Human Rights Law Review - recent issues

Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles

O'Flaherty, M., Fisher, J. — 2008-05-27

On 26 March 2007, a group of human rights experts launched the Yogyakarta Principles on the Application of Human Rights Law in Relation to Sexual Orientation and Gender Identity (the Yogyakarta Principles). The Principles are intended as a coherent and comprehensive identification of the obligation of States to respect, protect and fulfil the human rights of all persons regardless of their sexual orientation or gender identity. Since their launch the Principles have attracted considerable attention on the part of States, United Nations actors and civil society. It is likely that they will play a significant role within advocacy efforts and, whether directly or otherwise, in normative and jurisprudential development. The present article constitutes the first published critical commentary on the Principles. It seeks to situate them within the contexts of (a) the actual situation of people of diverse sexual orientations and gender identities, and (b) the applicable international human rights law as it stands today. Thus situated, the Yogyakarta drafting process and the outcome text are examined. The final section of the article comprises a preliminary review of the impact and dissemination of the Principles.

Abortion as a Human Right--International and Regional Standards

Zampas, C., Gher, J. M. — 2008-05-27

This article focuses on the striking expansion of international and regional human rights standards and jurisprudence that support women's human right to abortion. It summarises pertinent developments within the United Nations, European, Inter-American and African human rights systems regarding abortion, as they relate to women's rights to life and health, in situations of rape, incest or foetal impairment, and for abortion based on social and economic reasons and on request. In doing so, the article touches on charged issues such as maternal mortality, prohibitions of therapeutic abortion as infringing on the right to be free from cruel, inhuman and degrading treatment, and state procedural obligations to ensure women's right to access legal abortion. Finally, the article addresses the growing recognition by international human rights bodies that criminalisation of abortion leads women to obtain unsafe abortions, threatening their lives and health, and recent national-level developments in the field.

Reporting on Hong Kong to UN Human Rights Treaty Bodies: For Better or Worse Since 1997?

Panditaratne, D. — 2008-05-27

The year 2007 marked the 10th anniversary of the establishment of the Hong Kong Special Administrative Region within the People's Republic of China (PRC). In the years leading up to the change of sovereignty on 1 July 1997, the United Kingdom made several international human rights treaties applicable to Hong Kong. These included the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Since 1997, the treaties have continued to apply to Hong Kong, with the PRC submitting reports on behalf of Hong Kong to United Nations (UN) monitoring committees. The following article examines the reporting process with respect to Hong Kong, focusing on Hong Kong's reports submitted under the ICCPR and ICESCR. It recalls the grave concerns before 1997 about the future of the UN human rights reporting process in Hong Kong and analyses the extent to which that process has changed since 1997. It finds that fears expressed before the change of sovereignty have largely proved unfounded. Nevertheless, the article identifies certain concerns and pinpoints ways to improve the current process.

Developments at the Human Rights Council in 2007: A Reflection of its Ambivalence

Callejon, C. — 2008-05-27

Prosecutor v Thomas Lubanga Dyilo--Decision on the Confirmation of Charges

Bekou, O. — 2008-05-27

Recent Developments in the African Human Rights System 2007

Murray, R. — 2008-05-27

The Case of the Maya Villages of Belize: Reversing the Trend of Government Neglect to Secure Indigenous Land Rights

Campbell, M. S., Anaya, S. J. — 2008-05-27

Mark Freeman, Truth Commissions and Procedural Fairness

Bisset, A. — 2008-05-27

Samantha Knights, Freedom of Religion, Minorities and the Law

Langlaude, S. — 2008-05-27

Books Received

2008-05-27

Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities

Kayess, R., French, P. — 2008-02-18

On 13 December 2006, the General Assembly of the United Nations adopted the Convention on the Rights of Persons with Disabilities (CRPD) and an associated Optional Protocol. The formulation of the CRPD has been hailed as a great landmark in the struggle to reframe the needs and concerns of persons with disability in terms of human rights. The CRPD is regarded as having finally empowered the world's largest minority to claim their rights, and to participate in international and national affairs on an equal basis with others who have achieved specific treaty recognition and protection. This essay interrogates the intellectual antecedents of the CRPD and its continuity and discontinuity with 25 years of international law and its struggles with disability and human rights. It then explores the text of the CRPD, critically examining its potential contribution to the realisation of the rights of persons with disability.

Sovereign Debt and Social Rights-Legal Reflections on a Difficult Relationship

Michalowski, S. — 2008-02-18

The relationship between the sovereign debt of developing countries and the protection of social rights in those countries has received a lot of attention from an economic, political and moral perspective, but relatively little has been written about the legal side of this relationship. This article addresses the underlying issues from three different angles. First of all, it analyses what is and could be the role of international social rights obligations in the context of debt repayment policies and decisions, and how conflicts between social rights protection and contractual repayment obligations can and should be resolved under international law. A second issue is what the protection of social rights in national constitutions might add to the discussion, particularly with regard to the justiciability of social rights. Thirdly, it will be examined whether and how social rights can be used as a defence in proceedings for debt repayment.

Reporting under International Human Rights Treaties: Perspectives from Timor Leste's Experience of the Reformed Process

Devereux, A., Anderson, C. — 2008-02-18

This article explores Timor Leste's experience of reporting under the reformed international human rights treaties reporting system during the period 2004–2007. Whilst consciousness has grown of the difficulties faced by states by the duplication of treaty reporting processes and the resource burden represented by reporting, the reforms instituted to date have been comparatively minor. Timor's experience with the new Common Core Document(CCD)/treaty-specific document format affirms that reporting serves useful purposes, particularly in stimulating human rights education initiatives, government/NGO collaboration and awareness of human rights gaps in practice. The reformed process highlights cross-cutting human rights matters. Yet, significant challenges remain, particularly for developing, post-conflict states, before reporting will attain its desired potential of support for improved human rights promotion and protection at the national level. The CCD itself raises complex conceptual difficulties needing resolution. There remains a paucity of appropriate methodological tools to support the reporting process and facilitate the integration of human rights and development goals. Further work is thus needed to shape a sustainable process for reporting.

Putting Flesh on the Skeleton: South African Judicial Enforcement of the Right to Adequate Housing of Those Subject to Evictions

Chenwi, L. — 2008-02-18

Access to adequate housing is one of the greatest challenges facing the South African government today. The country's housing situation is characterised by a severe housing shortage, a huge backlog in the provision of housing, provision of inadequate housing and severe overcrowding in existing dwellings. In addition, evictions that at times result in homelessness are a daily occurrence. The government has put in place a number of legislative and other measures aimed at realising the right to adequate housing. However, the difficulty that remains is translating these laws and policies into reality, resulting in safe, secure and affordable living conditions for the poor and vulnerable. This article examines how South African courts have sought to enforce the right to adequate housing of those faced with evictions through interpreting the constitutional provision on this right and the corresponding state duty, while at the same time, protecting the rights of landowners.

The Human Rights Committee and Military Trials of Civilians: Madani v Algeria

Shah, S. — 2008-02-18

Jurisdiction and International Responsibility in Peace Support Operations: The Behrami and Saramati Cases

Sari, A. — 2008-02-18

Evans v United Kingdom: What Implications for the Jurisprudence of Pregnancy?

Ford, M. — 2008-02-18

Uner v The Netherlands: Expulsion of Long-term Immigrants and the Right to Respect for Private and Family Life

Steinorth, C. — 2008-02-18

Conor Gearty, Can Human Rights Survive?

Davies, S. — 2008-02-18

Peter Bartlett, Oliver Lewis and Oliver Thorold, Mental Disability and the European Convention on Human Rights

Russell, J. — 2008-02-18

Books Received

2008-02-18

State Immunity for Torture

Bates, E. — 2007-11-21

The House of Lords’ ruling in Jones v Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya (the Kingdom of Saudi Arabia) and others sets an important precedent in the field of international civil claims for torture. It was also the first to address in detail the ratio of the seminal judgment in Pinochet No. 3, a ruling that has given rise to much speculation as to the relationship between State immunity, jus cogens norms and human rights. This article explores the significance of the Jones case, and, in the light of that ruling, comments more generally upon the wider issue of the extent to which State immunity acts as a barrier to international legal actions for torture brought in domestic courts in both the civil and criminal spheres.

Nomadic Territories: A Human Rights Approach to Nomadic Peoples' Land Rights

Gilbert, J. — 2007-11-21

In most societies nomadic peoples face discrimination. At the heart of this discrimination frequently lies the crucial issue of property in land. The sharing of lands between nomads and settled agriculturalist societies has often led to violent confrontation. Access to land is a determining factor for many nomadic peoples as whether or not nomads have access to land will determine the survival of their mobile lifestyle. Historically nomadic peoples have not been regarded as having any rights to land because their nomadic lifestyle was not considered to fulfil the criterion of ‘effective occupation’ of the land. By exploring the evolution of international law regarding nomadic peoples’ land rights, this article analyses how human rights law could provide nomadic peoples with rights to use their lands. Ultimately, this article argues that under the banner of international human rights law, nomadic peoples are gaining the right to live on their land in their traditional ways through the gradual establishment of a specific corpus of law dedicated to the rights of nomads.

Islamic Dress in Human Rights Jurisprudence: A Critique of Current Trends

Vakulenko, A. — 2007-11-21

This article highlights some of the discursive implications of framing the question of Islamic dress as one of religious rights. It is argued that the very construction of hijab issues as those of ‘religious identity’, sustained by the use of Article 9 of the ECHR as the primary legal basis for their resolution, has shaped a number of counterproductive trends. These are: avoiding difficult questions through a judicial technique of deference to local knowledge; using a language of choice to produce an obscure and unsatisfactory account of Muslim women's agency; false dichotomising of culture and gender; and producing an ever more docile and exposed subject through the subtle mechanisms of public scrutiny and moralising. Each trend is considered in turn. The article's arguments draw on the critical thought of Wendy Brown and post-colonial feminism.

The Draft UN Declaration on the Rights of Indigenous Peoples: An Overview

Errico, S. — 2007-11-21

The UN Declaration on the Rights of Indigenous Peoples is Adopted: An Overview

Errico, S. — 2007-11-21

Genocide and State Responsibility

Gibney, M. — 2007-11-21

Catching Up with the Past: Recent Decisions of the Inter-American Court of Human Rights Addressing Gross Human Rights Violations Perpetrated During the 1970 1980s

Martin, C. — 2007-11-21

Recent Human Rights Developments in the EU Courts: The Charter of Fundamental Rights, the European Arrest Warrant and Terror Lists

Hinarejos, A. — 2007-11-21

Peter Rowe, The Impact Of Human Rights Law on Armed Forces

Liivoja, R. — 2007-11-21

Kerry Lynn Macintosh, Illegal Beings: Human Clones and the Law

Ford, M. — 2007-11-21

Books Received

2007-11-21

Index

2007-11-21

Table of Cases

2007-11-21

Subject Matter Index

2007-11-21