Substantive Human Rights Research Articles

Economic Sanctions Against Individuals and Human Rights Law

Abstract The paper discusses human rights implications of economic sanctions against individuals, typically asset freezing. It shows that it is now largely accepted that states (and the EU), when implementing sanctions imposed by other actors (the UN) remain responsible for the compatibility of the implementing measures with human rights and that individuals targeted by sanctions are within their jurisdiction. The paper also demonstrates that economic sanctions against individuals may violate certain procedural rights, mainly the right to be heard and the right to effective remedies. Finally it argues that although sanctions could also interfere with substantive human rights, such as the right to property or the right to privacy, (quasi)judicial bodies have been reluctant to discuss their effects on these rights.

Semenya v. Switzerland (European Court of Human Rights), No. 10934/21, July 11 2023

The issue of how to accommodate non-binary athletes in female sport whilst maintaining a sense of fair competition is something that many sports have struggled with in recent years. Whilst there has been debate about ethical and scientific justifications for imposing eligibility restrictions on athletes with sex variations, the potential impact of human rights norms on the policies of sport governing bodies in this area has received only peripheral attention. However, the recent decision of the European Court of Human Rights in Semenya v Switzerland, seems to have changed that narrative. In accepting jurisdiction and then finding Switzerland had failed to adequately protect Miss Semenya in relation to human rights concerns over eligibility restrictions imposed by World Athletics, the relevance and importance of substantive human rights in sport has been recognised, at least within a European context. This article reviews the most important aspects of the Court’s decision and argues that the consequences of the judgment are potentially far more significant than one set of eligibility restrictions in Athletics. In particular, the judg-ment would seem to lay down significant limits to the cherished ideal of sporting autonomy and, also, demand more rationally transparent decision making by sport governing bodies and those arbitrating on disputes in sport that involve human rights concerns.

Ethics of AI and Health Care: Towards a Substantive Human Rights Framework

There is enormous interest in using artificial intelligence (AI) in health care contexts. But before AI can be used in such settings, we need to make sure that AI researchers and organizations follow appropriate ethical frameworks and guidelines when developing these technologies. In recent years, a great number of ethical frameworks for AI have been proposed. However, these frameworks have tended to be abstract and not explain what grounds and justifies their recommendations and how one should use these recommendations in practice. In this paper, I propose an AI ethics framework that is grounded in substantive, human rights theory and one that can help us address these questions.

Bringing It All Together: Leveraging Social Movements and the Courts to Advance Substantive Human Rights and Climate Justice

Although significant literature and jurisprudence has amassed on rights-based climate litigation over recent years, less research and case law has emerged on poverty-related court cases and the fulfilment of economic, social, and cultural rights (ESCR) in Canada. Fewer still are studies exploring the interlinkages between these areas of inquiry. The purpose of this paper is to explore, using Canada as a case study, rights-based developments in climate litigation cases and how these could impact the innovative advancement of ESCR (e.g. to food, housing and water). Typically, issues of justiciability and standing emerge, impeding the realization of such rights. Given the grave threats we now face, climate cases and social movements must be brought together to better hold state actors accountable for their rights obligations. We implore the legal community to explore ways to traverse juridical obstacles to realize the interdependencies of human rights and protect the planet from calamitous climate change.

Limitation of rights in the times of the COVID-19 pandemic: a view from Kosovo’s Constitutional Court’s ‘shaky’ jurisprudence

ABSTRACT The COVID-19 pandemic has forced governments across the globe to take infection-control actions by and large unforeseen and unforeseeable in their constitutional frameworks. Several measures forcing restrictions on travel, business operations, labour, healthcare and/or the education system have characterised public policy in most of them. A fair number of those restrictions adopted in the form of government or legislature decisions are labelled as ‘lockdown measures’. This article examines two recent cases ruled upon by the Constitutional Court of Kosovo (CCK or Court), whose primary aim was to pronounce on whether the Kosovo government’s lockdown measures were compatible with the criteria authorising a limitation of fundamental rights. These two cases present an outstandingly activist attitude of the Court in controlling government behaviour in times of a pandemic outbreak, by primarily questioning the state’s negative obligations in the face of freedom of movement, right to private and family life, and freedom of assembly; whereas positive obligations of the state with regard to the right to life and its associated right, the right to health, were neglected altogether. The article concludes that the mechanical interpretation which the two Court cases drew neither contributes to a richer substantive human rights protection, nor functionally elevates the concept of human rights in times of pandemic.

Human Rights Protection in the Climate Crisis 2.0: The UN Human Rights Committee’s Landmark Decision in Daniel Billy et al. v. Australia

On September 23, 2022, the UN Human Rights Committee (Committee) published its groundbreaking decision in Daniel Billy et al. v. Australia, in which it found that Australia’s failure to adequately protect indigenous islanders from the Torres Strait region against adverse impacts of climate change amounted to a violation of their rights to enjoy their culture and to private life, family and home. In this contribution, I will outline the key findings of the decision and the underlying strands of the Committee’s arguments, to then analyze and critically reflect upon them against the background of currently discussed challenges faced by human rights dogma in the context of climate change. I will argue that the Committee took a hesitant and restraint position regarding victim status and the right to life with dignity, thereby also failing to account for harms located in the (further) future. Furthermore, the position is taken that the Committee’s questionable decision to exclusively focus on adaptation measures while remaining silent on obligations of mitigation was also owed to methodological hurdles internal to current human rights law. Despite these aforementioned shortcomings, it will be highlighted that the Committee still managed to overcome previously controversial admissibility hurdles bringing the case to the merits. Consequently, the Committee issued the first decision at the international level to tackle substantive human rights questions in the context of climate change that relate to the current situation of small islands and their indigenous inhabitants, thereby taking human rights protection in the climate change context to the next level.

Priority of duties, substantive human rights, and African communalism

I argue for a plausible view of the African idea and practice of substantive individual rights. This view indicates that rights are a means of enhancing individual dignity in the context of a communal system of correlativity of duties and rights. This view is exemplified in Menkiti’s idea of the priority of duties. I explicate this idea and indicate how it highlights the inherent social-communal nature of humans that is implicated in African normative conception of “personhood”.

INTERNATIONAL ORGANIZATIONS AND THEIR ROLE IN PROTECTION OF HUMAN RIGHTS

The contravention of human rights by international organizations are a possible side effect of their growing authority. International organizations increasingly developed safety measures to protect human rights from being violated through the policies. The accountability gap for conduct of International Organisations (IOs) conflicting with their members’ human rights treaty obligations undermines the acceptance of IOs as a forum of international cooperation and weakens the achievements of the UN Covenants alike. This article examines three possible approaches to establish a legal link between IOs and their members’ human rights treaty obligations. First, the treaty obligations could be transferred to IOs through the act of establishment. Second, IOs could be bound by the law of treaties to interpret their founding treaty in accordance with their members’ human rights treaty obligations. Third, obligations of international cooperation could bind IOs to observe their members’ human rights treaty obligations. All approaches face the challenge of paying deference to the independent legal personality of IOs as well as the pacta tertiis problem. The article demonstrates that IOs are bound to respect the UN Covenants to the extent their obligations are generally accepted. For determining and further developing substantive human rights obligations of relevance for IOs, the UN Covenants’ Committees play a vital role.

The Use of Closed Material Procedure (CMP) and Right to Fair Hearing: A Critical Study

The use of closed material procedure (“CMP”) is considers as peril to one’s right to fair hearing which ultimately raises question marks on the legality and effectiveness of the action taken. In CMP the government produces evidences to the court in absence of the party concern where the secretary of the state considers such disclosure would be a threat to the “public interest” and/or “damaging to the interests of national security”. Nevertheless, undeniably, in order to protect the operation of different secret agencies e.g. intelligence, protection of confidential information is also inevitable. Thus, this essay critically assess whether the use of CMP is well protective of the substantive human rights standards. Moreover, this essay would also evaluate whether the use of CMPs lead to compromise the procedural rights at a greater extent or whether it in fact draw a fair balance between the rule of law and national security concerns.

When Rights Enter the CSR Field: British Firms\u2019 Engagement with Human Rights and the UN Guiding Principles

The adoption of the Guiding Principles for Business and Human Rights by the United Nations (UNGPs) in 2011 created a new governance instrument aimed at improving the promotion of human rights by business enterprises. While reaffirming states duties to uphold human rights in law, the UNGPs called on firms to promote the realization of human rights within global markets. The UNGPs thus have sought to embed human rights more firmly within the field of corporate social responsibility (CSR) and to use CSR practices to improve corporate human rights accountability. In this paper, we explore how this incorporation of human rights into the CSR field has affected the business practices and public commitments British firms have made to promote human rights. We analyse the CSR reports published by the 50 largest British firms over a 20-year period starting in the late 1990s and interview senior CSR managers of these firms. We find that these firms have expanded how they articulate their responsibility for human rights over time. These commitments however remain largely focused on improving management practices such as due diligence and remediation procedures. Firms are often both vague and selective about which substantive human rights they engage with in light of their concerns about their market competitiveness and broader legitimacy. These outcomes suggest that, while firms cannot completely resist the normative pressures exerted by the CSR field, they retain significant resources and agency in translating such pressure into concrete practices.

Guiding principles on human rights impacts assessments of economic policy reforms

ABSTRACT In his report to the UN General Assembly on 28 February 2019, the United Nations Independent Expert on Debt and Human Rights presented Guiding Principles on Human Rights Impact Assessments of Economic Reforms (UN Doc. A/HRC/40/57). These set out the human rights principles and standards that apply to States, international financial institutions and creditors when designing, formulating or proposing economic reforms. Based on the existing human rights obligations and responsibilities of States and other actors, the Guiding Principles underline the importance of systematically assessing the impact of economic reforms on the enjoyment of all human rights before decisions are taken to implement such reforms, as well as during and after their implementation. Economic policymaking must be anchored in and guided by substantive and procedural human rights standards, and human rights impact assessments are a crucial process that enables States and other actors to ensure that economic reforms advance, rather than hinder, the enjoyment of human rights by all.

The legal borders of the responsibility in private law

The given article is dedicated to the research of the conception and principles of civil responsibility and to the analysis of thedynamics and legal relationship’s matter of civil responsibility, it is determined the functions and regulations of civil responsibility andit is considered several questions about conditions and effectiveness of civil responsibility in the dissertation.The need of new meaning of the legal responsibility is attempt to set in the present article. In article the author’s position on thequestion of the reinterpretation legal liability is proposed, problems of a civil liability in the system of the legal responsibility are investigated,works of the Ukrainian and foreign scientists are analyzed and changes in the legislation of Ukraine are offered.The author of this article propose personal way of resolving the underlined problems. The deep analysez of the researchers ofUkrainian and foreign scholars are proposed.One only priority arising from this research is need for greater familiarity with the substance and the meaning of long establishedhuman rights terminology in the languages through which this discussion is really proposed.A new combination of substantive human rights information, drawn from a variety of sources and also professional terminologyis clear. Meets a critical need in Ukrainian legal cooperation, the main vision in this research is definitely argued with the conditionsregards the main learning about legal liability. Written in a clear form, this publications combines factual information, according to thenowadays legislation, with a variety points of view of majority scholars. The main purpose of this article is emphasized mainly throughthe legal “bridge» of diversity by top meaning. However, the author’s point regards the borders of liability in private law is well-doneindeed.Notwithstanding its somewhat misleading name, it is clear that equitable form of liability can function, in some cases at least asa cause of action. The legal responsibility arising where a defendant breaches a contract or commits a delict may be seen as a ordinary(not twice) liability, as it depends on a delict by the defendant of a primary duty, imposed by the law of contract actually. The concept of an equity by contract liability may appear to be somewhat fabulous. It is often said for example, that, even after the facts giving riseto the enable rights have occurred, but before any court order in his or her favour, a claimant has only an “inchoate equity», rather thanany more specific right against the defendant. The conceptual doctrine fits well, on the other hand, with the idea of a primary liabilityaltogether is presented by authorThe legal borders of the private responsibility: The article is devoted to the multidisciplinary research about the borders of theprivate responsibility in the law system. The author vision in the research is emphasized mainly on the problem of determination.

Thinking Strategically About Climate Litigation

Efforts to drive action on climate change are increasingly turning to courts. Climate litigation is nothing new, but there has been a recent surge of cases with strategic ambitions. This use of litigation to achieve strategic goals mirrors a long history of human rights practitioners using litigation to achieve policy change. While climate litigators are recognizing the relevance of substantive human rights arguments to climate change, they have paid limited attention to how the human rights community has used litigation. This is a missed opportunity. The human rights community has spent decades debating the role of strategic litigation in effecting lasting change, reflecting on the role of strategic litigation and its relationship with other forms of advocacy and activism, and identifying how to minimise the risks of litigation and maximise its impact. There is potential for climate litigators to use and build on the hard-won lessons that human rights advocates have learned about how to use litigation most effectively and strategically when facing problems with deep social, economic and political roots. This paper outlines those links: it identifies the emergence of the next generation of climate litigation involving cases with strategic ambition; outlines the debates on strategic litigation within the human rights community; and considers how the lessons from those debates apply to climate litigation.

International Human Rights Law and Religious and Cultural Law: Breaking the Impasse

The international human rights movement is facing an existential crisis—a crisis created in part by its continuing failure to adequately address strong criticism that international human rights law (IHRL) is a form of cultural imperialism designed to destroy local religion and culture. While the debate underlying the crisis is not new, the strength of its threat to IHRL and the liberal democratic order is. One of the primary points of friction is over IHRL’s seeming rejection of a group right to be governed by religious or cultural law—a right IHRL proponents fear would open the doors to discrimination against women, the LGBT community and nonconformists. Already, populist leaders like President Erdogan of Turkey have been able to capitalize on a combination of demands for a role for religion in governance and frustration with economic inequality to claw back on human rights and democratic guarantees.The debates surrounding group rights have reached an impasse that will do little to promote either human rights or greater respect for religion and culture. This Article seeks to break that impasse. First, it relies on progressive Muslim and African scholarship to tear down the assumptions shared by both IHRL and group rights proponents that make the impasse seemingly intractable: (1) that religious and cultural law are determined from the top down; and (2) that they demand total submission of their followers. Having debunked those assumptions, it then challenges both groups to consider whether a theory of substantive human rights could allow countries to guarantee individuals the right to feely and equally choose whether to be governed by religious or cultural law without risking that this choice will become a ruse for favoring the majority group or for subjugating women and vulnerable groups.

Environmental Justice: Linking Human Rights and the Environment

This study outlines the international legal regime on environmental protection and then examines the link between the environment and human rights by reference to the applicaion of human rights law as a legal remedy for environmental issue. Several decades ago, Public International Law not concerned with environmental protecion. The Stockholm conference of 1972 and subsequent international instruments have enriched the international community on the subject. Undoubtedly environmental rights are self executing and they need positive State intervention for their fulfillment. The human fights both procedural and substantive human rights, found in the international Bill of Rights are being applied in relation to environmental issues. The procedural rights must be distinguished from substantive rights recognized in international human rights instruments such as the right to life, the right to health or the right to decent standard of living. The invocatin of substantive human rights in relation to environmental issues has become popular at the national level. The efforts made by Sri Lanka and several South Asian countries are of considerable value. The right to a healthy environment on the other hand denotes the identification of a separate indepedent human right not dependent on existing human rights in the incorporation of a human right to healthy environment into the fundamental rights chapter of our Constitution.

The Protection of Conscientious Objection against Euthanasia in Health Care

In 2015 the South African judiciary was confronted with the issue of the so-called "right to die", when Robin Stransham-Ford applied to the High Court of South Africa (the North Gauteng Division) for an order to have his life terminated. Although the Supreme Court of Appeal set aside the order (on procedural grounds), the High Court's judgment paved the way towards renewed attention regarding the possible legalisation of euthanasia. A pertinent question arising from this is whether a medical practitioner may be compelled to participate in the administering of euthanasia. Bearing this in mind, this article argues for the protection of the rights of medical practitioners who conscientiously object to participating in the administering of euthanasia, especially where such an objection is based on religious beliefs. From this arises the necessity to investigate the rights applicable both to the medical practitioner and the patient (which focusses on the right to freedom of religion and personal autonomy), the weighing up against one another of the different meanings ascribed to such rights, as well as the postulation of a substantively competitive rationale against the background of the importance and sacredness of human life. This also overlaps with the importance of the endeavour towards higher levels of religious freedoms and consequently of plurality in democratic societies. Applying the proportionality test in the analysis whether a medical practitioner's rights may be reasonably and justifiably limited against the background of administering euthanasia also strengthens the argument for the protection of the medical practitioner's right to object conscientiously to the administering of euthanasia. This, together with the vacuum there is in substantive human rights jurisprudence related to this topic, suggests the importance of this article both for the South African context and beyond.
 

Integrating Human Rights in the Paris Climate Architecture: Contest, Context, and Consequence

In the wake of the disappointing outcome of cop 24/cma 3.1 in relation to human rights, this article asks whether the Paris Agreement’s preambular recital on human rights is the outer limit of what the regime can countenance, as the text appears to suggest, or whether it is a hook for the gradual mainstreaming and expansion of human rights protections in the climate regime, as many human rights advocates hope. To address this question, the article explores the contest over the manner and extent to which human rights law applies in the climate change regime, as well as the context in which it is set in relation to the evolution of the climate regime from a prescriptive to a facilitative regime. The article concludes that procedural rights and commitments, which leave considerable discretion to states in relation to outcomes, slot neatly into the Paris Agreement’s architecture, and will likely be progressively mainstreamed and expanded. However, a significant expansion of substantive human rights protections in the climate regime will need to await its moment.

Human Rights, Constitutional Justice and International Economic Adjudication: Legal Methodology Problems

International economic law (IEL) developed since ancient times based on private and public, national and transnational regulation of economic transactions and related economic policies. International human rights law (HRL) emerged only in the 20th century based on different (e.g. deontological rather than utilitarian) rationalities; it continues to be developed by different international fora, but depends on economic law for generating economic goods and services necessary for protecting human rights. Section I discusses the increasing ‘constitutionalization’ of HRL and IEL at national and regional levels of governance and its implications for the settlement of trade and investment disputes. Section 2 discusses ‘constitutional justice principles’ as legal basis for impartial third-party adjudication requiring ‘judicial administration of justice’ and treaty interpretations ‘in conformity with the principles of justice’ and human rights accepted by all UN member states. Section 3 elaborates in more detail problems of ‘systemic interpretation’ and ‘constitutional interpretation’ in IEL. Section 4 gives an overview of procedural human rights dimensions in IEL adjudication, like the human right of access to justice and the emerging common law of transnational adjudication. Section 5 discusses procedural and substantive human rights problems in WTO and investment adjudication. Section 6 criticizes trade and investment adjudication for neglecting HRL and constitutional, distributive, corrective and commutative justice principles.

Hardening Soft Law: Are the emerging corporate social disclosure and due diligence laws capable of generating substantive compliance with human rights norms?

The aim of this paper is to examine the potential effectiveness and limitations of the emerging mandated social disclosure and human rights due diligence laws. Globalization has led to the emergence of low cost, efficient (but risky) supply chains that span multiple sourcing countries which exhibit a wide range of economic, political, social, labor and environmental standards. The five laws examined seek to provide mechanisms that aim to reduce the negative human rights impact of business in supply chains. They introduce varying demands on business to map, track and disclose how and where their products are being made. This paper first briefly highlights the preponderance of soft law that defines the business and human rights regulatory framework and guides corporate behavior. It then examines three mandated disclosure laws, the Dodd-Frank Act, the California Transparency in Supply Chains Act and the UK Modern Slavery Act and two due diligence focused laws, the Australian Illegal Logging Prohibition Act and the French Duty of Corporate Vigilance Law. After which, it proposes criteria to strengthen the development and implementation of these laws. It concludes by noting that while these laws are hardening the human rights expectations of business, for them to generate substantive (and not just procedural) human rights compliance they must incorporate: detailed requirements on reporting and due diligence: collaboration with external stakeholders and; compliance measures. Through analysis of these regulatory developments this paper seeks to provide greater understanding of how to shape regulatory responses to governance gaps in transnational supply chains.

Human rights, personhood, dignity, and African communalism

I articulate and defend a plausible conception of substantive human rights that is grounded in an African communal conception of dignity and personhood that emphasizes individual responsibilities. I contrast this conception with the dominant Western liberal view of moral dignity as a basis for human rights, which involves an individualistic self-regarding entitlement that inheres in human nature. The Western overemphasis on rights as entitlements, without a corresponding emphasis on duty, is not an adequate way of maintaining rights, well-being, and dignity for all, especially the vulnerable. A plausible African view that emphasizes the responsibilities to nurture innate capacities, and respect and protect individual rights and dignity, provides a better approach. I suggest that a Universal Declaration of Responsibility should occur concurrently with the Universal Declaration of Human Rights.