Human Rights Law Review - recent issues

An Examination of the European Court of Human Rights' Approach to Overruling its Previous Case Law

Mowbray, A. — 2009-06-15

The article begins with a consideration of the views of commentators, from both inside and outside the Strasbourg system, as to the nature of precedent within the jurisprudence of the Court. The approach of the original Court is then examined. This is compared with the contemporary case law of the full-time Court and three justifications for overruling established rulings are identified in the modern jurisprudence. Institutional features of the overruling process, including the roles of third parties and Court-directed changes, are addressed. Conclusions are drawn as to the present Court's reluctance to expressly acknowledge that it is overruling established case law and its failure to always provide adequate justifications of the social or scientific developments underpinning its revised jurisprudence.

An NGO Assessment of the New Mechanisms of the UN Human Rights Council

Sweeney, G., Saito, Y. — 2009-06-15

The inauguration of the universal periodic review (UPR) and the Advisory Committee in 2008 as the two new mechanisms of the UN Human Rights Council marked a significant step towards the finalisation of the Council's institution-building process.¹ The following article provides a critical assessment of the first two sessions of the UPR Working Group and the first session of the Advisory Committee. It also looks at the treatment of the reports of these two bodies by the Human Rights Council in June and September 2008, respectively. Particular attention is given to the contribution of non-governmental organisations (NGOs) and ‘other stakeholders’ throughout the process.

Addressing Economic and Social Rights Violations by Non-state Actors through the Role of the State: A Comparison of Regional Approaches to the 'Obligation to Protect'

Nolan, A. — 2009-06-15

This article centres on the state's obligation to ensure that third party non-state actors do not interfere with the enjoyment of economic and social rights (ESR) by rights-holders. In it, the author analyses and compares the different ways in which regional bodies deal with the obligation to protect ESR, seeking to account for the variety in their approaches. Amongst other things, the article highlights the way in which the regional bodies in question have referred to, and relied on, the jurisprudence of other international and regional human rights entities in fleshing out the state's obligation to protect ESR under their own legal frameworks. While focusing on the obligation to protect ESR in particular, the author's findings cast light more generally on the interpretation and application of ESR by the regional human rights bodies under consideration.

The UN Anti-terror Sanctions Regime under Pressure

Keller, H., Fischer, A. — 2009-06-15

Recent Developments at the ICC

Cross, M. E., Williams, S. — 2009-06-15

Strengthening the Rule of Law, but Fragmenting International Law: The Kadi Decision of the ECJ from the Perspective of Human Rights

Ziegler, K. S. — 2009-06-15

Habeas Corpus and Extraterritorial Jurisdiction after Boumediene: Towards a Doctrine of 'Effective Control' in the United States

Jenkins, D. — 2009-06-15

Issues Surrounding Life Imprisonment after the Abolition of the Death Penalty in Rwanda

Mujuzi, J. D. — 2009-06-15

Osamu Arakaki, Refugee Law and Practice in Japan

Anderson, K. — 2009-06-15

Daniel Moeckli, Human Rights and Non-Discrimination in the 'War on Terror'

Fenwick, H. — 2009-06-15

Books Received

2009-06-15

Of Shaming and Bargaining: African States and the Universal Periodic Review of the United Nations Human Rights Council

Abebe, A. M. — 2009-02-23

The Universal Periodic Review (UPR) of the United Nations Human Rights Council promises to be a useful tool for examining human rights situations in states in an objective, non-selective, universal and transparent manner. It is an undertaking imbued with a shift from the former Commission's policies and practice of shaming to a new consensual and cooperative model of human rights evaluation. The experience of African countries, both during the negotiation over its normative and institutional framework and in the two sessions of the Working Group on UPR, lays bare the challenges to the new human rights body and its unique peer review mechanism. The article critically examines the participation of African countries in the UPR and highlights some of the issues that deserve, at this early stage, the attention of all those who mind to see the objectives of the UPR fully realised.

Separate opinions in the European Court of Human Rights

White, R. C.A., Boussiakou, I. — 2009-02-23

Separate opinions, both concurring and dissenting, have been a feature of judgments of the European Court of Human Rights since its earliest days, but detailed studies of their incidence and impact have until recently been sparse. This article, based on an AHRC-funded research study, offers a survey of the research literature and describes the outcome of its own consideration of such opinions. The use of separate opinions in the European Court of Human Rights is significant, but the incidence of sole dissents by national judges is very low. It would appear that the main determining factor in the writing of a separate opinion is judicial temperament. There is some evidence that the background of judges prior to their election to the Court has some influence on their approach to writing separate opinions. The Court, however, demonstrates high levels of collegiality and the use of separate opinions contributes to the transparency of its decision-making.

The Collective Complaints System of the European Social Charter: Interpretative Methods of the European Committee of Social Rights

Cullen, H. — 2009-02-23

The system of collective complaints established by a Protocol to the European Social Charter has now been in force for a decade. The Protocol gives the European Committee on Social Rights (ECSR) the competence to examine complaints by social partner organisations and non-governmental organisations (NGOs). The procedural aspects of the system have been criticised, particularly the lack of remedial powers and the significant role played by the Committee of Ministers. Nonetheless, it is important to examine the practice of the ECSR in deciding collective complaints, which reveals that the ECSR has developed considerable economic and social rights jurisprudence. It has articulated and elaborated on the values underlying the Charter. It has also employed techniques of reasoning drawn in part from the European Court of Human Rights. The collective complaints system can therefore be regarded as a quasi-judicial process—the first in international law specifically for economic and social rights.

The International Committee of the Red Cross and International Human Rights Law

Sayapin, S. — 2009-02-23

Throughout a considerable part of its history, the International Committee of the Red Cross (ICRC) has customarily refrained from invoking international human rights law, for reason of this law's alleged politicisation. However, the changing character of armed conflicts and other situations of violence where the ICRC is currently operating have prompted it to set a framework for making some limited use of selected and applicable human rights, for the purpose of reinforcing the protection and assistance it provides. This article examines how the ICRC may use human rights in this way during armed conflicts, through the prism of international humanitarian law, as well as the conditions for their invocation in accordance with relevant ICRC doctrines.

Reply to Paul O'Connell's Article on Neo-liberal Globalisation and Human Rights

Howard-Hassmann, R. E. — 2009-02-23

Not Seeing the Forest for the Trees: A Reply to Rhoda Howard-Hassmann

O'Connell, P. — 2009-02-23

Gender Equality as an Essential French Value: The Case of Mme M

Vakulenko, A. — 2009-02-23

Hadijatou Mani Koroua v Niger: Slavery Unveiled by the ECOWAS Court

Duffy, H. — 2009-02-23

Elizabeth Wicks, Human Rights and Healthcare

Bois-Pedain, A. d. — 2009-02-23

Frans Viljoen, International Human Rights Law in Africa

Murray, R. — 2009-02-23

Books Received

2009-02-23

Trade and Human Rights: What Does 'Impact Assessment' Have to Offer?

Harrison, J., Goller, A. — 2008-11-17

This article will examine key issues associated with conducting human rights impact assessments (HRIAs) of international trade agreements. It records the widespread calls for such HRIAs by relevant actors, but highlights the fact that limited attempts have so far been made to explore important issues concerning their design and intrinsic value. It therefore poses some key questions which need to be considered in the development of appropriate methodologies and explores the extent to which these methodological issues can best be appropriately resolved. In so doing, the article considers lessons from existing practice in the field including ‘social’ impact assessments of trade agreements and the limited number of HRIAs so far conducted, which are specifically focused on international trade law issues. As a result of this analysis some conclusions are drawn about the value and limitations of HRIAs of trade agreements, and the extent to which we can expect them to enhance the debate about human rights law and trade law inter-linkages in the future.

Progress at the Front: The Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights

Mahon, C. — 2008-11-17

The two-decade-long campaign for an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR) is nearing success. The drafting of the Optional Protocol has been completed, and the Human Rights Council approved the text on 18 June 2008. It is now hoped that the draft OP-ICESCR will finally be adopted by the General Assembly in late 2008, heralding the beginning of a new era in relation to access to international remedies for violations of economic, social and cultural rights (ESC rights). The draft OP-ICESCR establishes a new quasi-judicial function for the Committee on Economic, Social and Cultural Rights (the Committee), allowing it to receive communications from individuals and groups of individuals alleging violations of any of the ESC rights set forth in the ICESCR. It also establishes, inter alia, an inquiry procedure, provides for interim measures to be ordered and establishes a trust fund for the realisation of ESC rights. Some of the contents of its provisions and the procedures it establishes are unique in comparison with other treaty body complaints procedures, and others mirror closely existing provisions in similar protocols and conventions. This article overviews the draft OP-ICESCR, outlining its background and genesis, and detailing some of its most contentious provisions, including the scope of the OP-ICESCR, its locus standi and admissibility provisions, the criteria to be applied by the Committee in its review of the merits and particularly debated issues such as how to take into account the need for international cooperation and assistance. The article then proposes some preliminary assessments regarding the potential success and impact of this important new mechanism.

Gender Discrimination under EU and ECHR Law: Never Shall the Twain Meet?

Besson, S. — 2008-11-17

Gender discrimination is addressed differently under Article 14 ECHR and EU primary and secondary legal provisions. This is no wonder, since the role and scope of non-discrimination law in both legal orders are not the same, and since the scope of jurisdiction of the European Court of Human Rights and the European Court of Justice applying those provisions differ drastically as well. While this observation is not new, the potential discrepancy between the two non-discrimination regimes and the two Court's case law constitutes an increasing concern for national authorities and individuals in the 27 European Union (EU) Member States. As a result, gender discrimination is one of the many facets of the current human rights competition raging between the two European organisations, but also of the recent judicial attempts at minimising potential conflicts through mutual borrowings. The present article starts by identifying and comparing the role and scope, as well as the various material and procedural constitutive elements of the two regimes of non-discrimination on grounds of gender. The author argues for a greater systematisation of the two regimes before fruitful borrowings can take place or else the latter will jeopardise the overall coherence of the law on gender discrimination and the specificities in each of the two regimes. The article also argues that EU accession to the ECHR will not, as it is often argued, threaten the specificity of EU anti-discrimination law, but on the contrary enhance the complementarity between EU social law and European human rights law more generally.

International Law and the Resettlement of the (Outer) Chagos Islands

Allen, S. — 2008-11-17

Occupiers of 51 Olivia Road v City of Johannesburg: Enforcing the Right to Adequate Housing through 'Engagement'

Ray, B. — 2008-11-17

Laval and Viking: The Right to Collective Action versus EU Fundamental Freedoms

Hinarejos, A. — 2008-11-17

Olga Ferguson Sidorenko, The Common European Asylum System: Background, Current State of Affairs, Future Direction

Gil-Bazo, M.-T. — 2008-11-17

Jonathan Power, Conundrums of Humanity: The Quest for Global Justice

Riley, S. — 2008-11-17

Books Received

2008-11-17

Volume Contents

2008-11-17