Human Rights Bodies Research Articles

Working towards convergence of the clinical management of differences of sex development/intersex conditions and the human rights framework: A case study.

Medical treatments that aim to modify the appearance of the genitals in children who are born with a difference of sex development/intersex (DSD/I*) condition are highly controversial. Human Rights bodies worldwide have argued that such treatments are conflicting with the child's right of personal autonomy and should be legally restricted to the unique situation where the child's physical health is in danger. We here review the current status of legal initiatives in Europe that have addressed the issue of medical treatments in minors who have a DSD for which they have not been able to give personal informed consent due to their young age. The management of a 3 years old child who has congenital adrenal hyperplasia (CAH) and grows up with atypical-looking genitals is discussed. In spite of extensive psychosocial support to the child and family from birth onwards, and good medical control of CAH, the child develops signs of emotional distress, suspected to be attributable to the genital difference. Our discussions include perspectives from the multidisciplinary DSD team caring for the child, a human rights specialist, and an intersex activist. From our discussions, we conclude that with evolving medical care, new ethical and human rights challenges are raised. A truly holistic human rights approach should not only consider physical but also mental health and psychosocial and psychosexual adaptation of the child to the medical condition, when reflecting on the acceptability of medical treatments in minors for which no personal informed consent can be obtained due to their young age. In addition it is paramount to include the meaningful participation of the child in the clinical management at the earliest possible stage. Continued convergence of clinical management and the human rights framework can be realised based on constructive discussions involving all stakeholders, and with the best interest of the child - and adult that they will become - as a common goal.

Reconciling the Dual-Faceted Mandates of Quasi-Judicial Human Rights Bodies: The Working Group on Arbitrary Detention’s Prima Facie Approach to Evidence

Abstract Focusing on evidentiary approaches, this article examines the burdens and standards of proof applied at United Nations quasi-judicial international human rights bodies. These bodies have dual-faceted mandates, combining legal and human rights traditions and imperatives. However, they diverge in their approach to evidence. This article argues that the prima facie approach developed over the Working Group on Arbitrary Detention's 30 years of jurisprudence provides an appropriately flexible and conceptually coherent means of accommodating combined human rights and the judicial mandates. Nonetheless, this approach requires lexiconic and taxonomical tightening, and clarification of its standard of proof. Comparing the approaches taken by other quasi-judicial bodies, this article builds the impetus towards inter-institutional consistency. It reviews proposals such as wholesale reversal of the burden of proof onto Governments. It highlights the drawbacks of that unilateral type of burden and the risks that it would introduce further uncertainty for parties to proceedings, may cause onerous difficulties for claimants, and would potentially flood the human rights institutions with unsubstantiated claims.

In-depth Review: Legal review on human rights enforcement in the ASEAN and EU context

ASEAN is one of the regional organizations without an inter-governmental regional human rights machinery. In addition, ASEAN must respond to the new phenomenon that human rights are no longer merely a problem within a country, but have become a problem between countries. On this basis the author carries out a legal comparison, because one of the points stated in the objectives in The ASEAN Charter, namely: respecting fundamental freedoms, promotion and protection of human rights, and promotion of social justice, as well as the establishment of an ASEAN human rights body, as a step to guarantee more concrete human rights certainty in ASEAN. The method used in this research is legal research with a common-core method approach which in general is the application of the functional method which is expanded by using the law in context method. The aim of this research is to unify the mechanisms for law enforcement and protection of human rights in ASEAN which are related to the authority of regional human rights institutions in deciding cases of violations of human rights so that they are in accordance with the objectives contained in the ASEAN Charter.

Immunity of a lawyer in a civil proceeding

The article carries out a legal analysis of issues related to the characterization of the content of the concept of legal immunity and the features of the procedural immunity of a lawyer, as a representative of a participant in a case in civil proceedings to implement the function of procedural representation in court of the interests of a person (physical, legal) by taking procedural actions on his behalf with the aim of passing a legal and justified court decision in its interests.
 It is emphasized that during the period of reforming the national legal system of Ukraine as a whole and its individual elements, which is constantly in dynamic development and this leads to the emergence of new legal norms and the need to improve the existing rules of behavior in our society in order to achieve civilized and humane approaches in ensuring development in Ukraine, a social state with a stable form of law-making and legal regulation.
 Human and citizen rights are elevated to the rank of the European standard, and therefore require effective protection by national courts.
 It has been established that judicial protection will be effective only when not only the priority of a person's interests is achieved, but also the provision of qualified legal assistance through the institution of advocacy is guaranteed by the state.
 Enshrining in Article 59 of the Constitution the right of everyone to professional legal assistance [1] and the adoption of the Law of Ukraine "On Advocacy and Advocacy” [2] did not remove the relevance of questions about the legal nature and social status of this human rights body, about guarantees for the protection of the lawyer's interests in the implementation him of professional activity in civil justice.
 The article provides the author's definition of the concept of immunity of a lawyer and reveals its procedural content and highlights its features.

An Examination Of Access To Reporting Mechanisms Within Regional Human Rights Systems

Human rights, a universal entitlement, face infringements that demand robust protection mechanisms. Instances of violations, whether by individuals or governments, underscore the necessity of vigilant monitoring. Regional human rights systems therefore play a pivotal role as the next resort when national remedies prove insufficient. This paper examines and analyzes the reporting mechanisms employed by regional human rights bodies. It asserts that these mechanisms are crucial in guiding reporting parties and ensures redress for contraventions committed by member states. The main argument revolves around the significance of reporting mechanisms as a tool for preserving the rights of regional body members. The research considers the statutes, laws, and rules governing each regional body, and offers an insight into their respective frameworks. Hence, a doctrinal methodology was adopted using primary and secondary sources. Findings reveal the diversity of mechanisms in place across regional bodies by discussing their role in safeguarding human rights. The paper concludes by suggesting improvements to regional bodies to enhance accessibility and ensure member states' compliance with established human rights standards. Recommendations include procedural enhancements in reporting mechanisms, harmonization of standards across regional bodies, and increased public accessibility.

Climate Change Litigation before International Human Rights Bodies: Insights from Daniel Billy et al. v. Australia (Torres Strait Islanders Case)

Abstract The article examines Daniel Billy et al. v. Australia, also known as the Torres Strait Islanders case, decided by the United Nations Human Rights Committee. The case stands out as the first instance in which an international (quasi-) judicial body has found human rights violations in the context of an individual complaint concerning climate change. The article sets out three main considerations arising from the case. First, it delves into the specificities of the case in relation to some of the common constraints to climate complaints before international human rights bodies. Second, it outlines the distinctive aspects of human rights arguments when applied to climate change adaptation, as opposed to mitigation. Third, it underscores the need to further investigate the multidimensional impact of climate change litigation before international human rights bodies.

Концептуальные основы влияния практики межгосударственных органов по правам человека в национальное законодательство государств

The article examines some theoretical aspects of the influence of the practice of interstate human rights bodies on the national legislation of states. The article analyzes the conditions under which it is possible to implement the positions of interstate human rights bodies in national legislation. And the conditions under which this practice does not conflict with the sovereign rights of the state.

Толкование правовых категорий «презумпция невиновности» и «разумный срок судебного разбирательства» в практике межгосударственных органов по правам человека (сравнительный анализ)

The presumption of innocence and a reasonable time of trial are the fundamental guarantees of a person who is a participant in criminal proceedings. The comparative legal analysis examines the legal positions of intergovernmental human rights bodies regarding such elements of the right to a fair trial as the «presumption of innocence» and the «reasonable time of trial».

Advisory Opinion on Obligations of States in Respect of Climate Change: Potential Contribution of Human Rights Bodies

Abstract On 29 March 2023, the UN General Assembly adopted a resolution requesting an advisory opinion from the International Court of Justice on the obligations of states in respect of climate change. The icj’s opinion, if given, will be the first of an international court determining the elements of human rights obligations in the context of climate change. These issues have already been grappled with by UN human rights treaty bodies. I argue that the icj is entitled to take account of these jurisprudential developments, and should do so.

Monitoring second-order compliance in the African human rights system

This article examines the mechanisms and instruments employed by the three main regional African human rights bodies – the African Commission and African Court on Human and Peoples’ Rights and the African Children’s Rights Committee – to monitor compliance with their decisions and judgments. Based on the assumption that second-order compliance monitoring contributes to greater effectiveness of human rights institutions and increased compliance with their pronouncements, we discuss the monitoring tools used by the institutions themselves as well as the roles of political monitoring and monitoring by civil society. Based on a stock-taking exercise we find that all three African human rights bodies still have much room for improving both the quantity and the quality of their monitoring instruments and processes. Acknowledging that the three bodies may to some extent be legally and politically constrained with respect to the use of some of these, and recognising that the AU’s political organs mostly abstain from exercising the second-order compliance monitoring functions assigned to them, the article argues that civil society plays a critical role in contributing to such monitoring, a role that should be expanded upon and researched further.

Towards a more effective and coordinated response by the African Union on children’s privacy online in Africa

The development and expansion of digital technologies in Africa have brought invaluable opportunities for the realisation of children’s rights. However, the significant growth of internet connectivity and ICT access has also raised concerns about children’s online safety and privacy. With growing concerns on children’s privacy and personal data protection, there is a need for robust harmonised standards and regulatory frameworks to address all aspects of children’s privacy online. Through desk review, this article assesses the extent to which children’s right to privacy online and personal data is protected and integrated in the standards and regulatory frameworks of the African Union. An assessment of the applicable instruments and jurisprudence of the key human rights bodies indicates that children’s privacy online and data protection are not adequately addressed as there is limited or no focus on the protection of children’s personal data online. In most instruments related to cybersecurity, there are no explicit provisions relating to the protection of children’s personal data and childrenare only mentioned in provisions on child pornography. The article argues that children deserve specific protection as a vulnerable group hence the urgent need to explicitly protect children’s personal data and privacy in the human rights instruments adopted at the African Union level as it is the approach in the European Union’s General Data Protection. The article further argues that there is a need to adopt more effective measures by the African Union and its organs to ensure that children’s privacy in all its aspects is protected in the digital sphere.

Evaluating the (in)sufficiency of Africa’s response towards economic and psychological violence against women

Violence against women is a practice that persists in all societies across the globe. The range of actions and omissions that amount to violence has evolved over time, to recognise harmful practices that do not necessarily result in physical harm. Such actions or omissions include economic and psychological forms of violence. The evolving definition of violence is reflected in many global and regional human rights instruments. However, the approach to such recognition and measures proposed to address economic and psychological forms of violence vary considerably from one instrument to another. This article assesses the extent to which economic and psychological forms of violence are addressed in the norms and standards of the African Union. A systematic review of the applicable instruments and the jurisprudence of key human rights bodies reveals that the recognition of economic and psychological forms of violence rarely goes beyond the definition clause of the respective instruments. As a result, jurisprudential engagement on, and the framing of measures for response tothese forms of violence is limited. The failure to adopt a consistent, robust and purposive approach to violence, which articulates measures necessary to address all the forms of violence, undercuts the protection available towomen who suffer from economic and psychological forms of violence. This article makes the case that consistent recognition and specific articulation of economic and psychological forms of violence as distinct types of violence, asin the approach of the Istanbul Treaty, is necessary to fulfil the promise of protection from ‘all forms of violence’. Such express recognition in multilateral instruments is important to influence domestic law to follow suit.

The Right to Bail in Seychelles: Implementing Article 9(3) of the International Covenant on Civil and Political Rights

Abstract Seychelles acceded to the International Covenant on Civil and Political Rights (iccpr) in 1992. Article 9(3) of the iccpr provides for circumstances in which an accused may be released on bail. Article 18(7) of the Constitution of Seychelles (2008) provides for the grounds on which a court may decline to release an arrested or accused person on bail. Article 48 of the Constitution requires Seychellois courts to, inter alia, refer to international treaties and the practice/jurisprudence of international human rights bodies when interpreting constitutional rights. This article illustrates the drafting history of Article 9(3) of the iccpr and how it has been interpreted by the Human Rights Committee. It also highlights the right to bail under the African human rights system. Based on over 250 cases of the magistrate’s court, Supreme Court, Constitutional Court and Court of Appeal decided between 1998 and 2023, the article discusses the extent to which the courts’ jurisprudence complies with the practice and/or jurisprudence of the Human Rights Committee on the following issues: the right to bail, courts with jurisdiction to grant bail, factors courts consider in making bail decisions, burden of proof in bail matters, bail pending appeal and court’s power to revoke bail. It is argued, inter alia, that although the jurisprudence on bail substantially complies with the standards set by the Human Rights Committee, there are instances in which some of the courts’ decisions are contrary to these standards. The article recommends that courts should ensure that the jurisprudence on bail complies with the principles developed by the Human Rights Committee.

THE ARMENIAN CONFISCATION LAW OF 2020CONSIDERING THE EUROPEAN STANDARDS

The subject of this paper is a synthetic presentation of the basic standards of the Council of Europe on the criminal measure of confiscation of property, notably its extended forms. Due to the considerable severity of this mechanism and the potential violations of fundamental rights that might result from it, extended confiscation has repeatedly been the subject of ECtHR jurisprudence. The text presents the conclusions drawn from the basic rulings of the Strasbourg Court in this regard. Against this background, the author presents the essential elements of the extended confiscation system recently adopted in Armenia. A comparison of these models leads to the conclusion that the Armenian model goes far beyond the standards of the Council of Europe, which raises doubts about its compatibility with the body of human rights, as decoded in the ECHR and articulated by the ECtHR. The author attempts to predict the possible consequences of such a confrontation.

A New Theoretical Model of the Right to Environment and its Practical Advantages

Abstract Despite significant developments at the national, regional and international levels, to recognise the right to environment as a human right, this right is still under-theorised and contested. The challenge of giving a clear substance to such a standalone right is one that must urgently be taken up. Drawing on the NIC theory, this article develops a new model of the right to environment to serve three purposes: first, to shed light on the nature, scope and content of this right; second, to illustrate that this right can be considered as existing on three levels: individual, collective and global; and third, to explore the logical relationships between this right and already recognised human rights. This new model brings about various advantages at different levels. In particular, it allows for guiding practice for a range of actors from NGOs, human rights commissions and judges to governments and the UN human rights bodies.

Legislative Regulation of Certain Guarantees of the Status of the Human Rights Commissioner in the Constituent Entities of the Russian Federation (Based on Materials of the State Duma)

Legislative Regulation of Certain Guarantees of the Status of the Human Rights Commissioner in the Constituent Entities of the Russian Federation (Based on Materials of the State Duma)

Gendering the Pandemic: Women's Health Disparities From a Human Rights Perspective.

As COVID-19 keeps impacting the world, its impact is felt differently by people of different sexes and genders. International guidelines and research on gender inequalities and women's rights during the pandemic have been published. However, data from Taiwan is lacking. This study aims to fill the gap to increase our knowledge regarding this issue and provide policy recommendations. This study is part of a more extensive project in response to the fourth state report concerning the implementation of the Convention on the Elimination of All Forms of Discrimination against Women in Taiwan in 2022. We have drawn on the guidelines and documents published by the United Nations human rights bodies, conducted interviews with advocacy and professional practitioners, and hosted a study group comprising students and teachers from the National Taiwan University College of Public Health to supplement the interview data. The data were analyzed thematically. The results include five themes: (1) particular health risks to carers (primarily women); (2) COVID-related measures' impact on women's health and health behaviors; (3) highly gendered psychological maladjustment; (4) increase in gender-based violence and domestic violence; and (5) mental health inequities and intersectionality. The study has global implications for societies of similar sociopolitical contexts and developmental statuses. To truly live up to the standard of CEDAW and other international human rights principles, we ask that central and local government be more aware of these lived experiences and adjust their policies accordingly, accounting for gender sensitivity.

Using Terms and Conditions to apply Fundamental Rights to Content Moderation

AbstractLarge online platforms provide an unprecedented means for exercising freedom of expression online and wield enormous power over public participation in the online democratic space. However, it is increasingly clear that their systems, where (automated) content moderation decisions are taken based on a platformʼs terms and conditions (T&Cs), are fundamentally broken. Content moderation systems have been said to undermine freedom of expression, especially where important public interest speech ends up suppressed, such as speech by minority and marginalized groups. Indeed, these content moderation systems have been criticized for their overly vague rules of operation, inconsistent enforcement, and an overdependence on automation. Therefore, in order to better protect freedom of expression online, international human rights bodies and civil society organizations have argued that platforms “should incorporate directly” principles of fundamental rights law into their T&Cs. Under EU law, and apart from a rule in the Terrorist Content Regulation, platforms had until recently no explicit obligation to incorporate fundamental rights into their T&Cs. However, an important provision in the Digital Services Act (DSA) will change this. Crucially, Article 14 DSA lays down new rules on how platforms can enforce their T&Cs, including that platforms must have “due regard” to the “fundamental rights” of users under the EU Charter of Fundamental Rights. In this article, we critically examine the topic of enforceability of fundamental rights via T&Cs through the prism of Article 14 DSA. We ask whether this provision requires platforms to apply EU fundamental rights law and to what extent this may curb the power of Big Tech over online speech. We conclude that Article 14 will make it possible, in principle, to establish the indirect horizontal effect of fundamental rights in the relationship between online platforms and their users. But in order for the application and enforcement of T&Cs to take due regard of fundamental rights, Article 14 must be operationalized within the framework of the international and European fundamental rights standards. If this is possible Article 14 may fulfil its revolutionary potential.

The rise of international climate litigation

AbstractInternational climate litigation is on the rise, with international courts and tribunals being asked to offer advisory opinions on climate change, several rights‐based climate change claims being put forward before international human rights bodies and courts, and international economic tribunals increasingly being engaged with the issue. This special issue on international climate litigation examines these trends and seeks to better understand how international litigation may foster (or, sometimes, impede) action on climate change. In this introduction to the special issue, we offer our reflections based on some of the central themes of the special issue. In particular, we underscore the need to think strategically about the possible (intended and unintended) outcomes of international climate litigation.

Legal & H.R. Centre and Centre for Reproductive Rights (on behalf of Tanzanian girls) v. Tanz. (Afr. Committee of Experts on the RTS & Welfare of the Child (ACERWC))

On September 15, 2022, the African Committee of Experts on the Rights and Welfare of the Child (hereinafter ACERWC or Committee) issued its decision in the matter of Legal and Human Rights Centre and Centre for Reproductive Rights v. Tanzania. This case is related to the practice of forced pregnancy testing in schools in Tanzania and the later expulsion of girls who are found to be pregnant and/or married. The Communication was presented by the Legal and Human Rights Centre and the Centre for Reproductive Rights, on behalf of Tanzanian girls. This decision represents an important contribution to the line of international cases advancing the rights of girls under 18 years old, in particular in the areas of sexual and reproductive health and education, exemplified by increasing jurisprudence issued by regional human rights bodies.