Human Rights Law Review - recent issues

Human Rights: Minimum and Maximum Perspectives

Brems, E. — Mon, 24 Aug 2009 07:37:42 PDT

A focus on human rights violations leads to border control type human rights monitoring that provides only minimal human rights protection, as the borderline tends towards the bottom. Moreover, it is indifferent to degrees of human rights protection beyond the borderline, thus discouraging ambitious human rights agendas. The technique of progressive realisation may be the basis of improved border control monitoring that avoids the downward trend. Moreover, borderline control should be complemented with additional techniques that transform the dynamic of human rights from minimalism to maximalism.

The International Obligation to Abolish Traditional Practices Harmful to Children's Health: What Does It Mean and Require of States?

Tobin, J. — Mon, 24 Aug 2009 07:37:42 PDT

Article 24(3) of the United Nations Convention on the Rights of the Child imposes an obligation on States to abolish traditional practices harmful to the health of children. This article seeks to examine the nature of this obligation, the types of practices to be abolished and the measures required of States to achieve this end. It argues that the prejudice of a particular practice to the health of a child cannot be reduced to a simple bio-medical assessment and the broader psycho-social impacts and significance of a practice must be taken into account. It also identifies evidence of a cultural and gender bias in the identification of practices deemed harmful to the health of a child in the work of the Committee on the Rights of the Child, the body responsible for monitoring States’ compliance with their obligations under the Convention. Finally, the practice of female genital cutting is used to demonstrate that rather than adopt a simple legislative regime based on zero tolerance, a multifaceted approach which is generated through dialogue with the communities that tolerate harmful practices must be adopted if the effective elimination of harmful practices is to be achieved.

Partnering with Strasbourg: Constitutionalisation of the European Court of Human Rights, the Accession of Central and East European States to the Council of Europe, and the Idea of Pilot Judgments

Sadurski, W. — Mon, 24 Aug 2009 07:37:42 PDT

The accession of Central and East European States into the European Convention of Human Rights system was both a threat and a promise to the system. The threat resulted not only from the substantial increase of the number of Contracting States and that of the case-load, but also from the demise of a consensus which was, originally, presupposed by the system of protection of human rights in Western Europe: original members of the Council of Europe were ‘like-minded’ and the Convention system did not represent a challenge to their internal patterns of human rights protection. This article, however, focuses on a promise: a possibility for the European Court of Human Rights to abandon once and for all the fiction that it is merely a sort of super-appellate court which scrutinises individual decisions rather than laws in Contracting States. This shift towards a quasi-constitutional role, going beyond the simple identification of wrong individual decisions so as to point to systemic legal defects, was triggered by systemic problems within the new Contracting States, while also facilitated by collaboration between the European Court of Human Rights and national constitutional courts. The emergence of so-called ‘pilot judgments’ is the best and most recent illustration of this trend. The way in which a national court may form a de facto alliance with the European Court effectively ‘pierces the veil of the State’, and positions the European Court as a quasi-constitutional judicial body at a pan-European level.

A Question of Life and Death--The Request for Interpretation of Avena and Certain other Mexican Nationals (Mexico v United States) before the International Court of Justice

Hoppe, C. — Mon, 24 Aug 2009 07:37:42 PDT

The Georgian Conflict, Racial Discrimination and the ICJ: The Order on Provisional Measures of 15 October 2008

Thienel, T. — Mon, 24 Aug 2009 07:37:42 PDT

From Westminster to Strasbourg: A and others v United Kingdom

Shah, S. — Mon, 24 Aug 2009 07:37:42 PDT

Reluctantly Restoring Rights: Responding to the Prisoner's Right to Vote

Foster, S. — Mon, 24 Aug 2009 07:37:42 PDT

Stefan Sottiaux, Terrorism and the Limitation of Rights: The ECHR and the US Constitution

Bates, E. — Mon, 24 Aug 2009 07:37:42 PDT

Alexandra Xanthaki, Indigenous Rights and United Nations Standards: Self-determination, Culture and Land

Charters, C. — Mon, 24 Aug 2009 07:37:42 PDT

Books Received

Mon, 24 Aug 2009 07:37:42 PDT

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

Mowbray, A. — Mon, 15 Jun 2009 03:36:06 PDT

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. — Mon, 15 Jun 2009 03:36:06 PDT

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. — Mon, 15 Jun 2009 03:36:06 PDT

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. — Mon, 15 Jun 2009 03:36:06 PDT

Recent Developments at the ICC

Cross, M. E., Williams, S. — Mon, 15 Jun 2009 03:36:06 PDT

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

Ziegler, K. S. — Mon, 15 Jun 2009 03:36:06 PDT

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

Jenkins, D. — Mon, 15 Jun 2009 03:36:06 PDT

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

Mujuzi, J. D. — Mon, 15 Jun 2009 03:36:06 PDT

Osamu Arakaki, Refugee Law and Practice in Japan

Anderson, K. — Mon, 15 Jun 2009 03:36:06 PDT

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

Fenwick, H. — Mon, 15 Jun 2009 03:36:06 PDT

Books Received

Mon, 15 Jun 2009 03:36:06 PDT

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

Abebe, A. M. — Mon, 23 Feb 2009 05:49:30 PST

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. — Mon, 23 Feb 2009 05:49:30 PST

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. — Mon, 23 Feb 2009 05:49:30 PST

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. — Mon, 23 Feb 2009 05:49:30 PST

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. — Mon, 23 Feb 2009 05:49:30 PST

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

O'Connell, P. — Mon, 23 Feb 2009 05:49:30 PST

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

Vakulenko, A. — Mon, 23 Feb 2009 05:49:30 PST

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

Duffy, H. — Mon, 23 Feb 2009 05:49:30 PST

Elizabeth Wicks, Human Rights and Healthcare

Bois-Pedain, A. d. — Mon, 23 Feb 2009 05:49:30 PST

Frans Viljoen, International Human Rights Law in Africa

Murray, R. — Mon, 23 Feb 2009 05:49:30 PST

Books Received

Mon, 23 Feb 2009 05:49:30 PST