly highlights existing hurdles in such approach where the decision-making involves conflicting interests concerning religion.","PeriodicalId":46556,"journal":{"name":"Human Rights Law Review","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2023-03-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45540210","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 identifies a troubling omission on the part of the European Court of Human Rights, when it considers cases involving the Hague Convention on the Civil Aspects of International Child Abduction. Such cases often involve one parent, who has abducted the child, alleging that their actions were necessary to protect themselves or the child from violence by the other parent. The Court has avoided considering arguments based on Article 3 of the European Convention on Human Rights in such cases, despite the now established relevance of that Article to the risks of family violence. A change of course is needed, in order to articulate clear principles for the ECtHR’s own Hague cases, and reinforce the absoluteness of Article 3 protection elsewhere.
{"title":"Evasive Manoeuvres: Strasbourg, the Hague Child Abduction Convention and the Absolute Prohibition on Ill-Treatment","authors":"E. Robinson","doi":"10.1093/hrlr/ngad011","DOIUrl":"https://doi.org/10.1093/hrlr/ngad011","url":null,"abstract":"\u0000 This article identifies a troubling omission on the part of the European Court of Human Rights, when it considers cases involving the Hague Convention on the Civil Aspects of International Child Abduction. Such cases often involve one parent, who has abducted the child, alleging that their actions were necessary to protect themselves or the child from violence by the other parent. The Court has avoided considering arguments based on Article 3 of the European Convention on Human Rights in such cases, despite the now established relevance of that Article to the risks of family violence. A change of course is needed, in order to articulate clear principles for the ECtHR’s own Hague cases, and reinforce the absoluteness of Article 3 protection elsewhere.","PeriodicalId":46556,"journal":{"name":"Human Rights Law Review","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2023-03-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46702745","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 Universal Declaration of Human Rights (UDHR) is familiar to international human rights lawyers worldwide. Celebrations of its adoption have included commemorative sessions held in the United Nations (UN) General Assembly during milestone anniversary years. Scholarship has not yet considered these sessions together, exploring what may be learned about the UDHR in this UN body as a result. This is the work that the present article undertakes. It finds that, when considered collectively, anniversary days in the General Assembly assist in creating a picture of the UDHR as a legal text in time. This reveals how commemorative activity has engaged with the UDHR in fluid ways and also in ways that stress or demonstrate aspects of continuity. From this analysis, it is possible to deepen understanding of engagements with the UDHR throughout the twentieth and twenty-first centuries, and anniversary days emerge as an under-utilized resource for international human rights lawyers.
{"title":"‘If Only for a Day’: The Universal Declaration of Human Rights, Anniversary Commemoration and International Human Rights Law","authors":"Kathryn McNeilly","doi":"10.1093/hrlr/ngad003","DOIUrl":"https://doi.org/10.1093/hrlr/ngad003","url":null,"abstract":"\u0000 The Universal Declaration of Human Rights (UDHR) is familiar to international human rights lawyers worldwide. Celebrations of its adoption have included commemorative sessions held in the United Nations (UN) General Assembly during milestone anniversary years. Scholarship has not yet considered these sessions together, exploring what may be learned about the UDHR in this UN body as a result. This is the work that the present article undertakes. It finds that, when considered collectively, anniversary days in the General Assembly assist in creating a picture of the UDHR as a legal text in time. This reveals how commemorative activity has engaged with the UDHR in fluid ways and also in ways that stress or demonstrate aspects of continuity. From this analysis, it is possible to deepen understanding of engagements with the UDHR throughout the twentieth and twenty-first centuries, and anniversary days emerge as an under-utilized resource for international human rights lawyers.","PeriodicalId":46556,"journal":{"name":"Human Rights Law Review","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2023-03-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46039733","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 State duty to prevent preventable prisoner deaths is easy to state and substantiate. Yet prisoner death rates are increasing around the world and are often much higher than those in the community. To understand why this is happening, the findings and recommendations of the country reports of international oversight bodies and thematic reports from international rapporteurs are synthesised with contemporary rights-informed penal standards, multi-disciplinary scholarship, non-governmental organization reports and media extracts. On the basis of this knowledge, this reform-oriented article explores the impact of structural, societal and environmental factors on natural and violent prisoner deaths and how these factors operate cumulatively to create dangerous and life-threatening custodial environments. The paper makes recommendations to reaffirm and enumerate the positive obligation to protect prisoners’ lives, develop specialist standards, adopt a broader approach to prison oversight and create a specific United Nations mandate on prisoner rights.
{"title":"Prisoner Lives Cut Short: The Need to Address Structural, Societal and Environmental Factors to Reduce Preventable Prisoner Deaths","authors":"Róisín Mulgrew","doi":"10.1093/hrlr/ngad006","DOIUrl":"https://doi.org/10.1093/hrlr/ngad006","url":null,"abstract":"\u0000 The State duty to prevent preventable prisoner deaths is easy to state and substantiate. Yet prisoner death rates are increasing around the world and are often much higher than those in the community. To understand why this is happening, the findings and recommendations of the country reports of international oversight bodies and thematic reports from international rapporteurs are synthesised with contemporary rights-informed penal standards, multi-disciplinary scholarship, non-governmental organization reports and media extracts. On the basis of this knowledge, this reform-oriented article explores the impact of structural, societal and environmental factors on natural and violent prisoner deaths and how these factors operate cumulatively to create dangerous and life-threatening custodial environments. The paper makes recommendations to reaffirm and enumerate the positive obligation to protect prisoners’ lives, develop specialist standards, adopt a broader approach to prison oversight and create a specific United Nations mandate on prisoner rights.","PeriodicalId":46556,"journal":{"name":"Human Rights Law Review","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2023-03-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42341307","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}
In 2016, the UN General Assembly adopted the Declaration on the Right to Peace. This article examines whether the implementation of the Declaration can likely lead to the realization of the right to peace in a way that elicits sustainable peace within societies. Thus, diverging from earlier studies, it provides conceptual and practical critiques of the Declaration to evaluate the viability of the right. First, following an in-depth analysis of the Declaration, this article draws on peace and conflict studies to explain what sustainable intra-state peace entails. Second, it establishes that the liberal and positive elements of peace and the frameworks prescribed in the Declaration are inadequate to address horizontal inequalities across all relevant identity groups qua groups, which is required to elicit sustainable peace. Third, it proposes guiding principles to direct implementing institutions, particularly UN bodies and frameworks, towards diagnosing and tackling inequalities across collectivities, thereby complementing the prevailing individualistic human rights approach.
{"title":"The 2016 UN General Assembly Declaration on the Right to Peace: A Step towards Sustainable Positive Peace within Societies?","authors":"T. Turan","doi":"10.1093/hrlr/ngad007","DOIUrl":"https://doi.org/10.1093/hrlr/ngad007","url":null,"abstract":"\u0000 In 2016, the UN General Assembly adopted the Declaration on the Right to Peace. This article examines whether the implementation of the Declaration can likely lead to the realization of the right to peace in a way that elicits sustainable peace within societies. Thus, diverging from earlier studies, it provides conceptual and practical critiques of the Declaration to evaluate the viability of the right. First, following an in-depth analysis of the Declaration, this article draws on peace and conflict studies to explain what sustainable intra-state peace entails. Second, it establishes that the liberal and positive elements of peace and the frameworks prescribed in the Declaration are inadequate to address horizontal inequalities across all relevant identity groups qua groups, which is required to elicit sustainable peace. Third, it proposes guiding principles to direct implementing institutions, particularly UN bodies and frameworks, towards diagnosing and tackling inequalities across collectivities, thereby complementing the prevailing individualistic human rights approach.","PeriodicalId":46556,"journal":{"name":"Human Rights Law Review","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2023-03-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48885783","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 COVID-19 pandemic has drawn public attention to the long-standing issues of social isolation and loneliness of older persons living in residential long-term care (LTC) and has increased awareness of the importance of social participation. This article aims to contribute towards a shift in the understanding of how the United Nations Convention on the Rights of Persons with Disabilities (CRPD) may be applied in aged-care. It argues that the CRPD, in particular Article 19 (Living independently and being included in the community), has considerable potential to protect the right to social participation. It is also argued that changes in LTC settings and support may assist in protecting this right. Furthermore, the participation of older persons in this process and cultural change within LTC provider organizations and the general community is crucial. However, applying the Convention in the aged-care context raises challenges that require further consideration by human rights mechanisms.
{"title":"Protecting the Right to Social Participation of Older Persons in Long-Term Care under Article 19 of the United Nations Convention on the Rights of Persons with Disabilities","authors":"Rachel Morrison-Dayan","doi":"10.1093/hrlr/ngad004","DOIUrl":"https://doi.org/10.1093/hrlr/ngad004","url":null,"abstract":"\u0000 The COVID-19 pandemic has drawn public attention to the long-standing issues of social isolation and loneliness of older persons living in residential long-term care (LTC) and has increased awareness of the importance of social participation. This article aims to contribute towards a shift in the understanding of how the United Nations Convention on the Rights of Persons with Disabilities (CRPD) may be applied in aged-care. It argues that the CRPD, in particular Article 19 (Living independently and being included in the community), has considerable potential to protect the right to social participation. It is also argued that changes in LTC settings and support may assist in protecting this right. Furthermore, the participation of older persons in this process and cultural change within LTC provider organizations and the general community is crucial. However, applying the Convention in the aged-care context raises challenges that require further consideration by human rights mechanisms.","PeriodicalId":46556,"journal":{"name":"Human Rights Law Review","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2023-03-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49472371","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}
Abstract This article examines the enjoyment of the right to liberty of residents of aged care homes, with a particular focus on those living with cognitive disability (most notably, dementia), and the tension between upholding a person’s autonomy and protecting them and others from harm. The analysis approaches this potential tension from two perspectives: firstly, by examining and evaluating different legal conceptions of the right to liberty of the person, and secondly, by examining the conditions and related rights, which enable the enjoyment of the right to liberty by aged care residents living with cognitive disability, including the right to autonomy and the right to long-term quality care. It is argued that a relational approach to autonomy is required, which places the enjoyment of the right to liberty within the broader context of an autonomy-enabling environment. Interrogating what we mean by ‘autonomy’ and ‘care’ may facilitate the enjoyment of the right to liberty for those most vulnerable in residential care.
{"title":"Enabling the Right to Liberty of the Person in Aged Care Homes","authors":"Alison Kesby","doi":"10.1093/hrlr/ngad005","DOIUrl":"https://doi.org/10.1093/hrlr/ngad005","url":null,"abstract":"Abstract This article examines the enjoyment of the right to liberty of residents of aged care homes, with a particular focus on those living with cognitive disability (most notably, dementia), and the tension between upholding a person’s autonomy and protecting them and others from harm. The analysis approaches this potential tension from two perspectives: firstly, by examining and evaluating different legal conceptions of the right to liberty of the person, and secondly, by examining the conditions and related rights, which enable the enjoyment of the right to liberty by aged care residents living with cognitive disability, including the right to autonomy and the right to long-term quality care. It is argued that a relational approach to autonomy is required, which places the enjoyment of the right to liberty within the broader context of an autonomy-enabling environment. Interrogating what we mean by ‘autonomy’ and ‘care’ may facilitate the enjoyment of the right to liberty for those most vulnerable in residential care.","PeriodicalId":46556,"journal":{"name":"Human Rights Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-03-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136156876","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 article deals with three admissibility decisions by the United Nations Committee on the Rights of the Child where it found that it was competent to consider the merits of individual complaints against France submitted by relatives of French children staying in Syrian prison camps. Paving the way for the Committee subsequently to hold that France had violated the United Nations Convention on the Rights of the Child, the decisions are noteworthy for the Committee’s expansive notion of extraterritorial jurisdiction, which also has been adopted in other cases on the same subject, but also beyond. The article highlights two methodological features of the decisions that are closely related, notably their departure from generally accepted principles of treaty interpretation and their alignment with arguments submitted by the third-party interveners. It is argued that these features effectively undercut the authority of the Committee’s practice as source material when subjecting the treaty to legal interpretation.
{"title":"The Committee on the Rights of the Child’s Admissibility Decisions in the ‘Syrian Camps Cases’ against France: a Critique from the Viewpoint of Treaty Interpretation","authors":"M. Emberland","doi":"10.1093/hrlr/ngad008","DOIUrl":"https://doi.org/10.1093/hrlr/ngad008","url":null,"abstract":"\u0000 The article deals with three admissibility decisions by the United Nations Committee on the Rights of the Child where it found that it was competent to consider the merits of individual complaints against France submitted by relatives of French children staying in Syrian prison camps. Paving the way for the Committee subsequently to hold that France had violated the United Nations Convention on the Rights of the Child, the decisions are noteworthy for the Committee’s expansive notion of extraterritorial jurisdiction, which also has been adopted in other cases on the same subject, but also beyond. The article highlights two methodological features of the decisions that are closely related, notably their departure from generally accepted principles of treaty interpretation and their alignment with arguments submitted by the third-party interveners. It is argued that these features effectively undercut the authority of the Committee’s practice as source material when subjecting the treaty to legal interpretation.","PeriodicalId":46556,"journal":{"name":"Human Rights Law Review","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2023-03-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44048271","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}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：