Coloniality and Recent European Migration Case Law

Regional human rights courts like the European Court of Human Rights (ECtHR), the Inter-American Court of Human Rights (IACtHR), and the African Court of Human and People's Rights (ACtHPR) have become popular sites of mobilization for victims and activists who seek justice when justice fails at home. Besides being platforms for individual remedy, human rights courts increasingly shape social norms and state policy within countries, making them attractive avenues for rights advocates to develop new norms or to push domestic authorities to reform legislation. The judges of these courts can decide, for example, whether same-sex couples have a right to be married, if prisoners have the right to vote or receive HIV/AIDS treatment, or when a state can deport illegal immigrants to a country where they will likely be tortured. As these courts pass their judgments, they often find themselves in conflict with states that are violating human rights of marginalized groups on a large scale and are unwilling to implement international rulings. Although international human rights courts have become increasingly popular venues among victims and activists who seek justice when justice fails at home, we are only beginning to understand how activists play roles in shaping the development of regional human rights courts' case law—the body of judgments that shapes how judges will make their decisions in the future. We now have plenty of international relations and international legal research on the interactions between states and international courts: how judges in these courts wrestle between deferring to the interests of member state governments whose actions are on trial and sticking closely to the conventions' fundamental yet evolving principles (Alter et al., 2019; Helfer & Voeten, 2014). As some states begin to resist international courts' authority, scholars have begun to examine the dynamics of this backlash (Hillebrecht, 2022; Madsen et al., 2018; Sandholtz et al., 2018). Recent studies have also demonstrated that human rights advocates—whether NGOs or individual lawyers—have a significant impact on shaping the jurisprudence of international courts and the impact judgments have in concrete locations (Kahraman, 2018; Sundstrom, 2014; van der Vet, 2012; Kurban, 2020; Conant, 2018; Harms, 2021; Cichowski, 2016; Hodson, 2011; Haddad, 2018). Meanwhile, these advocates themselves have been subject to repression and stigmatization by governments as part of the backlash phenomenon. Without an adequate understanding of the factors shaping activists' engagement with international courts, we risk undervaluing their strategic impact on the expansion of case law, the human rights protection of marginalized groups who cannot find remedies at home, and the domestic implementation of these judgments in an age of state backlash. In this section, we summarize the three papers contained in this symposium and their original contributions to these themes. Over the last decade, dozens of countries have erected legal barriers or started vilifying campaigns to stymie the work of NGOs (Buyse, 2018; Chaudhry, 2022). One tactic in this toolkit is the enactment of burdensome regulation on NGOs that receive funds from foreign donors as they allegedly promote foreign agendas (Christensen & Weinstein, 2013; Dupuy et al., 2021). States that frequently abuse human rights are especially prone to target NGOs that engage in strategic litigation (Hillebrecht, 2019). Most NGOs depend on foreign funding, and NGOs that litigate international cases fall disproportionately in this category, but do funders affect the selection of cases? In “Foreign Agents or Agents of Justice? Private Foundations, NGO Backlash, and International Human Rights Litigation,” Heidi Haddad and Lisa Sundstrom examine the extent to which Western donors, particularly private foundations, have encouraged NGOs in Europe to litigate at the ECtHR as a human rights advocacy strategy. They examine overall patterns of donor funding and NGO litigation records, and look in more detail at the case of Russian NGOs' foreign funding and litigation records. The analysis is extremely timely, as the Russian government's criminalization of independent civil society actors, especially in the human rights field, and their accusation that foreign funding turns NGOs into “foreign agents” have been crucial elements of the Russian regime's autocratization. This claim has also provided fuel for Russia's disenchantment with the ECtHR in recent years, contributing to the assessment of many observers that Russia's full-scale attack on Ukraine was the last straw in an inevitable collision course leading to its exit from the Council of Europe. Haddad and Sundstrom debunk the idea that foreign donors are pushing NGOs toward strategies of human rights litigation. Instead, they argue, there is more evidence that NGOs themselves promoted the mechanism of international litigation as a strategy that donors later adopted. This article is a poignant reminder of the advocacy tools that Russian human rights activists and citizens have lost as a result of their government's departure from the Council of Europe, including ECtHR jurisdiction. Yet it also provides insight into the likely roles of foreign donors in other country cases where NGOs are using international court litigation as a human rights advocacy strategy, which is often a target of the ire of national governments, as explored in the next article in the symposium. When states attack human rights NGOs within their borders and/or international human rights courts themselves, how does this affect the willingness of those NGOs to take cases to international courts, and the ways in which they do so? De Silva and Plagis ask this question in their article about state backlash against NGOs in the case of Tanzania and the African Court on Human and Peoples' Rights. A fascinating empirical question they pose is: does state backlash against NGOs increase NGO litigation at international courts (to contest state repression at those courts and use international mechanisms when domestic ones are not available), roughly in line with Keck and Sikkink's famous “boomerang pattern” (Keck & Sikkink, 1998), or decrease it due to heightened fear and restricted NGO capabilities that state repression creates? Employing a process-tracing analysis of NGOs' involvement in three cases before the African Court at different stages of the Tanzanian government's backlash against the Court, De Silva and Plagis find that “two-level backlash” by states can result in both phenomena, either promoting or deterring NGO legal mobilization at international human rights courts, depending on certain conditions. The three selected cases concerning the death penalty, the rights of persons with albinism, and the rights of pregnant schoolgirls and mothers, which took place at different time periods, demonstrate a number of patterns of state backlash interacting with NGO strategies. The authors find that domestic-level state backlash deterred domestic NGOs from partnering with international NGOs in litigation, but that such backlash, when it repressed domestic political and legal mobilization opportunities, actually encouraged both Tanzanian and international NGOs to turn to the African Court more frequently to seek remedies. International-level backlash in turn only deterred NGOs from international litigation when such backlash consisted of state efforts to restrict NGOs' ability to engage in litigation, and not when the international backlash was in the form of routine noncompliance with African Court rulings. Importantly, the authors find that NGO responses to state backlash were significantly shaped by their degree of legal consciousness and expertise with the rules, proceedings, and workings of the African Court. Those NGOs with less knowledge and experience were more likely to back away from engaging with the Court under the pressure of state backlash. De Silva and Plagis conclude that “NGOs' persistent human rights advocacy in the face of state backlash is a double-edged sword,” in the sense that they may not be deterred by state backlash initially, but there is a danger that their continued determination to engage in international litigation could prompt governments to engage in even more severe forms of backlash, with critical impacts on international courts and already vulnerable human rights defenders. Rights advocates have a growing menu of institutions and courts available to them. How do activists choose at which institution to lodge their cases in a world where legal remedies have diversified, or as some have argued, fragmented (Koskenniemi & Leino, 2002)? In “What Makes an International Institution Work for Labor Activists? Shaping International Law through Strategic Litigation,” Filiz Kahraman goes beyond the tendency of legal mobilization studies to only examine how activists interact with a single court or institution. Instead, Kahraman opens up how rights advocates imagine which institution is most receptive to their claims. Drawing on a comparative interview study of British and Turkish trade union activists and their legal mobilization campaigns at international courts and quasi-judicial institutions like the International Labor Organization (ILO), Kahraman examines how activists first probe and then strategically identify which court or international institution is most susceptible to their primary goals of influencing structural reforms and setting new norms. Through this probing process—or dynamic signaling game between courts and litigants—activists push a court's jurisprudence and case law into new issue areas. For instance, at the ECtHR, Turkish trade unionists challenged domestic courts' ruling that public sector workers did not have the right to establish unions, even though the ECtHR had no established case law on labor rights in 1990s. They won the case, with the ECtHR finding that Turkey violated the right of public sector workers to unionize. These cases not only had an impact within Turkey, but over the next decades, similar cases brought by British unionists would spin off the early precedent set by the Turkish legal mobilization efforts. Kahraman argues that they ultimately pushed the ECtHR to recognize the basic trade union rights as fundamental human rights. Kahraman sheds light on the often hidden strategies behind international litigation. Activists litigate not just for the immediate impact on the current case they work on, but how they envision that all the cases they work on may shape norms and domestic structural reforms further in the future. Whether an institution is perceptive of claims lies in the eye of the beholder. Kahraman finds that besides targeting institutions with high compliance rates, they also take cases to institutions with low rates of compliance, especially “if these institutions have extensive judicial authority to create new international norms.” So, it is not the de jure protection set by an international courts, but rather how activists perceive the juridical responsiveness and judicial authority of courts—or, how judges adopt either an activist approach or restraint in response to incoming cases and how willing states are to implement cases of a court, respectively—that determines why activists select certain courts or quasi-judicial institutions (like the ILO). Kahraman gives us new tools to interpret how activists perceive authority and receptiveness and respond to opportunities. Rather than static external legal remedies, courts and quasi-judicial institutions are opportunity structures that are malleable to the strategic vision of the activist or litigant. The articles in this symposium together reveal a number of key overlapping insights. At the broadest level, they demonstrate that activists' behaviors and strategies influence international courts' jurisprudence, politics within states, and the human rights outcomes of everyday citizens—and these influences have often been hidden in our existing canon of research on international courts. In addition, all of these articles show that, while activists may face challenges in their efforts, often including significant backlash from their home state governments, they also continue to retain significant agency through their creative efforts to develop legal strategies and circumvent state repression. Activists perennially innovate: sparking the ideas that inspire donors who fund them; calculating how to continue their litigation work when government actors threaten them; and taking risks in litigation to push courts to expand how they define human rights. However, along with these uplifting conclusions, there are worrying patterns that demand future research. States are increasingly pushing back against the powers of international courts to bind them to costly measures, and as this symposium has shown, national governments often point to activists as contributors to this “problem” of invasive international human rights standards. A growing body of research has tracked how human rights defenders of all kinds globally are under threat from actors like governments and corporations who disagree with their contentious actions. We need more studies that gather comprehensive data and systematically track these threats, specifically with regard to activists who engage in international human rights litigation. We suspect that such activists are likely disproportionately targeted due to the international visibility of their complaints. We also desperately need research into possible innovative responses to these threats to activists—responses from activists, funders, governments of countries that support human rights, and international courts themselves. Freek van der Vet is a University Researcher at the Erik Castrén Institute of International Law and Human Rights, Faculty of Law, University of Helsinki and the principal investigator of the Toxic Crimes Project. Lisa McIntosh Sundstrom is Professor of Political Science at the University of British Columbia. She is the director of the ActinCourts network at UBC and conducts research on legal mobilization by Russian activists.

Since the 1990s, the European Court of Human Rights (ECtHR) has witnessed an unparalleled growth in its caseload, in tandem with the expansion of its jurisprudential authority vis-à-vis states. Yet, scholars studying European integration and political scientists have paid little attention to the complex and variable ways in which the ECtHR judicial rule-making interacts with national political systems and societies. This article examines the implementation of ECtHR judgments in cases brought to it by individuals from sexual minorities, historical ethnic and religious minorities, and immigrants and asylum seekers from five countries: Greece, Bulgaria, Austria, France and the UK. It argues that European human rights case law matters, and that its implementation can influence domestic legal and policy change under particular preconditions. It is most likely to do so, in the first place, through repeat litigation and legal mobilisation by interested civil society and minority actors, capable of exerting pressure and linking Court rulings to policy issues and reforms. Furthermore, the ability of European human rights case law to expand rights at the national level crucially depends on support by domestic political and other influential elites.

The relationship which is the focus of this chapter is that of international human rights standards which vertically regulate the relationship between a state and private individuals or groups, and international humanitarian law which horizontally regulates the relationship between groups or individuals acting on behalf of states. There are two kinds of conflicted relationship: the first is the horizontal interstate relationship between two sovereign entities?the rights of one and obligations of the other. Secondly, a concurrent legal dynamic concerns the relationship between the population of occupied territory and the state apparatus of foreign occupying power. The presence of a wide range of intersecting and potentially applicable legal regimes during military occupation results in a particularly crucial role for lex specialis in the analysis of legal rules and principles applicable to military occupation. The chapter overviews this process, addressing the applicability of human rights standards in the context of military occupation. Keywords: international human rights standards; international humanitarian law (IHL); interstate relationship; legal reasoning; lex specialis ; military occupation

Today, it is not seriously challenged that human rights law applies to proceedings before the International Criminal Court. The exact boundaries of this statement, however, might be less clear. The present article argues that the extent of applicability of human rights law cannot be precisely described unless the specific nature of the Court and of international criminal justice in general is taken into consideration. More concretely, it will be demonstrated that the exact scope of applicability of human rights standards to the ICC setting can only be addressed by referring to inherent characteristics (both of the Court and of the international criminal system as a whole) that could possibly bear a reductive impact on that scope. It will be argued throughout the analysis that several of these specific features are indeed capable of reducing the level of protection, while on a closer look others do not display such influence.

The nature of private law is strongly embedded in dismissal cases. For this reason, human rights standards are rarely applied in the settlement of such cases in court. However, the Martinus Masa Dorita v. PT Musim Mas case demonstrated a different practice. Particularly in the court of first instance, the judges explicitly considered human rights law, resulting in a judgment that contrasted with the parties’ claims. In spite of the fact that the Supreme Court annulled the decision of the court of first instance, the presence of human rights argumentation in the journey of the case remains important to explore. By analyzing judges’ reasoning in the court decisions for the case, this doctrinal legal research developed a legal methodology for the application of human rights standards in dismissal cases. We found that the judges have made human rights standards work by reinterpreting pre-existing employment law provisions that govern employee-employer relations using an impact-oriented reasoning method. This work contributes to a greater understanding of how judges can put human rights law to work when developing their reasoning for dismissal cases. Based on the case, human rights-based reasoning enables judges to provide vigorous protection of workers’ human rights and deliver substantive justice. We argue that human rights considerations enable courts to create equilibrium in unequal employee-employer relations.

Few areas of international law exist in such close, but complex, proximity to other areas of legal regulation as international human rights law. While humanitarian law is conceived of specifically to address the kinds of situations which arise in warfare and the dynamics which underpins them, the relevance and applicability of human rights standards is more subtle and context dependent. This chapter examines the role lex specialis occupies in international legal reasoning. It seeks to use these understandings to shed some further light on the issues of applicability where humanitarian law is concurrently applicable alongside human rights norms. In a very real sense then human rights and humanitarian law cohabit the same factual space during armed conflict. The chapter highlights some important aspects of the complex and nuanced interrelationship between these two bodies of law, focusing on lex specialis as the central bridge between them. Keywords: armed conflict; humanitarian law; international human rights law; international law; legal reasoning; lex specialis

The incarceration of transgender people is described as a "double punishment" based on lack of gender recognition and ability to gender affirm, and with their experiences and conditions in prison tantamount to torture. The purpose of this study is to illustrate the continued "double punishment" of incarcerated transgender people (in particular trans-women) and identify and describe breaches in human and gender rights and minimum standards of care. There is limited global data on the numbers of incarcerated transgender people, an identified vulnerable prison group. There are inherent difficulties for prison authorities regarding placement, security aspects and management of transgender persons. While the concerns apply to all transgender prisoners, the current literature focusses mainly on transgender women and this commentary reflects this present bias. A socio-legal approach describes and evaluates international human rights' conventions and human rights' law, soft law instruments mandating non-discriminatory provisions in the prison setting and relevant European and domestic case law. Transgender prisoners experience an amplification of trauma underpinned by lack of legal gender recognition, inability to gender-affirm, discrimination, transphobia, gender maltreatment and violence by other prisoners and prison staff. Despite obligations and recommendations in international human rights' instruments and standard operating procedures at the prison level, very few countries are able to fully uphold the human rights of and meet the needs of transgender people in prison. This study is important as it highlights the dearth of knowledge exploring human rights discourses and concerns related to the phenomenon of incarcerated transgender persons. It uniquely focusses on European and domestic law and illustrates the inherent tensions between human rights, sexual orientation and gender identity rights and security considerations regarding transgender issues in prisons. Rights assurances centre on the principles of equality, dignity, freedom of expression, dignified detention and the prohibition of inhumane treatment or punishment.

This chapter investigates the extent of applicability of human rights in the scenario of occupation, the examinations of the question relating to the interlocking relationship between international human rights law (IHRL) and international humanitarian law (IHL) are summarised and dealt with the extent necessary for accomplishing the primary objective. It presents some fundamental differences remain between IHRL and IHL. The complementary relationship between IHL and IHRL raises the question whether the threshold of applicability of common Article 3 of the GCs should be comparable to that of derogation in non-international armed conflict. The relationship between IHL and IHRL is not governed by the literal application of lex specialis, which sets aside human rights en bloc by IHL. Kretzmers model does not contemplate the application of human rights standards to battlefield or any pocket of the land in occupied territory, where an occupying power has become unable to secure situational control.Keywords: international human rights law (IHRL); international humanitarian law (IHL); Kretzmers model; lex specialis; non-international armed conflict; occupied territory

International policing is an area of exponential growth for the United Nations and other international organizations such as the European Union. International police officers are tasked with a wide array of responsibilities, including police reform, training, monitoring and executive policing. This raises the question how human rights standards become applicable to international policing. The international human rights law applicable to international policing can be derived from legal sources specifically related to UN and non-UN peace operations and through general human rights law. From a legal perspective, the compliance with international human rights may be regarded as the final test when assessing the success or failure of international police operations.

The paper relates to the actual extent of the "margin of appreciation" of national law-making power in Europe when it takes ethical issues into consideration. This occurs when the use of technoscience may affect fundamental interests. The discretion of the legislature is limited, particularly by the transnational system arising from the European legal integration within both the European Union and the Council of Europe. The two schemes of integration, although there are differences between them, converge to put national legislation under pressure, particularly when it considers ethical matters. As a matter of fact, ethical issues cannot be approached at the national level alone but must be addressed at least at the continental level. An important role in the work of shaping the ethical rules from a continental perspective is played not by the national legislatures, but by the dialogue between the different levels of the judiciary. This role is inescapable and cannot be replaced by legislation, even if it is approved in a transnational plan. The function of the case law in regulating phenomena with ethical implications is studied, taking into consideration the case of Italian Law no. 40 of 2004 concerning medically assisted reproduction. Over the last 15years, this law, which is inconsistent with many fundamental ethical principles, but has not been amended by the legislature, has been in the process of being corrected by the dialogue between European and national case law.

The adoption of Bill 21, which bans religious symbols for civil servants in Quebec, has stirred considerable debate politically and constitutionally in the province and in the rest of Canada. Neglected, however, has been a more in-depth analysis of how international human rights law often serves as an implicit frame of reference for many of the debates surrounding Bill 21. This essay focuses, in particular, on the invocation of the case law of the European Court of Human Rights, which seems to have validated bans of religious symbols in various contexts. It gives an overview of that jurisprudence and specifies the parameters within which it operates, emphasizing the complexity of translating a supranational case law into a domestic debate. It argues that whilst Quebec is less alone in banning religious symbols than is sometimes argued, the European case law needs to be handled carefully. In particular, the essay emphasizes the importance of the so-called “margin of appreciation” as heavily impacting the outcome in those cases. Although the margin suggests that there is national leeway in adopting bans based on certain national traditions and specificities, it hardly opens the door to all bans. Rather, the margin emphasizes the significance of divergences between states parties on an issue and respect for procedural safeguards. The essay concludes with some thoughts on how importing human rights arguments out of context can be perilous, but also about how the margin itself may be problematic.

This article reassesses the question of whether international human rights law fixes procedural parameters for the determination of refugee status. Based on a detailed jurisprudential analysis, the study shows that Human Rights Treaty bodies of both universal and regional aspiration contribute positively to clarifying the minimum procedural standards applicable to this aspect of refugee protection. Drawing on recent ground-breaking decisions, the study finds general agreement among these transnational human rights bodies that human rights guarantees do regulate the process of refugee status determination. Nonetheless, it equally illustrates that each treaty body frames the applicability of human rights standards to refugee status determination in a different way. The article concludes that the tension between these two dynamics of the treaty body jurisprudence – convergence in result but divergence in approach – raises certain questions about our wider understanding of the relationship(s) between refugee law and human rights law.

У статті розглядається безсторонність (неупередженість) суду як невід'ємний елемент та міра реалізації завдань справедливого суду. Зауважується, що одним із чинників, що позитивно впливає на формування громадської думки щодо судової влади та суддів безумовно, є безсторонність (неупередженість) суддів. Адже безсторонній розгляд і вирішення судових справ - один із головних обов'язків кожного судді, а також складова частина присяги судді, порушенням якої визнається, зокрема, вчинення суддею дій, що можуть викликати сумнів у його неупередженості та підірвати довіру до судової влади в цілому з боку громадськості. Статтю присвячено дослідженню сутності безсторонності суддів та визначенню її основних критеріїв з огляду на міжнародні норми, норми національного законодавства, а також практику Європейського Суду з прав людини. Зазначається, що в Європейському Суді з прав людини напрацьована багаторічна практика щодо з'ясування того, чи був національний суд, розглядаючи конкретну справу, безсторонннім у розумінні п. 1 ст. 6 Конвенції про захист прав людини та основоположних свобод. Так, п. 1 ст. 6 Конвенції вимагає, щоб «суд», що підпадає під його дію, був неупередженим. Як правило, неупередженість означає відсутність упереджень або упередженості, при цьому її наявність або відсутність можуть бути перевірені різними способами. Отже, сенс і прояви безсторонності прийнято виводити з оцінок правового поняття «упередженість», яке має окремі усталені практикою Європейського Суду критерії, пов'язані з наданням переваг одній зі сторін спору. Саме на констатації фактів упередженості і на цій основі визнання порушень правил Конвенції про справедливий суд побудована прецедентна практика Європейського Суду. Крім того, відповідно до усталеної практики Європейського Суду з прав людини наявність безсторонності відповідно до п. 1 ст. 6 Конвенції про захист прав людини та основоположних свобод повинна визначатися за об'єктивним та суб'єктивним критеріями. Європейський Суд у своїх рішеннях проводить відмінність між об'єктивним підходом, тобто визначенням, чи були судді надані достатні гарантії, щоб виключити будь обґрунтовані сумніви в цьому відношенні, та суб'єктивним підходом, тобто прагненням переконатися в суб'єктивному обвинуваченні або інтересі певного судді у конкретній справі. У статті також проаналізовані приклади випадків, у яких може постати питання щодо недостатньої безсторонності суду: перший, функціонального характеру, стосується, наприклад, виконання однією особою різних функцій в межах судового провадження, або ієрархічні чи інші зв'язки між цією та іншою особою в межах того ж провадження; другий має особистий характер і є наслідком поведінки судді у даній справі. На підставі проведеного аналізу зроблено висновок, що безсторонність є ключовою характеристикою судді, головною ознакою судової влади та основою судового процесу і вважається очевидним фактом. Безсторонність суду має означати його діяльність виключно на основі чинного законодавства, враховуючи принцип верховенства права, на підставі професійних знань і власної правосвідомості, виключаючи будь-який сторонній вплив і підконтрольність. Власне безсторонність як ознака справедливого судового розгляду означає рівне ставлення суду до учасників, вирішення спору як нейтральним і безстороннім фахівцем без надання комусь переваг. Саме такий стан речей зможе реально забезпечити право кожної особи на справедливий судовий процес та слугувати стандартом організації судочинства у правовій демократичній державі.

The legal nature of video games in terms of copyright is hard to determine. Video games are highly interactive multimedia that are made up of individual elements that are the ‘product’ of creative effort and expertise. Video games are also complex multimedia works that combine video, music, art and characters. There is a debate on which work is qualified to be copyright protected: is it the video game as a whole or the individual elements of it? To question further, under which category of protected works should they be classified? This article will shed light on the above considerations by employing a combination of doctrinal and comparative analyses. European and national legislation and case law will be analysed, with particular emphasis on four national jurisdictions: Germany, France, Greece and the UK. The article discusses the divergent opinions among academics, national and European case law, and will suggest that copyright registration of video games would provide more clarity.

International human rights law has been challenged because of its alleged inability to safeguard the rights of the most vulnerable victims of violence. Whereas in real life they are often marginalized and effectively left without adequate protection, this is not to be attributed to the absence of an appropriate normative framework but rather to the contempt, lack of enforcement and systemic neglect of their claims. This paper proposes to find a ?cure? inside international human rights law, by strengthening the mechanisms that permit a horizontal application of human rights standards in private relations. The paper is divided in four sections. The first section describes the problematic at hand, focusing in particular on violence against women and children. The three subsequent sections then analyze the avenues open to victims in order to claim a ?third-party? application of human rights treaties against non-state actors who have violated their fundamental rights.