{"title":"Zvezda Vankova, Circular Migration and the Rights of Migrant Workers in Central and Eastern Europe. The EU Promise of a Triple Win Solution (Springer, 2020, xxii +261 pp, Open Access) eBook ISBN 9783030526894 (eBook)","authors":"Diego Acosta","doi":"10.1093/hrlr/ngab024","DOIUrl":"https://doi.org/10.1093/hrlr/ngab024","url":null,"abstract":"","PeriodicalId":46556,"journal":{"name":"Human Rights Law Review","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2021-09-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44004390","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}
Gaetan Cliquennois, Sonja Snacken, Dirk van Zyl Smit
This paper analyses the shortcomings of European suicide prevention policy in places of detention, a topic that has been neglected in the European legal literature. Four interrelated characteristics of the suicide prevention policies developed by the European Court of Human Rights (ECtHR) are responsible for the failures of these policies. First, the risk-based approach relies on individual risk calculations by national detention authorities to the detriment of environmental factors and a holistic approach. Second, there is an unacknowledged tension in the jurisprudence of the ECtHR between the right to life of detainees and the right to life of potential victims of terrorism and other serious crimes. Third, the jurisprudence on state liability, with its individual risk-based approach, has been translated into highly restrictive death avoidance national practices, which infringe human dignity and reinforce detainees’ willingness to commit suicide. Finally, the right to life does not effectively limit the inherent punitiveness of suicide prevention policies.
{"title":"The European Human Rights System and the Right to Life Seen through Suicide Prevention in Places of Detention: Between Risk Management and Punishment","authors":"Gaetan Cliquennois, Sonja Snacken, Dirk van Zyl Smit","doi":"10.1093/hrlr/ngab023","DOIUrl":"https://doi.org/10.1093/hrlr/ngab023","url":null,"abstract":"\u0000 This paper analyses the shortcomings of European suicide prevention policy in places of detention, a topic that has been neglected in the European legal literature. Four interrelated characteristics of the suicide prevention policies developed by the European Court of Human Rights (ECtHR) are responsible for the failures of these policies. First, the risk-based approach relies on individual risk calculations by national detention authorities to the detriment of environmental factors and a holistic approach. Second, there is an unacknowledged tension in the jurisprudence of the ECtHR between the right to life of detainees and the right to life of potential victims of terrorism and other serious crimes. Third, the jurisprudence on state liability, with its individual risk-based approach, has been translated into highly restrictive death avoidance national practices, which infringe human dignity and reinforce detainees’ willingness to commit suicide. Finally, the right to life does not effectively limit the inherent punitiveness of suicide prevention policies.","PeriodicalId":46556,"journal":{"name":"Human Rights Law Review","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2021-09-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44495461","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}
Studies on the Refugee Convention have paid very limited attention to the notion of family and family rights of asylum claimants in connection with asylum claims based on sexual orientation and gender identity (SOGI). Drawing on the notion of ‘legal violence’, this article demonstrates the injurious cumulative effect that a heteronormative, homonormative and Western-centered formulation and implementation of asylum and refugee law has on SOGI claimants when it comes to intimate and family relationships. By relying on a solid body of primary and secondary data, it explores the invisibility of SOGI claimants and refugees’ families and how that invisibility is normalized by European legal frameworks, such as the Dublin (III) Regulation and Family Reunification Directive. To end this ‘legal violence’ and reconnect asylum systems with the lived experiences of SOGI claimants, a principled approach based on human rights and specifically the right to respect for family life is suggested.
{"title":"Legal Violence and (In)Visible Families: How Law Shapes and Erases Family Life in SOGI Asylum in Europe","authors":"Carmelo Danisi, N. Ferreira","doi":"10.1093/hrlr/ngab020","DOIUrl":"https://doi.org/10.1093/hrlr/ngab020","url":null,"abstract":"\u0000 Studies on the Refugee Convention have paid very limited attention to the notion of family and family rights of asylum claimants in connection with asylum claims based on sexual orientation and gender identity (SOGI). Drawing on the notion of ‘legal violence’, this article demonstrates the injurious cumulative effect that a heteronormative, homonormative and Western-centered formulation and implementation of asylum and refugee law has on SOGI claimants when it comes to intimate and family relationships. By relying on a solid body of primary and secondary data, it explores the invisibility of SOGI claimants and refugees’ families and how that invisibility is normalized by European legal frameworks, such as the Dublin (III) Regulation and Family Reunification Directive. To end this ‘legal violence’ and reconnect asylum systems with the lived experiences of SOGI claimants, a principled approach based on human rights and specifically the right to respect for family life is suggested.","PeriodicalId":46556,"journal":{"name":"Human Rights Law Review","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2021-08-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46460640","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 proposes a normative, moral justification for the protection of collective labour rights as aspects of the right to freedom of association under Article 11 European Convention on Human Rights. A justification of this kind has so far been largely absent from the reasoning of the European Court of Human Rights , which has referred more frequently to international labour rights instruments in respect of some of the developments in its case-law on collective labour rights. The article argues that Article 11 should be interpreted also by reference to a particular theoretical account of the right to freedom of association as a moral right, which emphasises the role of freedom of association in enabling individuals to meet on more equal terms the power of those whose decisions affect them, and thus to participate in determining the circumstances of their life. According to this account, certain collective labour rights necessarily derive from the right to freedom of association.
{"title":"Worker Empowerment, Collective Labour Rights and Article 11 of the European Convention on Human Rights","authors":"Kalina Arabadjieva","doi":"10.1093/hrlr/ngab019","DOIUrl":"https://doi.org/10.1093/hrlr/ngab019","url":null,"abstract":"\u0000 This article proposes a normative, moral justification for the protection of collective labour rights as aspects of the right to freedom of association under Article 11 European Convention on Human Rights. A justification of this kind has so far been largely absent from the reasoning of the European Court of Human Rights , which has referred more frequently to international labour rights instruments in respect of some of the developments in its case-law on collective labour rights. The article argues that Article 11 should be interpreted also by reference to a particular theoretical account of the right to freedom of association as a moral right, which emphasises the role of freedom of association in enabling individuals to meet on more equal terms the power of those whose decisions affect them, and thus to participate in determining the circumstances of their life. According to this account, certain collective labour rights necessarily derive from the right to freedom of association.","PeriodicalId":46556,"journal":{"name":"Human Rights Law Review","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2021-08-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43379069","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 European Social Charter has recently received increased attention due to the evolution of its monitoring mechanism and the need to address a multitude of contemporary challenges to socio-economic rights. Although the treaty’s preamble has played a crucial role in the interpretation of substantive provisions and in shaping state obligations, little attention has been paid to the way in which the preamble has defined the fundamental lines of the ‘jurisprudence’ of the Charter’s monitoring body. The European Committee of Social Rights has deduced from the Charter’s preamble several important general principles for the protection of socio-economic rights, on which it grounds its interpretation. This article analyses these principles and evaluates their effects in the relevant practice. The findings suggest that the Charter’s preamble serves different purposes and performs multiple functions in international law, thus challenging the common assumption that human rights treaty preambles are empty phrases of a merely ceremonial nature.
{"title":"Revisiting the Preamble of the European Social Charter: Paper Tiger or Blessing in Disguise?","authors":"Nikolaos A Papadopoulos","doi":"10.1093/hrlr/ngab021","DOIUrl":"https://doi.org/10.1093/hrlr/ngab021","url":null,"abstract":"\u0000 The European Social Charter has recently received increased attention due to the evolution of its monitoring mechanism and the need to address a multitude of contemporary challenges to socio-economic rights. Although the treaty’s preamble has played a crucial role in the interpretation of substantive provisions and in shaping state obligations, little attention has been paid to the way in which the preamble has defined the fundamental lines of the ‘jurisprudence’ of the Charter’s monitoring body. The European Committee of Social Rights has deduced from the Charter’s preamble several important general principles for the protection of socio-economic rights, on which it grounds its interpretation. This article analyses these principles and evaluates their effects in the relevant practice. The findings suggest that the Charter’s preamble serves different purposes and performs multiple functions in international law, thus challenging the common assumption that human rights treaty preambles are empty phrases of a merely ceremonial nature.","PeriodicalId":46556,"journal":{"name":"Human Rights Law Review","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2021-08-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43022202","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 the truth about gross human rights violations is gradually becoming more firmly entrenched in international human rights law. However, the content and contours of the right to the truth are not without controversy. Some of the most pressing issues that have arisen are the extent of society’s right to the truth, the scope of the truth that it pursues (fact-finding or broader historical truth) and the relationship between truth seeking and official acknowledgment. This article turns to multidisciplinary research about truth seeking and memory with regard to gross human rights violations, which provides rich insights into the role of truth in the aftermath of mass atrocities that can shed light on the possible implications of the right to the truth. It thus provides a critical reflection on the right to the truth, in order to consider how it could perform a valuable function.
{"title":"A Critical Reflection on the Right to the Truth about Gross Human Rights Violations","authors":"M. V. Noorloos","doi":"10.1093/HRLR/NGAB018","DOIUrl":"https://doi.org/10.1093/HRLR/NGAB018","url":null,"abstract":"\u0000 The right to the truth about gross human rights violations is gradually becoming more firmly entrenched in international human rights law. However, the content and contours of the right to the truth are not without controversy. Some of the most pressing issues that have arisen are the extent of society’s right to the truth, the scope of the truth that it pursues (fact-finding or broader historical truth) and the relationship between truth seeking and official acknowledgment.\u0000 This article turns to multidisciplinary research about truth seeking and memory with regard to gross human rights violations, which provides rich insights into the role of truth in the aftermath of mass atrocities that can shed light on the possible implications of the right to the truth. It thus provides a critical reflection on the right to the truth, in order to consider how it could perform a valuable function.","PeriodicalId":46556,"journal":{"name":"Human Rights Law Review","volume":"1 1","pages":""},"PeriodicalIF":1.5,"publicationDate":"2021-07-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41654048","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 past decade has seen increased scholarly attention on the practice and latent potential of the United Nations General Assembly (‘Assembly’) to secure accountability for atrocity crimes. This increased focus has arisen primarily due to growing frustration over permanent member deadlock in the Security Council in the face of documented atrocities. One aspect of this nascent research agenda yet to be analysed is the invocation of the crime of genocide in Assembly resolutions and practice. Studies have shown the Security Council to have applied the genocide label selectively and only where aligned with the permanent members’ interests. Can the same be said about the Assembly? This article tracks the use of the genocide norm in Assembly resolutions, revealing two major functions: prescriptive and quasi-judicial. It notes that Resolution 96(I) (1946) has had a pervasive influence on the development of the crime of genocide. Still, later attempts in the Assembly to develop the genocide definition have enjoyed less success. Although the Assembly has been beset with political selectivity in the use of the genocide label, the rise of commissions of inquiry in UN practice can usefully augment a closer dialogue between their outputs and Assembly resolutions, as recent resolutions concerning alleged crimes against the Rohingya show.
{"title":"The Crime of Genocide in General Assembly Resolutions: Legal Foundations and Effects","authors":"M. Ramsden","doi":"10.1093/hrlr/ngab003","DOIUrl":"https://doi.org/10.1093/hrlr/ngab003","url":null,"abstract":"\u0000 The past decade has seen increased scholarly attention on the practice and latent potential of the United Nations General Assembly (‘Assembly’) to secure accountability for atrocity crimes. This increased focus has arisen primarily due to growing frustration over permanent member deadlock in the Security Council in the face of documented atrocities. One aspect of this nascent research agenda yet to be analysed is the invocation of the crime of genocide in Assembly resolutions and practice. Studies have shown the Security Council to have applied the genocide label selectively and only where aligned with the permanent members’ interests. Can the same be said about the Assembly? This article tracks the use of the genocide norm in Assembly resolutions, revealing two major functions: prescriptive and quasi-judicial. It notes that Resolution 96(I) (1946) has had a pervasive influence on the development of the crime of genocide. Still, later attempts in the Assembly to develop the genocide definition have enjoyed less success. Although the Assembly has been beset with political selectivity in the use of the genocide label, the rise of commissions of inquiry in UN practice can usefully augment a closer dialogue between their outputs and Assembly resolutions, as recent resolutions concerning alleged crimes against the Rohingya show.","PeriodicalId":46556,"journal":{"name":"Human Rights Law Review","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/hrlr/ngab003","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46312334","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 the dual responsibility of state authorities to repair past abuses and guarantee economic and social rights after episodes of widespread violence according to the jurisprudence of African human rights bodies. Two alternative frameworks underlying the practice of African bodies and human rights law more broadly are discussed. The first portrays the state as a threat to the individual, responsible for redressing the consequences of violations in breach of duties to respect and protect rights. The second understands the state as an active guarantor of rights in the aftermath of widespread abuses, responsible for improving the well-being of people affected and not affected by violence. In light of the possibilities and limitations that arise from both approaches in the African context, the article advocates the second.
{"title":"Economic and Social Rights, Reparations and the Aftermath of Widespread Violence: The African Human Rights System and Beyond","authors":"Felix E. Torres","doi":"10.1093/hrlr/ngab017","DOIUrl":"https://doi.org/10.1093/hrlr/ngab017","url":null,"abstract":"\u0000 This article examines the dual responsibility of state authorities to repair past abuses and guarantee economic and social rights after episodes of widespread violence according to the jurisprudence of African human rights bodies. Two alternative frameworks underlying the practice of African bodies and human rights law more broadly are discussed. The first portrays the state as a threat to the individual, responsible for redressing the consequences of violations in breach of duties to respect and protect rights. The second understands the state as an active guarantor of rights in the aftermath of widespread abuses, responsible for improving the well-being of people affected and not affected by violence. In light of the possibilities and limitations that arise from both approaches in the African context, the article advocates the second.","PeriodicalId":46556,"journal":{"name":"Human Rights Law Review","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2021-06-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45665529","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 Handyside v. The United Kingdom, the European Court of Human Rights (ECHR) held that the right to freedom of expression, as provided for in Article 10 of the European Convention on Human Rights protects not only expressions that are favorably received but also those that ‘offend, shock or disturb’. 1 Yet, the Court has since developed a substantial body of inconsistent case-law allowing restrictions on ‘hate speech’ that severely questions the degree to which offensive, shocking and disturbing speech is truly protected by the ECHR. Against a qualitative and quantitative backdrop, the authors argue that the Court and previously the Commission, have adopted an overly restrictive approach to hate speech, which fails to provide adequate protection to political speech on controversial issues, including criticism of public officials and government institutions and has created an inconsistent and even arbitrary body of case law. Instead, jurisdictions that recognize a need to balance the freedom of expression with limits on hate speech have adopted more convincing approaches of hate speech, providing a robust protection of free speech while leaving room for the State to curtail the most extreme forms of non-violent hate speech.
{"title":"Hate Speech and the European Court of Human Rights: Whatever Happened to the Right to Offend, Shock or Disturb?","authors":"Jacob Mchangama, Natalie Alkiviadou","doi":"10.1093/HRLR/NGAB015","DOIUrl":"https://doi.org/10.1093/HRLR/NGAB015","url":null,"abstract":"\u0000 In Handyside v. The United Kingdom, the European Court of Human Rights (ECHR) held that the right to freedom of expression, as provided for in Article 10 of the European Convention on Human Rights protects not only expressions that are favorably received but also those that ‘offend, shock or disturb’. 1 Yet, the Court has since developed a substantial body of inconsistent case-law allowing restrictions on ‘hate speech’ that severely questions the degree to which offensive, shocking and disturbing speech is truly protected by the ECHR. Against a qualitative and quantitative backdrop, the authors argue that the Court and previously the Commission, have adopted an overly restrictive approach to hate speech, which fails to provide adequate protection to political speech on controversial issues, including criticism of public officials and government institutions and has created an inconsistent and even arbitrary body of case law. Instead, jurisdictions that recognize a need to balance the freedom of expression with limits on hate speech have adopted more convincing approaches of hate speech, providing a robust protection of free speech while leaving room for the State to curtail the most extreme forms of non-violent hate speech.","PeriodicalId":46556,"journal":{"name":"Human Rights Law Review","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2021-06-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49503701","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}
While anti-abortion activists have been successful in pushing to restrict access to abortion across the USA, reproductive rights activists have been mobilizing across Latin America to push for the easement of strict anti-abortion policies. These opposing directions of travel have renewed interest in which human rights arguments would best support the expansion of access to abortion in Latin America. To date, progress in this area has mostly relied on understanding that the prohibition of cruel, inhuman and degrading treatment requires states to allow abortions in the direst of circumstances. However, the vast majority of women in the region who seek abortions do not qualify for the small exemptions contained in the law. Activists looking to expand abortion provisions beyond the cruelty paradigm therefore need to find arguments that can stand firm in a generally conservative Latin American region. In this search, the Inter-American System could, somewhat surprisingly, provide keys to constructing a new discourse surrounding reproductive rights based on a nuanced understanding of structural discrimination and a willingness to visibilise the suffering of women.
{"title":"Pushing Past the Tipping Point: Can the Inter-American System Accommodate Abortion Rights?","authors":"P. P. Zuloaga","doi":"10.1093/HRLR/NGAB014","DOIUrl":"https://doi.org/10.1093/HRLR/NGAB014","url":null,"abstract":"\u0000 While anti-abortion activists have been successful in pushing to restrict access to abortion across the USA, reproductive rights activists have been mobilizing across Latin America to push for the easement of strict anti-abortion policies. These opposing directions of travel have renewed interest in which human rights arguments would best support the expansion of access to abortion in Latin America. To date, progress in this area has mostly relied on understanding that the prohibition of cruel, inhuman and degrading treatment requires states to allow abortions in the direst of circumstances. However, the vast majority of women in the region who seek abortions do not qualify for the small exemptions contained in the law. Activists looking to expand abortion provisions beyond the cruelty paradigm therefore need to find arguments that can stand firm in a generally conservative Latin American region. In this search, the Inter-American System could, somewhat surprisingly, provide keys to constructing a new discourse surrounding reproductive rights based on a nuanced understanding of structural discrimination and a willingness to visibilise the suffering of women.","PeriodicalId":46556,"journal":{"name":"Human Rights Law Review","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2021-05-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/HRLR/NGAB014","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45356393","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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