The question of whether the monitoring bodies have competence concerning reservations is at the centre of the discussion of reservations to human rights treaties that has occupied many international legal scholars over the last few decades. The Istanbul Convention’s treaty monitoring body, GREVIO, is the only human rights treaty monitoring body with a direct competence concerning reservations. However, as practice to date shows, it does not make much use of this power. This is a big disappointment considering all the efforts of other bodies in the past and the doctrinal positions of various scholars. The main aims of this article are threefold to: present GREVIO’s practice to date concerning reservations, provide a brief historical overview of how other human rights treaty bodies have approached their role concerning reservations, and finally, attempt to explain why GREVIO has abandoned a more proactive position on reservations.
{"title":"Reservations to the Istanbul Convention and the Role of GREVIO: A Call for New Approach","authors":"Wojciech Burek","doi":"10.1093/hrlr/ngac030","DOIUrl":"https://doi.org/10.1093/hrlr/ngac030","url":null,"abstract":"The question of whether the monitoring bodies have competence concerning reservations is at the centre of the discussion of reservations to human rights treaties that has occupied many international legal scholars over the last few decades. The Istanbul Convention’s treaty monitoring body, GREVIO, is the only human rights treaty monitoring body with a direct competence concerning reservations. However, as practice to date shows, it does not make much use of this power. This is a big disappointment considering all the efforts of other bodies in the past and the doctrinal positions of various scholars. The main aims of this article are threefold to: present GREVIO’s practice to date concerning reservations, provide a brief historical overview of how other human rights treaty bodies have approached their role concerning reservations, and finally, attempt to explain why GREVIO has abandoned a more proactive position on reservations.","PeriodicalId":46556,"journal":{"name":"Human Rights Law Review","volume":"125 1","pages":""},"PeriodicalIF":1.5,"publicationDate":"2022-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138516572","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":"Patents, Human Rights, and Access to Medicines. By Emmanuel Kolawole Oke. (Cambridge University Press, 2022, 175 pp) Hardback, GBP 95, ISBN 9781108472104.","authors":"P. Sean Morris","doi":"10.1093/hrlr/ngac029","DOIUrl":"https://doi.org/10.1093/hrlr/ngac029","url":null,"abstract":"","PeriodicalId":46556,"journal":{"name":"Human Rights Law Review","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2022-09-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47203318","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":"Correction to: Lisa McIntosh Sundstrom, Valerie Sperling, and Melike Sayoglu, Courting Gender Justice: Russia, Turkey, and the European Court of Human Rights (Oxford University Press, 2019, 296pp, £61.00) ISBN: 9780190932831","authors":"","doi":"10.1093/hrlr/ngac031","DOIUrl":"https://doi.org/10.1093/hrlr/ngac031","url":null,"abstract":"","PeriodicalId":46556,"journal":{"name":"Human Rights Law Review","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2022-09-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48850534","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 European Court of Human Rights (ECtHR) jurisprudence concerning free elections and identifies relevant approaches that can be applied to electoral disinformation. The relationship between disinformation and freedom of expression has attracted considerable academic scrutiny in recent years. However, surprisingly little attention has been given to the right to free elections. This article addresses this gap by identifying key ECtHR approaches to free elections under Article 3 of Protocol 1 of the ECHR and evaluating the Court’s interpretive reasoning in the disinformation context. Focus is given to cases where the Court has addressed falsified information in the electoral process. Considering the special relationship between freedom of expression and free elections in Strasbourg jurisprudence, focus is also given to the Court’s contemplation of acceptable limitations to freedom of expression under Article 10 of the ECHR in response to deceptive political expression. Mapping the Court’s reasoning in key decisions, this article identifies informed democratic engagement as a crucial requirement that permeates the Court’s approach to elections. Considering the importance of democracy in the Court’s reasoning, this article argues that the Court should be more proactive in elucidating key standards for Contracting Parties to make democracies more resilient to electoral disinformation.
{"title":"Free and Informed Elections? Disinformation and Democratic Elections Under Article 3 of Protocol 1 of the ECHR","authors":"E. Shattock","doi":"10.1093/hrlr/ngac023","DOIUrl":"https://doi.org/10.1093/hrlr/ngac023","url":null,"abstract":"\u0000 This article examines European Court of Human Rights (ECtHR) jurisprudence concerning free elections and identifies relevant approaches that can be applied to electoral disinformation. The relationship between disinformation and freedom of expression has attracted considerable academic scrutiny in recent years. However, surprisingly little attention has been given to the right to free elections. This article addresses this gap by identifying key ECtHR approaches to free elections under Article 3 of Protocol 1 of the ECHR and evaluating the Court’s interpretive reasoning in the disinformation context. Focus is given to cases where the Court has addressed falsified information in the electoral process. Considering the special relationship between freedom of expression and free elections in Strasbourg jurisprudence, focus is also given to the Court’s contemplation of acceptable limitations to freedom of expression under Article 10 of the ECHR in response to deceptive political expression. Mapping the Court’s reasoning in key decisions, this article identifies informed democratic engagement as a crucial requirement that permeates the Court’s approach to elections. Considering the importance of democracy in the Court’s reasoning, this article argues that the Court should be more proactive in elucidating key standards for Contracting Parties to make democracies more resilient to electoral disinformation.","PeriodicalId":46556,"journal":{"name":"Human Rights Law Review","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2022-09-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47240901","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 the concept of human dignity is absent from the text of the European Convention on Human Rights, it is mentioned in more than 2100 judgments of the European Court of Human Rights. The judges at the Court have used dignity to develop the scope of Convention rights, but also to signal to respondent states just how serious a violation is and to nudge them toward better compliance. However, these strategies reach dead ends when the Court is faced with government submissions that are based on a conception of dignity that is different from the notion of human dignity relied on by the Court. Through empirical analysis and by focusing on Russia, the country against which the term dignity is used most frequently, the paper maps out situations of conceptual contestation and overlap. We reveal how the Court strategically uses mirroring, substitutes dignity for other Convention values, or altogether avoids confrontation. In such situations, the Court’s use (and non-use) of dignity becomes less about persuading states to comply with the Convention and more about preserving its authority and managing its relationship with states.
{"title":"Language and Persuasion: Human Dignity at the European Court of Human Rights","authors":"Veronika Fikfak, Lora Izvorova","doi":"10.1093/hrlr/ngac018","DOIUrl":"https://doi.org/10.1093/hrlr/ngac018","url":null,"abstract":"Although the concept of human dignity is absent from the text of the European Convention on Human Rights, it is mentioned in more than 2100 judgments of the European Court of Human Rights. The judges at the Court have used dignity to develop the scope of Convention rights, but also to signal to respondent states just how serious a violation is and to nudge them toward better compliance. However, these strategies reach dead ends when the Court is faced with government submissions that are based on a conception of dignity that is different from the notion of human dignity relied on by the Court. Through empirical analysis and by focusing on Russia, the country against which the term dignity is used most frequently, the paper maps out situations of conceptual contestation and overlap. We reveal how the Court strategically uses mirroring, substitutes dignity for other Convention values, or altogether avoids confrontation. In such situations, the Court’s use (and non-use) of dignity becomes less about persuading states to comply with the Convention and more about preserving its authority and managing its relationship with states.","PeriodicalId":46556,"journal":{"name":"Human Rights Law Review","volume":"25 1","pages":""},"PeriodicalIF":1.5,"publicationDate":"2022-08-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138516576","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 cessation of violent conflict offers crucial opportunities to increase the likelihood that children’s rights are respected, protected and realized in the post-conflict state. Peace processes—which include peace negotiations, peace agreement(s) and the implementation of peace agreement provisions—can be central to the realization of this objective. This article examines the concluding observations of the Committee on the Rights of the Child through the lens of process-based performance. The objective is to demonstrate contributions that the Committee can make to advancing children’s rights at different stages of a peace process, often in combination with other actors and mechanisms seeking to do the same. After identifying some of the challenges associated with translating this potential into practice, suggestions are made to help bridge the chasm between potential and practice.
{"title":"Advancing Children’s Rights in Peace Processes: The Role of the Committee on the Rights of the Child","authors":"Seán Molloy","doi":"10.1093/hrlr/ngac022","DOIUrl":"https://doi.org/10.1093/hrlr/ngac022","url":null,"abstract":"\u0000 The cessation of violent conflict offers crucial opportunities to increase the likelihood that children’s rights are respected, protected and realized in the post-conflict state. Peace processes—which include peace negotiations, peace agreement(s) and the implementation of peace agreement provisions—can be central to the realization of this objective. This article examines the concluding observations of the Committee on the Rights of the Child through the lens of process-based performance. The objective is to demonstrate contributions that the Committee can make to advancing children’s rights at different stages of a peace process, often in combination with other actors and mechanisms seeking to do the same. After identifying some of the challenges associated with translating this potential into practice, suggestions are made to help bridge the chasm between potential and practice.","PeriodicalId":46556,"journal":{"name":"Human Rights Law Review","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2022-06-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44422269","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 considers the extent to which human rights mechanisms can ameliorate intersex rights at a sub-national, or medico-local, level. It engages with both intersex activism and the academy where the United Nations (UN) has become understood as a key mechanism through which to challenge day-to-day practices of healthcare practitioners and bring an end to nontherapeutic surgical and hormonal interventions on intersex infants and children. Using the UK as an example, this article examines how and why the UN’s engagement with intersex has had little effect on the medical regulation of intersex people. To do so, the article draws on legal geography to examine how scale prevents the UN from having a clear and lasting impact on domestic issues – particularly those in healthcare settings. The different ways in which intersex bodies are recognised and regulated at different scales, coupled with the UN’s inability to form dialogue with the institutions of the state, such as the healthcare profession, are problematic barriers to challenge practice at the medico-local scale.
{"title":"Intersex Activism, Medical Power/Knowledge and the Scalar Limitations of the United Nations","authors":"Fae Garland, K. Lalor, Mitchell Travis","doi":"10.1093/hrlr/ngac020","DOIUrl":"https://doi.org/10.1093/hrlr/ngac020","url":null,"abstract":"\u0000 This article considers the extent to which human rights mechanisms can ameliorate intersex rights at a sub-national, or medico-local, level. It engages with both intersex activism and the academy where the United Nations (UN) has become understood as a key mechanism through which to challenge day-to-day practices of healthcare practitioners and bring an end to nontherapeutic surgical and hormonal interventions on intersex infants and children. Using the UK as an example, this article examines how and why the UN’s engagement with intersex has had little effect on the medical regulation of intersex people. To do so, the article draws on legal geography to examine how scale prevents the UN from having a clear and lasting impact on domestic issues – particularly those in healthcare settings. The different ways in which intersex bodies are recognised and regulated at different scales, coupled with the UN’s inability to form dialogue with the institutions of the state, such as the healthcare profession, are problematic barriers to challenge practice at the medico-local scale.","PeriodicalId":46556,"journal":{"name":"Human Rights Law Review","volume":"1 1","pages":""},"PeriodicalIF":1.5,"publicationDate":"2022-06-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41985716","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}
Since 2013, the Committee on Economic, Social and Cultural Rights can examine individual communications under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR). This opens up the possibility to interpret Covenant provisions in a thorough manner. With regard to forced evictions and the right to housing under Article 11 ICESCR, one can discern a fast-developing approach concerning the proportionality analysis of evictions, entailing the establishment of specific criteria that may guide such analysis. This paper seeks to delineate these developments and will also shed light on possible general trends on the topic of limitations within the Committee’s emerging jurisprudence. In doing so, the paper will address if, and how, the developing proportionality analysis under the individual complaints procedure takes into consideration multi-discriminatory dimensions of State measures and how it specifically relates to or incorporates other ICESCR-concepts, such as minimum core obligations or the reasonableness review under Article 8(4) OP ICESCR.
{"title":"Tracing the Development of the Proportionality Analysis in Relation to Forced Evictions under the ICESCR","authors":"Nils-Hendrik Grohmann","doi":"10.1093/hrlr/ngac025","DOIUrl":"https://doi.org/10.1093/hrlr/ngac025","url":null,"abstract":"\u0000 Since 2013, the Committee on Economic, Social and Cultural Rights can examine individual communications under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR). This opens up the possibility to interpret Covenant provisions in a thorough manner. With regard to forced evictions and the right to housing under Article 11 ICESCR, one can discern a fast-developing approach concerning the proportionality analysis of evictions, entailing the establishment of specific criteria that may guide such analysis. This paper seeks to delineate these developments and will also shed light on possible general trends on the topic of limitations within the Committee’s emerging jurisprudence. In doing so, the paper will address if, and how, the developing proportionality analysis under the individual complaints procedure takes into consideration multi-discriminatory dimensions of State measures and how it specifically relates to or incorporates other ICESCR-concepts, such as minimum core obligations or the reasonableness review under Article 8(4) OP ICESCR.","PeriodicalId":46556,"journal":{"name":"Human Rights Law Review","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2022-06-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46153906","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 right to legal capacity (Article 12) is the most contested realization of the UN Convention on the Rights of Persons with Disabilities (CRPD). If implemented, it would revolutionize the position of persons with psychosocial disabilities, intellectual disabilities and other cognitive conditions. Yet its implementation has been hindered by conceptual misunderstandings and a lack of distinction between the key questions in the debate. This contribution first demonstrates that advocates and opponents apply ‘substitute decision-making’ and ‘legal capacity’ differently, leading to different expectations. Second, it substantiates that once all the concepts are understood correctly, three distinct questions underpin the interpretation of Article 12 CRPD: (1) What makes a person’s will reliable? (2) What is good support? and (3) How can such a reliable will be diverged from, given other interests? Instead of giving the answers, this contribution brings consistency to the debate and proposes a pathways for a future approach to legal capacity.
{"title":"The Universal Right to Legal Capacity—Clearing the Haze","authors":"T. Opgenhaffen","doi":"10.1093/hrlr/ngac021","DOIUrl":"https://doi.org/10.1093/hrlr/ngac021","url":null,"abstract":"\u0000 The right to legal capacity (Article 12) is the most contested realization of the UN Convention on the Rights of Persons with Disabilities (CRPD). If implemented, it would revolutionize the position of persons with psychosocial disabilities, intellectual disabilities and other cognitive conditions. Yet its implementation has been hindered by conceptual misunderstandings and a lack of distinction between the key questions in the debate. This contribution first demonstrates that advocates and opponents apply ‘substitute decision-making’ and ‘legal capacity’ differently, leading to different expectations. Second, it substantiates that once all the concepts are understood correctly, three distinct questions underpin the interpretation of Article 12 CRPD: (1) What makes a person’s will reliable? (2) What is good support? and (3) How can such a reliable will be diverged from, given other interests? Instead of giving the answers, this contribution brings consistency to the debate and proposes a pathways for a future approach to legal capacity.","PeriodicalId":46556,"journal":{"name":"Human Rights Law Review","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2022-06-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46308722","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 analyses the Indian caste-based occupation of sanitation work undertaken without protective equipment—manual scavenging. The current legal framework on manual scavenging in India suggests that demolishing dry latrines will abolish manual scavenging. This approach overlooks the coercive nature of the caste system and is therefore an inadequate solution for abolishing manual scavenging. Hence, this article asks ‘how can the legal system provide better legal protections to manual scavengers when the caste system that underpins the practice is deeply entrenched in Indian society?’ The article examines one possible answer—taking dignity more seriously. It demonstrates that manual scavenging is a dignitarian problem by mapping the main dignitarian harms that arise from it, such as humiliation, loss of autonomy and tensions with group dignity. Ultimately, it proposes using dignity in line with the jurisprudence of the UN Human Rights Committee to provide more comprehensive legal protections for manual scavengers.
{"title":"Taking Dignity Seriously to Protect Manual Scavengers in India: Lessons from the UN Human Rights Committee","authors":"Aishani Gupta","doi":"10.1093/hrlr/ngac019","DOIUrl":"https://doi.org/10.1093/hrlr/ngac019","url":null,"abstract":"\u0000 This article analyses the Indian caste-based occupation of sanitation work undertaken without protective equipment—manual scavenging. The current legal framework on manual scavenging in India suggests that demolishing dry latrines will abolish manual scavenging. This approach overlooks the coercive nature of the caste system and is therefore an inadequate solution for abolishing manual scavenging. Hence, this article asks ‘how can the legal system provide better legal protections to manual scavengers when the caste system that underpins the practice is deeply entrenched in Indian society?’ The article examines one possible answer—taking dignity more seriously. It demonstrates that manual scavenging is a dignitarian problem by mapping the main dignitarian harms that arise from it, such as humiliation, loss of autonomy and tensions with group dignity. Ultimately, it proposes using dignity in line with the jurisprudence of the UN Human Rights Committee to provide more comprehensive legal protections for manual scavengers.","PeriodicalId":46556,"journal":{"name":"Human Rights Law Review","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2022-06-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46336842","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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