Human Rights Bodies Research Articles

The Impact of the Universal Periodic Review and the State Reporting Procedure of UN Treaty Bodies on the Prosecution of Hate Crimes: The Hungarian Experience

AbstractThis article contributes to the debate about the impact of UN human rights review mechanisms on the ground, focusing on the issue of prosecution in hate crimes cases. National legislative or institutional changes presented as implementation measures do not necessarily reflect reforms in practice or genuine commitment of the government to comply with the recommendations of international human rights bodies. Rigorous follow-up of recommendations is missing from the UN review mechanisms—a gap which is frequently filled by domestic NGOs. The article focuses on the case of Hungary and those review mechanisms which are the most significant ones concerning hate crime-related advocacy, namely, the Universal Periodic Review and the state reporting system of the Human Rights Committee and the Committee on the Elimination of Racial Discrimination. The impact assessment is based on a content analysis of recommendations and on semi-structured interviews with representatives of domestic NGOs advocating for more efficient prosecution of hate crimes. The author argues that more emphasis should be put on a thorough assessment of national reports and communications from the perspective of whether they reflect significant and long-term changes in practice. At the same time, state representatives involved in the Universal Periodic Review and expert members of UN treaty bodies should strive for a more detailed expression of recommended guidelines in order to adequately address the nuanced reality of human rights violations.

Dignity, Social Reintegration of Prisoners, and the New Penal Power: European Human Rights, Experiences of Belgian Prisoners, and Professional Practices.

Over the last 30 years, prisoners' dignity and fundamental rights have increasingly been protected by European human rights bodies such as the European Court of Human Rights and the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. This protection is aimed particularly at the traditional power relations between prisoners and uniformed staff. More recently, social reintegration of prisoners has also been recognized by these European human rights standards as a fundamental element of human dignity and an equally important aim of imprisonment as retribution and deterrence. However, it is also accepted that some offenders may be too dangerous to be returned back to society. Psychiatric/psychological assessments are a major element in this decision-making. This "new penal power" receives much less attention in human rights protection. This article compares three intertwining perspectives on this issue: the European human rights perspective on dignity and social reintegration; the experiences and mental suffering of Belgian prisoners who find themselves being stuck in prison as a result of structural problems in the risk assessment and risk management practices; and the professional perspective on how professional standards and good practices based on scientific insights might alleviate some of these threats to human dignity.

Политико-правовые аспекты защиты конституционных социальных прав граждан в России

Introduction: the paper analyzes the legal features of the formation of the legal positions of the European Court of Human Rights and the Constitutional Court of the Russian Federation in the field of protection of social rights of citizens in the Russian Federation. As the practice of law enforcement and human rights activities shows, the constitutional social rights of Russian citizens are most often violated. For this purpose, the court rulings issued in the field of protection of social rights by citizens have been studied. Using the methods of scientific cognition, first of all, the system analysis of judicial and regulatory legal acts, the peculiarities of the formation of legal positions of judicial legal instances of the Russian and international level are revealed. Results: the study has revealed the existence of controversial issues in the formulation of legal positions of the interstate human rights body and the Constitutional Court of the Russian Federation. Conclusions: during the formulation of legal positions by the Constitutional Court of the Russian Federation, the principles of protection of social rights of citizens are formulated; however, when making decisions by the European Court of Human Rights, a political aspect is often manifested.

Monitoring Prisons in Europe: Understanding Perspectives of People in Prison and Prison Staff

Prison monitoring has been promoted by international human rights bodies as a way to support the prevention of torture and ill-treatment in prison. However, there has been very limited examination of the operation of prison-monitoring bodies, especially from the perspective of those most affected by their recommendations: those who live and work in prisons. This article draws on interviews conducted with people living and working in a Scottish and a Norwegian prison to explore how they perceive a long-standing prison-monitoring body, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). The article provides an examination of the benefit and utility of CPT recommendations from the point of view of people in prison and prison staff. The study further reveals that the effectiveness of CPT monitoring in prisons may be considered in terms aside from state implementation of recommendations and should include how people in prison see its work, its impact, its power to persuade, and its connection to the outside world. Through taking a prison-centered approach, the article contributes to wider discussions on whether and how human rights frameworks can alter experiences of punishment.

How are the Paris Principles on NHRIs Interpreted? Towards a Clear, Transparent, and Consistent Interpretative Framework

ABSTRACT Although they fall outside of the traditional sources of international law, the Principles relating to the Status of National Institutions (Paris Principles) have enjoyed an authoritative value in international human rights law. International human rights bodies have increasingly permitted Paris Principles-compliant national human rights institutions (NHRIs) to participate in their activities not as part of the state but in the institutions’ own capacity, and have required states to establish NHRIs or strengthen existing NHRIs in accordance with the Paris Principles. How, then, are the Paris Principles interpreted? This study critically analyses the three principles governing the interpretation of the Paris Principles – the dynamic interpretation principle, the normative gradation principle, and the overall evaluation principle – through a comprehensive examination of the practice of the Global Alliance of National Human Rights Institutions (GANHRI), and makes recommendations for their improvement and consolidation.

Alice Margaria, The Construction of Fatherhood: The Jurisprudence of the European Court of Human Rights (Cambridge University Press, 2019, xiii + 191 pp, £85) ISBN 978-1-108-47509-9 (hb)

The question of gender equality before the European Court of Human Rights (ECtHR)—one of the most powerful human rights bodies in Europe and beyond—is not only underresearched but, to the extent that it has been the subject of research, such research has mostly focused on understanding the status of women and women’s rights, leaving aside questions about men and masculinities.1 Alice Margaria’s book The Construction of Fatherhood: The Jurisprudence of the European Court of Human Rights2 is the first comprehensive study to inquire into gender equality before the ECtHR from the perspective of men, being a welcome and much needed addition to the literature on gender legal studies. The book starts from the idea that gender equality requires not only changing women’s traditional roles, but also men’s roles, in particular that of breadwinners, which oftentimes limit men’s ability to be involved in childcare and other domestic tasks. Keeping...

The human rights turn in climate change litigation and responsibilities of legal professionals

Climate change is already being felt around the world, impacting a range of human rights including ultimately the right to life. While a healthy environment is a pre-condition for the enjoyment of rights, the environment is not mentioned in the foundational human rights document – Universal Declaration of Human Rights – nor is it specifically protected in subsequent international human rights treaties. This artificial division is partially a function of the separate development of international human rights and environmental law in the last century, which today needs urgently to be bridged. Progress is slowly being made, such as the 2021 Resolution recognising the right to a healthy environment by the UN Human Rights Council and the various petitions being lodged before human rights bodies. This column discusses the (long overdue) recognition of the human rights/environment nexus and the subsequent human rights turn in climate change litigation. In light of the challenges still faced when addressing the impacts of climate change under human rights law, we engage in (self-)reflection on the professional responsibilities of judges/decision-makers, lawyers, and scholars as active participants in the development of the law as well as the struggle for climate justice. We urge these legal professionals to be aware of the power they have in shaping these developments, and discuss how their role can be performed responsibly.

What Does it Mean to Say that the Court of Justice is not a Human Rights Institution? A Critical Appraisal

Abstract What role does the Court of Justice of the EU (CJEU) and EU law play in elaborating the rights and principles embodied by the Universal Declaration of Human Rights (UDHR)? Over the last 20 years, human (or ‘fundamental’) rights have become a constant part of the way the CJEU interprets and applies EU law. In a period where fundamental rights and values are increasingly under threat both globally and in Europe, judicial institutions remain an important last bastion of protection. Commenting on Judge Rosas’ (2007) observation that the CJEU is not in fact a human rights Court, three critical questions are derived: The first question is the most related to this special issue. What does the development of the CJEU—an institution with human rights responsibilities—mean for general international human rights law? The second takes up Judge Rosas’ observation that the CJEU, unlike the Strasbourg Court, has extensive judicial responsibilities beyond human rights. What does the development of EU human rights law mean for EU law more broadly? Finally, if Judge Rosas is right that the CJEU is not a human rights Court, what does that mean for its relationship to the European Court of Human Rights (ECtHR) and the other organs of the Council of Europe? In answer to this last question, the article cautiously advances the argument that the very fact that the CJEU is not a human rights Court implies a more robust role than Judge Rosas suggests for external review of EU law by international human rights bodies.

Sexist Hate Speech and the International Human Rights Law: Towards Legal Recognition of the Phenomenon by the United Nations and the Council of Europe

For many women and girls sexist and misogynistic language is an everyday experience. Some instances of this speech can be categorized as ‘sexist hate speech’, as not only having an insulting or degrading character towards the individuals to whom the speech is addressed, but also resonating with the entire group, contributing to its silencing, marginalization and exclusion. The aim of this article is to examine how sexist hate speech is handled in international human rights law. The argument derives from the claim than that legal discourse should distinguish between ‘sexist speech’ and ‘sexist hate speech’, and that the later may be qualified as a form of violence against women. Then it analyses the approaches of two human rights protection systems—the United Nations and the Council of Europe system—towards the phenomenon of sexist hate speech, by taking their position towards hate speech in general as a point of reference. In both systems, sexist hate speech is being addressed more eagerly under the gender equality framework, including counteracting violence against women, than in their interpretation of hate speech under general human rights law. The article argues the importance of recognizing and addressing sexist hate speech both within the framework of gender equality instruments and anti-hate speech framework established by international human rights bodies.

ILO Contributions to the Jurisprudence of International Human Rights Bodies

The paper addresses the role of the International Labour Organization (ILO) in the consideration of cases and in the interpretation of international human rights instruments by the Committee on Economic, Social and Cultural Rights and the European Court of Human Rights. As labour rights form part of internationally recognized human rights the author attempts to evaluate the penetration of ILO standards and legal reasoning into the adjudication of human rights cases and interpretation of human rights instruments by other international bodies. The analysis of the jurisprudence of the CESCR and the ECtHR demonstrates that the ILO standards and the legal reasoning are always referred to in the cases related to labour rights and serve as a source of “substantial filling” of both the International Covenant on Economic, Social and Cultural Rights and the European Convention on Human Rights.

Manufacturing Statelessness

AbstractHaving recently emerged from its unenviable status as the runt of international law, the phenomenon of statelessness nonetheless eludes traditional international legal instruments. Confronted with questions of nationality that typically fall within the domain of sovereignty, international and regional human rights bodies struggle to rein in the increasingly creative measures that states adopt to obscure the production and persistence of statelessness. This Article uncovers and dissects the different ways in which states manufacture statelessness not through explicitly discriminatory laws and unequal treatment, but through manipulating ostensibly neutral criteria for nationality. The Article identifies three such criteria that are not traditionally considered “suspect” categories for the grant or denial of nationality: time, territory, and administrative practice. It also suggests doctrinal, policy, and strategic tools for identifying and responding to the types of statelessness that are not a collateral consequence of state failure or incompetence, but the outcome of state intentionality.

Criminalisation of sex workers: rethinking the public order

ABSTRACT While there is no European consensus on the most appropriate prostitution policies, in most European countries selling sex itself is not criminalised. Exceptions are most of the former communist/socialist countries of the Central and Eastern Europe and Central Asia, including Croatia, where it is a misdemeanour/administrative offence against public order and peace, despite recommendations by human rights bodies to decriminalise sex workers. The legitimacy of protecting public order through criminalising selling sex has remained largely unchallenged and there is a lack of empirical studies examining the application of those provisions from a human rights perspective. This article addresses the gap and provides a human rights analysis of the case-law of the municipal misdemeanour courts in the two largest Croatian cities (Zagreb and Split), in the period from 2014 to 2019 concerning the offence of ‘falling into prostitution’. We show how laws criminalising sex workers are not only ineffective, but are also harmful for public order. Not only does the indeterminacy of the offence and its different interpretations fail to fully respect the principle of legality, police and judicial practice show discrepancies with the human rights standards, which impacts primarily women in vulnerable situations, thus raising the questions of gender (in)equality and intersectional discrimination.

Incidental Jurisdiction in Human Rights Litigation: Surprising Absence and Rival Techniques

Human rights courts and bodies do not rely on the concept of incidental jurisdiction. As far as I am aware, they never have. Given that these courts and bodies are in many ways typical examples of international courts, this is at first glance surprising. However, a closer look suggests that human rights bodies employ rival techniques to tackle the same problem to which incidental jurisdiction is supposedly responding. This essay sets out, first, that there is nothing unique about the institutional set up of human rights courts and human rights bodies in international law that might explain the absence of incidental jurisdiction. Second, I offer a plausible reconstruction of this absence. I argue that it is not only a rational response to the particular demands of human rights litigation, but that it may even be normatively preferable. The tension between dispute settlement and state consent is modified and heightened in international human rights law; this justifies treating incidental questions with the weight usually attached to the main issues of a case by turning them into questions of treaty interpretation. Third, I illustrate these rival techniques in two areas: jurisdiction in international human rights law, and cases involving armed conflicts.

Advancing Reproductive Justice in Latin America Through a Transitional Justice Lens

Reproductive autonomy is a pivotal part of women’s access to equal citizenship, yet it has not been included in any international nor regional human rights treaty. In the past decades, the U.N. Committees, notably the CEDAW Committee, and regional human rights bodies, particularly the Inter-American System for the Protection of Human Rights, have timidly advanced reproductive justice through their jurisprudence, including through the use of reparations. Drawing from the standards of reparations developed in the field of transitional justice, human rights bodies increasingly rely on reparations to enhance the transformative effects of their decisions. These reparations intend to include a gender-perspective in their design and aim to ensure the non-repetition of human rights violation, not only to the victim, but to society. Constitutional courts in Latin America are increasingly relying on the standards of reparations in their own decisions, including in those on reproductive justice. In this Article, I analyze two recent rulings from Latin American constitutional courts–one from Colombia and one from Ecuador–to understand how courts can use reparations to advance reproductive justice. I analyze these particular rulings for two reasons: (1) Both rulings have the potential to develop reproductive jurisprudence in the region where high courts have traditionally imported international and comparative law to resolve legal debates over reproductive rights; and (2) Both rulings challenge the traditional concept of reparations and offer an opportunity to rethink how the remedy can be deployed in a human rights context.

New aspects of the right to life through the lens of the Inter-American Court of Human Rights

In the Inter-American Court of Human Rights case-law the question of the right to life is not new: the Court emphasized on numerous occasions the necessity for the states to observe both negative and positive obligations stemming from Article 4 of the American Convention on Human Rights. However, recent IACtHR judgments show that the socio-economic dimension of the right to life is increasingly being taken into account by the Court when interpreting Article 4 in conjunction with other Articles of the Convention. It includes the right to a healthy environment, the right to health, the right to water, food and other aspects, without which a decent life is unthinkable. The legal provisions of the IACtHR decisions have an impact on other judicial and advisory human rights bodies such as the UN Human Rights Committee and the European Court of Human Rights. The article examines selected IACtHR decisions involving the right to life, taking into account new, not previously mentioned aspects, such as reproductive rights, the right to health and the right to a healthy environment.

Disaggregating Slavery and the Slave Trade

International law prohibits slavery and the slave trade as peremptory norms, customary international law prohibitions and crimes, humanitarian law prohibitions, and non-derogable human rights. Human rights bodies, however, focus on human trafficking, even when slavery and the slave trade—and not human trafficking—are enumerated within their mandates. International human rights law has conflated human trafficking with slavery and the slave trade. Consequently, human trafficking has subsumed the slave trade and, at times, slavery prohibitions, increasing perpetrator impunity for slavery and the slave trade abuses and denying full expressive justice to survivors. This Article disaggregates slavery from the slave trade and slavery and the slave trade from human trafficking, arguing that untangling these prohibitions is important for several reasons. First, slavery and the slave trade persist as harms today as evidenced by, inter alia, kafala system abuses in Lebanon, slave market auctions in Libya, and Islamic State (IS) crimes in Iraq and Syria perpetrated against Yazidis. Second, slavery and the slave trade enjoy peremptory status, offering the highest form of protection in international law. Human trafficking does not. Third, naming and addressing violations of the slave trade—the precursory acts to slavery—helps to identify, provide redress, and prevent slavery and slave trade perpetration. Distinguishing the slave trade from slavery, and the slave trade and slavery from human trafficking, affords additional avenues for redress, maximizing full expressive accountability for states’ obligations to prohibit slavery and the slave trade. Finally, delineating these prohibitions provides legal clarity and accuracy, both by correctly characterizing harms and by properly interpreting treaty provisions and jurisdictional mandates. In the short term, playing “fast and loose” with distinct prohibitions undermines international law’s institutional legitimacy. In the long term, state practice and opinio juris that moves away from enforcing against slavery and slave trade harms might lessen or even erode these protective customary international law prohibitions.

Abandoning Gender “Identity”

International instruments fail to specify the meaning of gender identity. Yet gender identity has been invoked as a prohibited ground of discrimination, particularly in cases concerning trans persons. Trans existences fall outside the expectation of a correspondence between sex and gender. “Trans” is an umbrella term referring to people who do not identify with the sex attributed to them at birth. This broad definition encompasses pre-operative and post-operative transsexuals, as well as persons who have not undergone any medical intervention and do not conform to the social norms of expression and self-identification imposing the binary. Regional conventions do not define the concept of gender identity either. Documents issued by the United Nations (UN) and regional human rights bodies frequently rely on the category, without any clear explanation of the notion, or of what makes gender identity different from gender as such. Relying on Lacanian psychoanalysis, this essay argues that gender is an identity per se and challenges international law's treatment of gender and gender identity as distinct categories. Underlying this essay is the view that questioning the shape that the law gives to “gender identity” is the preliminary step to evaluating what protections human rights law can or cannot offer to individuals.

The Function and Legal Status of Interim Measures Indicated by Various Human Rights Bodies and the International Court of Justice

The Function and Legal Status of Interim Measures Indicated by Various Human Rights Bodies and the International Court of Justice

Monitoring the implementation of its own decisions: What role for the African Commission on Human and Peoples' Rights?

The African Commission on Human and Peoples' Rights in recent years has put in place various measures to monitor the implementation of its decisions on individual communications. These include a series of panels and seminars, amendments to its Rules of Procedure, extending the mandate of its Working Group on Communications, clarifying more expressly roles for national human rights institutions and civil society organisations, and calling on states to establish focal points and other procedures at the national level. This article considers the effectiveness of these measures and critically evaluates the role of the African Commission in monitoring the implementation of its decisions. The article draws on the findings of a four-year research project conducted by the University of Bristol's Human Rights Implementation Centre, in collaboration with the Centre for Human Rights at the University of Pretoria; the Human Rights Centre at the University of Essex; and the Middlesex University. This project tracked the implementation of selected decisions on individual communications, from the regional and UN human rights bodies, against nine countries from Africa, the Americas and Europe. These decisions were used as case studies to identify and examine the processes in place at the national, regional and international levels, to monitor and facilitate implementation. Among the themes explored was an examination of the extent to which there may be a difference in the discourse and behaviour of various domestic actors depending on which body issued the decision. In relation to decisions of the African Commission, this research identified that while there has been increased attention paid by the Commission to the issue of monitoring the implementation of its decisions, it nevertheless lacks strategic direction and there is a risk that the momentum and opportunities created by these initiatives will be lost without further strategic and institutional development by the Commission to clarify its role.

Zakres zobowiązań stron konwencji Rady Europy w sprawie zapobiegania i zwalczania przemocy wobec kobiet i przemocy domowej

Violence against women, in particular domestic violence, is a form of discrimination against women and a human rights violation, which has been voiced in recent years by international human rights bodies, including the UN Committee on the Elimination of Discrimination against Women and the European Court of Human Rights. The Council of Europe Convention on preventing and combating violence against women and domestic violence, which was adopted on 7th April 2011, derives from this output. The Convention, being a milestone in combating violence against women, creates a comprehensive legal framework to prevent violence, to protect victims and to end with the impunity of perpetrators. The paper aims to examine and clarify the main obligations of the State Parties to this treaty. The core part of the study analyzes the obligation to define and criminalise various forms of violence against women (such as physical, psychological and sexual violence, stalking, forced marriage, female genital mutilation, forced abortion and forced sterilisation, sexual harassment). It also focuses on obligations linked to investigation and prosecution of these crimes. Special attention is paid to protective measures such as restraining or protection orders. Another major objective of the paper is to indicate the most significant consequences to the Polish legal order in case of Poland’s accession to the treaty. Despite taking part in the drafting process, Poland did not finally sign up the Convention. However, the Polish government takes into account a possibility of its ratification. In Author’s opinion, Poland’s accession to this treaty is highly advisable. What is more, only few provisions of the present Polish law would demand to be conformed to the Convention.