UN Human Research Articles

The implicit taxonomy of the equality jurisprudence of the UN Human Rights Committee

AbstractThe article analyses the individual communications of the UN Human Rights Committee (HRC) on how the latter conceptualizes equality under the International Covenant on Civil and Political Rights (ICCPR). It finds an implicit taxonomy in the case law that is not reflected in the doctrinal formulae that the HRC applies. The argument proceeds in several steps: First, I argue that the concept of equality in human rights treaties depends heavily on its operationalization by courts and quasi-judicial bodies, like the HRC. Second, I analyse the doctrinal formulae that the HRC has developed in order to specify equality. I argue that the doctrine is rather inconsistent and does not give significant guidance for resolving actual cases. Third, I present the results of a systematic analysis of the case law of the HRC. The latter shows a rather stable pattern which is not reflected in the doctrinal formulae: The best predictor whether the HRC finds a violation of Article 26 ICCPR or another equality norm of the Convention is the existence of a suspect criterion on which the challenged distinction was based. There are only very few cases in which a violation is found in the absence of a suspect criterion. The majority of these cases arguably concern arbitrary state actions. At the same time, the HRC has only rarely held that a state has not violated an equality norm despite the existence of a suspect criterion.

‘Choking the national demos’: research partnerships and the material constitution of global health

By foregrounding a widened view of the rule of law in transnational legal processes, the works under discussion in this symposium can support innovative critical perspectives on global health law –a field that has gained wide attention due to the spread of COVID-19 around the world (Lander, 2020; Bhatt, 2020). Legal and socio-legal scholars in the decade and a half before the pandemic worked on locating global health law and articulating its underlying principles. Lawrence Gostin's 2014 monograph offers a synoptic view centred on international institutions (e.g. the World Health Organization, World Trade Organization, UN Human Rights Council) and problems (e.g. infectious-disease response, tobacco control), along with an elaboration of its normative basis in universal moral principle and international human rights law (Gostin, 2014). Struggles over access to essential medicines and intellectual property in the early 2000s are, for example, represented in terms of the right to health constraining international trade law. Andreas Fischer-Lescano and Guenther Teubner's 2004 reading is oriented more by social theory than by doctrinal or ethical frames (Fischer-Lescano and Teubner, 2004, pp. 1006, 1008). A functional health regime has ‘differentiated out’, they observe, and operates as a discrete communication system across borders, albeit one that is threatened by the preponderant economic system. On this model, the battle for access to medicines amounts to ensuring, via human rights guarantees, that the rationality of the health system is not replaced by that of its economic rival in legal and policy communications (Fischer-Lescano and Teubner, 2004, pp. 1030, 1046).

Navigating between Pragmatism and Principle: Australia’s Foreign Policy Response to the 2017 Rohingya Crisis

Abstract The escalation of violence by Myanmar’s military forces against ethnic Rohingya populations in Rakhine State in 2017 served as a test case for Australia’s commitment to R2P, and its capacity to protect populations from widespread and systematic atrocities in its own regional neighbourhood. Australia’s response to the crisis in Myanmar was mixed; it co-sponsored a UN Human Rights Council resolution to establish the Independent International Fact-Finding Mission on Myanmar that was instrumental in determining the extent and nature of violence committed by Myanmar’s armed forces during the so-called ‘clearance operations’, and provided substantial humanitarian aid for affected Rohingya populations. Australia has, however, been criticised for not doing enough to pressure the government of Myanmar on the issue, for maintaining defence cooperation with Myanmar throughout the crisis, and for its reluctance to accept Rohingya refugees fleeing the violence. This article examines Australia’s response to the Rohingya crisis in the areas of international, regional, and bilateral diplomacy, humanitarian assistance, and defence cooperation. It asks why Australia did not take a more proactive role in confronting atrocities committed by the Myanmar government, and identifies lessons learnt and recommendations for strengthening Australia’s atrocity prevention architecture that is consistent with Australia’s pragmatic approach to regional assistance and its principled international advocacy.

The Implicit Taxonomy of the Equality Jurisprudence of the UN Human Rights Committee

The article analyzes the individual communications of the UN Human Rights Committee on how the latter conceptualizes equality under the ICCPR. It finds an implicit taxonomy in the case law that is not reflected in the doctrinal formulae that the HRC applies. The argument proceeds in several steps: First, I argue that the concept equality in human rights treaties depends heavily on how it is operationalized by courts and quasi-judicial bodies, like the HRC. Second, I analyze the doctrinal formulae that the HRC has developed in order to specify equality. I argue that the case law is rather inconsistent and does not give significant guidance for resolving actual cases. Third, I present the results of a systematic analysis of the case law of the HRC. The latter shows a rather stable pattern which is not reflected in the doctrinal formulae: The best predictor whether the HRC finds a violation of Art. 26 ICCPR or another equality norm of the Convention is the existence of a suspect criterion on which the challenged distinction was based. There are only very few cases in which a violation is found in the absence of a suspect criterion. The majority of these cases arguably concerned arbitrary state actions. At the same time, the HRC has only rarely held that a state has not violated an equality norm despite the existence of a suspect criterion.

Children’s Rights when Financing Development through Multilateral Development Banks: Mapping the Field and Looking Forward

Abstract Children and their rights are increasingly recognised as an integral part of the global development agenda as set out by the 2030 Agenda and the accompanying sdg s (Sustainable Development Goals). UN Human Rights Council Resolution 34/16 calls for a child rights-based approach to implementing these goals. Aspirations aside, children’s rights are largely invisible when the debates shift to how development is financed. Consequently, a children’s rights-based inquiry into the governance of institutions that finance development, is largely absent. This article seeks to overcome the relative scarcity of critical academic reflection on how and to what extent children’s rights feature in how development projects are financed by multilateral development banks (mdb s). The article first identifies common strands in norms mdb s use to govern themselves, their clients and borrowers. It then proceeds to situate how children’s rights fit into these administrative governance frameworks and goes on to address future perspectives of engagement to address shortcomings.

UN Human Rights Shaming and Foreign Aid Allocation

Does public condemnation or shaming of human rights abuses by the United Nations influence foreign aid delivery calculus across Western donor states? I argue that countries shamed in the United Nations Human Rights Council (formerly known as the United Nations Commission on Human Rights) encourage donor states to channel more aid via international and local non-governmental organizations. Furthermore, I find this effect to be more pronounced with increased media coverage. The findings of this paper suggest that international organizations do influence advanced democracies’ foreign policy. Moreover, the paper also finds that donor governments do not punish recipient leaders by scaling back on government-to-government aid, which is more fungible, despite public condemnations of their human rights practices owing largely to strategic concerns. These results are robust to a number of alternative data and estimation techniques.

Nordic Experiences in the UN Human Rights Council: A Tour d’Horizon of 2019 with Iceland and Denmark

ABSTRACT The importance of the United Nations Human Rights Council (HRC) is growing for the Nordic states. Despite the existence of a rotation principle for Nordic representation, in 2019 two Nordic states, Iceland and Denmark, exceptionally both had a seat in the HRC. This article seeks to evaluate that unique situation by taking stock of their respective experiences in the Council, their human rights priorities, as well as Nordic cooperation in general. The aim is to explore similarities and differences between the Nordics, and to inform policymakers about developments within the Council. During a time in which human rights are being challenged worldwide by autocratic states and developments such as COVID-19, it is essential to improve our understanding of what the Nordic countries, as principled supporters of human rights, can bring to the table.

South Africa’s Engagement with International Human Rights Law

The commitment to human rights is the cornerstone of the Constitution of the Republic of South Africa, 1996. However, South Africa’s human rights record in the international community often stands in stark contrast to its constitutional commitment to human rights. In both international and regional contexts, South Africa has demonstrated an inconsistent approach to foreign policy that is often guided more by political considerations than by a principled commitment to advancing human rights. This lecture provides an overview of South Africa’s engagement with international human rights law in the constitutional era and evaluates its human rights record in the international arena in a diverse range of fields. These fields include South Africa’s record of human rights protection in peace and security operations on the African continent; its record as a member of the UN Security Council and Human Rights Council; the assessment of its performance by UN human rights treaty bodies; and its record in respect of the Covid-19 pandemic, international criminal justice, the death penalty, and the arms trade. The lecture draws on Judge Pillay’s extensive experience in international law, including as President of the International Criminal Tribunal for Rwanda, Judge at the International Criminal Court in The Hague and former UN High Commissioner for Human Rights.

The duty to protect the right to life

The author analyses one aspect of the right to life - the duty to protect the right to life. at aspect is not encompassed in definitions of the right to life in clear and explicit words. However, it is elucidated through the process of interpretation by various bodies, both international and national. Explicit inclusion of this element is thoroughly analysed in General Comment No. 36 adopted by the UN Human Rights Committee and it presents the starting point for the analyses in this paper. e duty to protect the right to life has also been elaborated in specific cases before the UN Human Rights Committee, the European Court of Human Rights and constitutional courts. Several of these cases have also been analysed within this paper. e aim of the paper is to identify the scope and limits of the duty to protect the right to life.

Institucionalni akteri kao međunarodni zakonodavci u oblasti biznisa i ljudskih prava - rukovodeća načela Ujedinjenih nacija o biznisu i ljudskim pravima i šire

Business and human rights is an interdisciplinary field, which advocates that both state and businesses are duty-holders of human rights obligations. The area of business and human rights aims to regulate and prevent negative impact of business operations at all levels of global supply chains. The approach of international law in this regard has so far been piecemeal. States have been traditionally a principal participant in the international community. Nonetheless, this article aims to test arguments submitted by Jovanović in his 2019 book "The Nature of International Law" that institutional non-state actors are capable of creating international legal rules. Equipped with this knowledge, this article argues that the UN Human Rights Council has through adoption of the UN Guiding Principles on Business and Human Rights restated human rights obligations of states and indirectly of corporations in international law in order to protect the dignity of rights-holders in local and global environments

How Time Matters in the UN Human Rights Council’s Universal Periodic Review: Humans, Objects, and Time Creation

The Universal Periodic Review (UPR) of the United Nations Human Rights Council is an innovative monitoring mechanism in the international human rights law system. As the UPR matures, scholars have increasingly sought to stand back and understand it as a process. In this article, I take work in this vein further by considering more closely the actors involved in the UPR – humans and objects – and highlighting the time creating effects that emerge from the relationships between them. Across the various stages of the UPR, a range of temporalities – from cyclicality and linearity to retrogression and suspension of time – are produced and sustained by people, reports, data, lists, microphones, screens, computers, action plans, and desks, just to name a few. I argue from this that time is materially made in the review process, often in micro and taken for granted ways. In its operation, the UPR appears as a collection of temporal assemblages. Or, in language drawn from Actor Network Theory (ANT), an assortment of fluid and interweaving sets of actants networked together who generate ideas of time across its practice. Apprehending time creation in this material, ANT-inflected way is highly significant for scholars and practitioners interested in the UPR. It holds potential to influence how this process can be understood, approached, and located within international human rights law as itself a larger, time creating actor-network.

The United States, China and the European Union at the UN Human Rights Council: Trilateral Dynamics Over International Human Rights Norms, Institutions and Politics

The United States, China and the European Union at the UN Human Rights Council: Trilateral Dynamics Over International Human Rights Norms, Institutions and Politics

Regulacje ograniczeń w zakresie noszenia symboli religijnych w ocenie Komitetu Praw Człowieka ONZ

The article provides a critical analysis of three individual notification opinions issued by the UN Human Rights Committee in July 2018 on the compatibility of existing regulations in States parties (France, Turkey) on bans on wearing religious symbols with the freedom to manifest religion guaranteed by Article 18 of the International Covenant on Civil and Political Rights. Moreover, the text points out the dichotomy – in terms of content – of positions on this issue between the universal body and the regional reference body (the European Court of Human Rights) and also addresses such systemic issues as the problem of legal force of the Committee’s opinions, the lack of dialogue or even isolationism of international bodies ruling on human rights, or the dispute over the primacy of their decisions.

The Impact of New Technologıes on Human Rıghts ın the Context of the Rıght to be Forgotten and the Rıght to Prıvacy

The development of new technologies also has an impact on human rights. In the previous “epochs” of global information society, it was stated that that traditional rights can be exercised online. For instance, in 2012 (and again in 2014 and 2016), the UN Human Rights Council emphasized that ‘the same rights granted to people, so to speak, in an “offline” manner, must be protected online as well’. This, in its turn, implicitly brought to the reality that the new technetronic society did not create new rights. Though, we should take into consideration that in the digital world national legislative norms that guarantee the confidentiality of personal data often do not catch up with the technological development and, thus, can’t ensure confidentiality online. Therefore, the impact of digitalization on human rights within the frames of international and national laws should be broadly analysed and studied. The article’s objective is to analyze the impact of new technologies on human rights in the context of the right to be forgotten and right to privacy. Because the development of new technologies is more closely linked to the security of personal data. With the formation of the right to be forgotten, it is the issue of ensuring the confidentiality of certain contents of personal data as a result of the influence of the time factor. The authors conclude that, the right to be forgotten was previously defended more in the context of the right to privacy. However, they cannot be considered equal rights. The right to be forgotten stems from a person’s desire to develop and continue his or her life independently without being the object of criticism for any negative actions he or she has committed in the past. If the right to privacy contains generally confidential information, the right to be forgotten is understood as the deletion of known information at a certain time and the denial of access to third parties. Thus, the right to be forgotten is not included in the right to privacy, and can be considered an independent right. The point is that the norms of the international and national documents, which establish fundamental human rights and freedoms, do not regulate issues related to the right to be forgotten. The right to be forgotten should be limited to the deletion of information from the media and Internet information resources. This is not about the complete destruction of information available in state information systems. Another conclusion of authors is that the media and Internet information resources sometimes spread false information. In this case, there will be no content of the right to be forgotten. Because the main thing is that the information that constitutes the content of the right to be forgotten must be legal, but after some time it has lost its significance. The scope of information included in the content of the right to be forgotten should not only be related to the conviction, but also to other special personal data (for example, the fact of divorce).

Third Revised Draft Treaty on Business and Human Rights: Comments and Recommendations

The 3rd revised draft of the legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises, was published in August, by the Intergovernmental Working Group (IGWG), established in 2014 by the UN Human Rights Council, under Resolution 26/9, for the elaboration of the treaty. The text is based on a series of consultations and inter-State negotiations that have taken place since 2014. This policy brief is written as an external contribution to the new round of negotiations over the text taking place in the Human Rights Council in Geneva, from 25 to 29 October 2021. It is in part informed by an expert exchange between academics and civil society organisations held on 7 October at the Asser Institute in The Hague. The current brief is not an exhaustive response to the various revisions made in the third draft but focuses on three questions at the heart of treaty: prevention and due diligence; liability and regulation; and access to remedy. While numerous political controversies surround the treaty, our focus is on analysing its utility, were it adopted, in responding to corporate human rights abuses. As we believe that the main parameters of the treaty are relatively settled, our feedback focuses on suggestions consistent with the current paradigm. The first section of the brief focuses on the areas of incoherence within the third revised draft. The second section proposes recommendations going forward.

Socio-economic aspects of human capital development in Russia and China

Innovative cooperation is an important component of mutually beneficial bilateral cooperation. Such interaction between the two major global players such as Russia and China requires a well-balanced human development policy. The article reveals the complexity of the evolution of hu-man capital in RF and China. Based on the comparison of the socio-economic indicators and data from the UN Human Development Report, the author considers strengths and weaknesses of existing models of human development. The article shows the dominance of Russian Federation in economic and social indicators, such as per capita GDP, disposable income, inequality index, gender gap, education level. While important features of the modern China progress are making this country more capable in accumulating and making proper use of human potential. The main advantages of development of PRC are rapid growth of population incomes, thoughtful elimination of poverty and illiteracy, growth of the education level and life expectancy. The author highlights weaknesses in the development of partner countries: population decline, age and gender imbalances, significant gap in living standards, increasing burden on the healthcare system, drop in real incomes and insufficient funding for education and research. According to the human development index, the gap between Russia and China in the world ranking at this stage is 34 positions. However, the dynamics of changes in living standards over the past 30 years indicates a short time left until Russia remains a leader. Building a strategic long-term partnership with China requires from Russia more balanced policy in use of human capital.

Human rights in Muslim law: current issues

The article is devoted to the study of the peculiarities of the legal system of Muslim countries. The author analyzes the essence of the concept of human rights and freedoms in Muslim law, as well as comparative characteristics with the Western legal system. The general principles of law in the Muslim system, due to the peculiarities of its historical formation, establish the criteria of conformity of positive law to the values of a particular society, limiting the action of a law to generally accepted moral criteria. It is noted that certain aspects of Sharia have different meanings for followers of Islam and those who do not adhere to this faith. In a ratio religious and secular rules of conduct operate differently. The author points out that in the theory of Muslim law, all people are equal regardless of their social background, skin color or language. It also speaks of the equality of all before the law and the court, but in practice a completely different situation arises. The article analyzes the disrespect for women's rights and the fact that women are essentially unprotected in Islam. It is noted that human rights, which should be universal in nature, were neglected by delegates to the 1993 UN Human Rights Conference in Vienna. In view of this, Islamic society is faced with the question: either Islam and Sharia, or democracy and human rights. At the same time, no explanation was given as to why one should be chosen over the other. The author proposes to gradually incorporate Muslim law into the law of Western countries, but only with respect for the national and cultural peculiarities of the East. It also highlights the importance of developing categories of human rights in the Muslim legal system, taking into account the standards of the Western concept of human rights and conducting a detailed study of Islamic law, rather than simply adding Western notions of natural human rights to Muslim law.

Toward Rejuvenated Inspiration with the Unbearable Lightness of Anthropology

How might the connections between anthropology and international law become more dynamic? I reflect upon this question in this essay using ethnographic insights from the documentary cycles of the UN Human Rights Committee, the treaty body monitoring state compliance with the International Covenant on Civil and Political Rights. Building on recent anthropological scholarship on international organizations, bureaucracy, and documents, this essay discusses the knowledge practices and legal technicalities that characterize the international community of human rights lawyers. In particular, I reflect on the legal fiction of difference governing UN treaty bodies’ operations and the empirical sameness of participants in different formal categories in the shared community of practice of human rights lawyers. I conclude by suggesting that anthropological insights could significantly enrich our shared understanding of the diverse and subtle effects of human rights monitoring. Simultaneously such insights may offer rejuvenated inspiration for those international lawyers tackling a sense of losing faith in their discipline, both as an influential tool of world improvement and an invigorating intellectual tradition.

The UN Human Rights Council, a Practical Anatomy by Eric Tistounet

The UN Human Rights Council, a Practical Anatomy by Eric Tistounet

The Evolving Right to Education Under the UN Human Rights Framework

The Evolving Right to Education Under the UN Human Rights Framework