15018 results in Human Rights
Gerd Oberleitner (ed.): Research Handbook on International Law and Human Security
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- By Lisa Heschl
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Central European University, Budapest, Manfred Nowak, Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- European Yearbook on Human Rights 2023
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- 04 April 2024
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- 30 November 2023, pp 673-676
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Summary
‘Human security is a child who did not die, a disease that did not spread, a job that was not cut, an ethnic tension that did not explode in violence, a dissident who was not silenced.’ – these are the opening words of Gerd Oberleitner, quoting the famous 1994 UNDP Human Development Report, introducing ‘human security’ as a new approach to thinking about security in a human-centric perspective. Nearly 30 years later, Oberleitner, in his Research Handbook on International Law and Human Security, tries to compile and embrace the evolution and application of the concept of ‘human security’ from an international law perspective. ‘Human secuarity’, as a political leitmotif, has been primarily researched from the perspective of political science or international relations, yet international law has been quite reluctant to approach it from a legal dimension, and to contribute to understanding its normative underpinnings and the interactions between international law and ‘human security’. Oberleitner, thus, aims to close this gap, bringing together a selection of academics who can be considered leading voices in their respective fields, to ‘examine the preconditions for and consequences of applying human security to international legal thinking and practice, provide evidence of the traces which human security has left in international law and propose a future international law in which human security is central to the law's purpose’. This ambitious objective could not be more timely: international law is in a dire predicament, facing a general backlash against a rule-based international order, with states retreating from multilateralism and rejecting the rule of (international) law. At the same time, global challenges and crises, such as the COVID-19 pandemic or climate change, also illustrate the need for increased international cooperation in the field of law. Today's challenges most likely require not less but more international law, in order to be able to ensure the well-being and future of humankind. The premise of the Research Handbook on International Law and Human Security is, thus, to make human security once again an intrinsic part of international law-making, to ensure the relevance of international law in addressing global challenges with greater legitimacy, and to place the individual once again at the centre of responses to multidimensional threats and risks.
Frontmatter
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Central European University, Budapest, Manfred Nowak, Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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Pavel Šturma and Milan Lipovský (eds.): The Crime of Genocide: Then and Now: Evolution of Crime
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Central European University, Budapest, Manfred Nowak, Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- 30 November 2023, pp 693-696
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Summary
The Crime of Genocide: Then and Now: Evolution of a Crime is an anthology of carefully selected monographs authored by distinguished legal scholars, edited by Pavel Šturma and Milan Lipovský. This comprehensive work explores the phenomenon of genocide through the lens of international criminal law, and the law of state responsibility for internationally wrongful acts, in the 70 years since the introduction of the term to the legal world. Each chapter presents the viewpoints of individual contributors, collectively providing invaluable insights into timeless and contemporary aspects of the international crime of genocide. The book's central objective is to present a fresh and innovative perspective on how genocide is conceptualised. Special attention is given to the particularities and complexities of the crime, without interfering with the definitional issues around genocide.
The initial part of the book scrutinises the theoretical underpinnings of genocide. Pavel Šturma, in his essay, delves into the analysis of criminal responsibility for this crime. He posits that a departure from exclusive individual criminal responsibility is necessary, advocating for a more nuanced approach that recognises and embraces state responsibility as well. Then, Markus P. Beham's contribution focuses on the process of categorising the phenomenon and establishing a legal framework. Tracing the evolution of the conceptualisation of genocide within the realm of international law, the discourse ultimately delves into the appropriate methods of fairly labelling the atrocity.
The following part delves into the intricacies of criminal liability. Michala Chadimová specifically examines the mens rea and dolus specialis elements of the crime of genocide. Her primary inquiry revolves around the extent to which this specific ‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’, hinders the advancement of jurisprudence in the field. She further notes that establishing the presence of dolus specialis poses a formidable challenge. Nikola Kurková Klímová then continues the discussion by shedding light on the complexities surrounding attempted genocide. Despite the recognition of attempted genocide as a punishable offence under the provisions of ICTY-ICTR Statutes, the Courts appear hesitant to render relevant convictions.
The third part discusses the exhaustive list of protected groups under the definition of genocide, and its potential implications. Veronika Bílková conducts an analysis of protective mechanisms against genocidal attacks falling within the purview of the definition.
The Court of Justice of the European Union and Human Rights in 2022: National Security Interests as Means of Deviation from EU Law?
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Central European University, Budapest, Manfred Nowak, Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- 30 November 2023, pp 591-626
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ABSTRACT
In 2022 the Court of Justice of the European Union (CJEU) delivered important judgments in the field of fundamental rights concerning ‘national security’ interests. The latter may serve as means to deviate from EU law, and especially from fundamental rights law. This became important in 2022, not only because of the outbreak of the Ukraine war, but also in relation to ‘renegade’ Member States that attempted to undermine the uniform application of EU law. Seven judgments, in the fields of rule of law , data protection , freedom of speech and freedom of movement , are discussed. From these, it follows on the one hand that Member States may invoke national security interests only in highly exceptional cases, for example when faced with concrete terrorist threats. On the other hand, serious interferences with fundamental rights by the EU legislature for the protection of national, supranational or international security were accepted.
INTRODUCTION
2022 marked the seventieth anniversary of the Court of Justice of the European Union (hereinaft er ‘CJEU’). The Court has not only proved itself as a vehicle for European integration and a defender of the supremacy of EU values and law, but has also served as a guardian of fundamental rights. However, 2022 was also the beginning of the Ukraine war, which affected the EU in many aspects, above all in its role as a peace community. Besides this, the Court had to do once more with ‘renegade’ Member States that tested the primacy and uniform application of Union law.
In this connection, in 2022 the CJEU dealt, in several cases, with the notion of ‘national security’ or ‘public security’. These were brought up by Member States in various contexts, regarding the protection of the ‘national identity’ (section 2), data retention (section 3), and the reinstation of internal border control (section 5). Also, security interests were invoked by the EU, legitimising the broadcasting ban on certain Russian media outlets, to preserve peace within the Union (section 4). The underlying effects are identical: all of these interests are intended to support deviation from EU law, especially from the rights guaranteed in the Charter of Fundamental Rights (hereinaft er ‘CFR’).
Claire Loven: Fundamental Rights Violations by Private Actors and the Procedure before the European Court of Human Rights
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Central European University, Budapest, Manfred Nowak, Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- 30 November 2023, pp 689-692
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Summary
‘What are the characteristics of ECtHR cases originating from a conflict between two private actors and how can the Court deal with such verticalized cases while taking due care of the procedural rights of private actors, as well as the position of Convention States and the Court itself?’ (p. 8). This fundamental research question is the crux of the publication at hand, in which the author examines extensively the European Court of Human Rights (ECtHR)'s treatment of so-called verticalised cases, i.e. those transformed from a conflict between two private actors at the national level (horizontal conflict) into a conflict between a private actor and a state (vertical conflict), thus being capable of being brought before the ECtHR. The increasing frequency with which the Court is confronted with such verticalised cases, along with the issues they pose, most notably the lack of a serious possibility for ‘disappeared parties’ to exercise their rights and interests before the Court, prompted the author to create a new approach to dealing with such cases. This is even more important since the underlying Convention system was not originally designed for verticalised cases, posing a challenge not only for private actors and Convention States, but also for the Court itself (p. 6 ff.).
The book is divided into four parts, with a total of eleven chapters, and is a publication of the author‘s doctoral thesis. The first part provides an insight into the Convention system by analysing its history and intentions, its key principles – being the principle of effectiveness and the principle of subsidiarity – as well as the procedural rules and standards of proceedings before the ECtHR, which underpin the following analysis. In the second part, the author discusses the so-called horizontal positive obligations of Convention States, obliging them ‘to take action to secure the rights and liberties guaranteed in the Convention in relations between private actors’ (p. 75). The need to address these obligations, she explains, stems from the fact that such obligations are oft en imposed in cases arising from horizontal conflicts at a national level (p. 75 ff.). As part of an in-depth analysis of verticalised cases before the ECtHR, in the sixth chapter, the author demonstrates the Court‘s current approach when dealing with such cases.
The Case Law of the ECtHR in 2022: Strasbourg in the ‘Age’ of Protocol No. 15
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Central European University, Budapest, Manfred Nowak, Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- 30 November 2023, pp 627-662
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ABSTRACT
Th is contribution analyses the developments in the case law of the European Court of Human Rights in 2022. This is the first year aft er Protocol No. 15, which, inter alia, introduced an express reference to the principle of subsidiarity and the doctrine of margin of appreciation into the Preamble of the European Convention on Human Rights, entered into force. Therefore, although the increased relevance of subsidiarity and margin of appreciation in the Court's approach to the interpretation and application of the Convention is not a new trend, it seems that it can provide an appropriate lens through which the relevant case law developments should be assessed. In light of the above, the contribution examines (some of) the relevant ‘key cases’ decided by the Court in 2022, and tries to highlight the relevance of the above-mentioned principle and doctrine in the identification of the scope and content of the obligations imposed on the domestic authorities by the Convention, as well as in the determination of the nature and scope of the Court's review over compliance with such obligations.
INTRODUCTION
In 2022, the European Court of Human Rights (ECtHR or ‘the Court’) faced unexpected challenges, caused by the expulsion of the Russian Federation from the Council of Europe (CoE) on account of the armed aggression perpetrated on 24 February 2022 against Ukraine. Among other issues caused by this situation, the Court needed to rule on its jurisdiction over pending and new cases against Russia, to decide how to process these without the participation of the Russian government in the adversarial proceedings, and to decide how to manage Russia's huge backlog of pending cases in the absence of financing by the latter. Moreover, the ongoing armed conflict gave rise to a huge number of applications and interim measures requests, lodged with respect to the alleged violations of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR or ‘the Convention’), perpetrated in that context. At the same time, 2022 was a year of great satisfaction.
Ukraine and the Netherlands v. Russia: Taking Stock of the Latest Developments in the Case Law of the European Court of Human Rights on Extraterritorial Jurisdiction
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Central European University, Budapest, Manfred Nowak, Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- 30 November 2023, pp 139-170
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ABSTRACT
On 25 January 2023, the European Court of Human Rights (ECtHR, Court) issued its admissibility decision in Ukraine and the Netherlands v. Russia . This inter-state case concerns events in the Donbass area of eastern Ukraine, which began in the spring of 2014, including the downing of flight MH17. It is a landmark decision for many reasons, including the Court's approach to extraterritorial jurisdiction . Indeed, the Court used this case as an opportunity to clarify its general principles regarding jurisdiction, and it is likely to become the leading case on extraterritorial jurisdiction for years to come. More specifically, when formulating the general principles on jurisdiction, in Ukraine and the Netherlands v. Russia, the Court takes into account recent developments in its case law. Accordingly, this contribution examines to what extent the admissibility decision in Ukraine and the Netherlands v. Russia succeeds in incorporating recent developments in the ECtHR's case law into a coherent framework on jurisdiction. It first briefly recalls the main trends in the ECtHR's case law, across landmark cases such as Banković and Al-Skeini, before examining recent relevant ECtHR case law on extraterritorial jurisdiction. The contribution then discusses in detail the Court's approach to jurisdiction in Ukraine and the Netherlands v Russia . It thus shows that Ukraine and the Netherlands v. Russia can be seen as an ‘update’ of the general principles in Al-Skeini. It also confirms that, overall, the Court's case law continues to move in the direction of a more expansive and granular understanding of jurisdiction.
INTRODUCTION
On 25 January 2023, the Grand Chamber of the European Court of Human Rights (ECtHR, or Court) issued its admissibility decision in the inter-state case of Ukraine and the Netherlands v. Russia . The case concerns events in the Donetsk and Luhansk regions, in the Donbass area of eastern Ukraine, which began in the spring of 2014, including the downing of flight MH17. This case is important for numerous reasons: the armed conflict at stake in this case remains ongoing, and has escalated since Russia's invasion of Ukraine in February 2022; it includes the high-profile issue of the downing of flight MH17;
When Aerial Surveillance Becomes the Sine Qua Non for Interceptions at Sea: Mapping the EU and its Member States’ Complicity in Border Violence
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Central European University, Budapest, Manfred Nowak, Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- 30 November 2023, pp 475-506
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ABSTRACT
Since the European Court of Human Rights’ findings in Hirsi Jamaa and Others v. Italy, European states have progressively moved away from ‘direct’ forms of interdictions and pushbacks, towards ‘indirect’ or ‘privatised’ pushbacks (and pullbacks). The increased reliance on aerial assets, presented as a hybrid strategy for maritime surveillance and combating irregular migration, has raised legal and political challenges. While, in theory, technological tools could be neutral, they rarely are when placed in context, as their use is influenced by the objectives of their owners and/or users. The dronisation of the EU's stronghold, in conjunction with Member States’ increasing activities beyond their territorial borders, has muddied the already murky waters of jurisdiction. The critical question addressed herein is whether the airborne cooperation-based mechanisms with third countries – as a cutting-edge trend for bridling asylum-seekers and other migrants from reaching EU borders – are capable of insulating Member States from complicity and legal liability in ways that the first generation of pushback strategies were not. Could aerial surveillance, and the chain of events that unfolds because of such surveillance, be enough to establish a jurisdictional link? This contribution argues that the current understandings of jurisdiction are unable to capture new modalities of ‘soft’ and ‘detached’ control, which nonetheless result in violations of international human rights law and international refugee law. A dynamic and evolutive interpretation of jurisdiction that considers technological developments and their impact on the exercise of control, the contribution argues, is not only necessary, but also essential, to avoid protection gaps and unaccountability.
INTRODUCTION
Since the findings of the European Court of Human Rights (ECtHR) in Hirsi Jamaa and Others v. Italy, European states have progressively moved away from ‘direct’ forms of interdictions and pushbacks. Instead, ‘indirect’ or ‘privatised’ pushbacks (and pullbacks) have become predominant, albeit with some exceptions. In particular, the European Union (EU) and its Member States have largely invested in what might be called a schizophrenic attitude towards autonomous technologies for monitoring and securing border spaces. From unpiloted military-grade drones to sensor systems and experimental technology, autonomous technologies have been utilised as security/deterrent enablers in the Mediterranean and Aegean Seas for surveillance, interdiction and interception of migrants and refugees’ vessels.
European Yearbook on Human Rights 2023
- Edited by Philip Czech, Lisa Heschl, Karin Lukas, Manfred Nowak, Gerd Oberleitner
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- Published by:
- Intersentia
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- 04 April 2024
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- 30 November 2023
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The world is in a state of flux, and the wellbeing of humanity is challenged by old and new conflicts, climate change and a general threat to the rule of law and democracy. These challenges require novel and innovative approaches in relation to the interpretation of existing human rights frameworks if the impact of these new threats is to be mitigated.
Focusing on rethinking human rights, the European Yearbook brings together renowned scholars, practitioners and emerging voices to the discussion on the importance of changing our understanding of human rights and their fulfilment for the collective benefit of humanity in this time of constant change.
PART I - RETHINKING HUMAN RIGHTS
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Central European University, Budapest, Manfred Nowak, Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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Iryna Bogdanova (ed.): Unilateral Sanctions in International Law and the Enforcement of Human Rights: The Impact of the Principle of Common Concern of Humankind
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Central European University, Budapest, Manfred Nowak, Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- 30 November 2023, pp 685-688
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Summary
In contemporary times, the discourse surrounding sanctions has gained substantial prominence and attracted considerable attention. Particularly in the wake of Russia's illegal invasions of Ukraine, in 2014 and 2022, the legality and efficacy of sanctions have become subjects of intense scrutiny. It is within this context (though not yet addressing Russia's 2022 aggression) that Iryna Bogdanova's monograph emerges, offering a comprehensive analysis of unilateral economic sanctions in international law.
The book is structured into three parts and encompasses five substantive chapters, along with an introduction and conclusion. The monograph primarily revolves around the legality of unilateral economic sanctions (Part 1) and places special emphasis on sanctions imposed to redress severe human rights violations (Part 2). The third part, shorter than the previous sections, explores the doctrine of the common concern of humankind. This doctrine recognises that certain challenges possess the capacity to jeopardise international stability, peace and welfare, thus transcending national borders as shared issues of humankind. Bogdanova examines the potential contribution of this doctrine, which entails a number of normative obligations, to enhancing international human rights protection. She particularly explores whether it can provide a basis for legitimising unilateral human rights sanctions.
At the core of Bogdanova's argument lies the contention that the legality of unilateral economic sanctions remains a subject of controversy in international law, even when aimed at remedying serious human rights violations. However, she posits that the doctrine of the common concern of humankind presents a promising framework for legitimising unilateral human rights sanctions.
The monograph defines unilateral economic sanctions as ‘restrictive economic measures imposed by an individual state against another state and/or its government officials and bodies, legal entities and foreign nationals, in pursuance of political objectives and without any prior authorisation from an international or regional organisation’ (pp.5, 60). Consequently, the book does not cover sanctions imposed by the United Nations Security Council (UNSC) or autonomous sanctions adopted by the European Union (EU). Additionally, it does not address the unilateral measures states undertake to implement UN sanctions. Bogdanova thus subscribes to a broad notion of the term ‘sanction’. Nevertheless, she acknowledges the ongoing debate regarding whether the concept denotes only restrictive measures authorised by international organisations in accordance with their constituent documents.
Is the European Convention on Human Rights Equipped to Tackle the Plastic Crisis in the Mediterranean Sea?
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Central European University, Budapest, Manfred Nowak, Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- 30 November 2023, pp 105-138
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ABSTRACT
Plastic pollution constitutes a complex and severe problem of global scale. As plastic debris accumulates in nature, it increasingly finds its way back to humans through the food chain, the water and the air, with unknown consequences for human health, as well as for terrestrial and marine ecosystems. Additionally, it contributes significantly to the progressive deterioration of the planetary resources, affecting the enjoyment of human rights. The interdependence of human rights and environmental protection is largely recognised by international, regional and national legislation and case law. However, the relation between the human rights legal regime and the environmental legal regime is not straightforward on a dogmatic level. This contribution explores this connection with regard to the European Convention on Human Rights (ECHR), in relation to marine plastic pollution of the Mediterranean Sea.
To this end, the contribution summarises the state of the current academic debate, and the case law of the European Court of Human Rights, on the environmental dimension of recognised human rights, the procedural environmental human rights, and the human right to a healthy environment , with regard to the ECHR. Drawing on scientific assessments of the impacts of plastic pollution on marine ecosystems and humans, as well as on evolutions in international human rights law, the contribution explores arguments in favour of a state duty to protect against environmental harm caused by plastic pollution , under the ECHR, as well as conceptual challenges for the integration of environmental protection within the existing, intrinsically anthropocentric European human rights framework. Bridging environmental law and human rights law, the contribution further proposes a substantive content of a human right to a healthy environment, in respect of healthy oceans, under the European human rights regime, following the concept of ‘good environmental status’ rooted in the EU Marine Strategy Framework Directive.
INTRODUCTION
When the European Convention on Human Rights (ECHR)1 entered into force in 1953, it included neither a right to a healthy environment nor any other provisions regarding the protection of the environment. As an ‘old’ human rights treaty, the ECHR essentially enshrines civil and political rights and freedoms, which focus on the human as an individual being.
Contents
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Central European University, Budapest, Manfred Nowak, Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- 30 November 2023, pp xi-xiv
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Recognising Children Born Out of Surrogacy: A Review of the EU Draft Regulation on Cross-Border Parenthood
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Central European University, Budapest, Manfred Nowak, Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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ABSTRACT
Th is contribution critically reviews the European Commission's Proposal for a Regulation on the Recognition of Parenthood between Member States, adopted at the end of 2022. The contribution focuses on how the draft text deals with the cross-border recognition of children born out of surrogacy, linking human rights perspectives with a private international law analysis. By doing so, the contribution provides an overview of the relevant provisions of the Proposal, highlights problematic aspects with regard to surrogacy and children's rights, and tries to offer discussion points for the ongoing legislative procedure.
INTRODUCTION
In December 2022, the European Commission adopted a Proposal for a Regulation aimed at harmonising the rules of private international law related to parenthood within the European Union (EU). Parenthood established in one Member State would have to be recognised in all the other Member States. In addition to enhancing freedom of movement, the declared objective of the Proposal is to strengthen the protection of children's fundamental rights in cross-border situations, safeguarding, in particular, their right to an identity, and to family life. For these purposes, the Proposal sets out common rules on jurisdiction, applicable law and the recognition of decisions and authentic instruments, and introduces a European Certificate of Parenthood . What the Commission ultimately wants to achieve is to turn Commission President Ursula von der Leyen's famous statement into reality: ‘If you are parent in one country, you are parent in every country.’
Whether the statement also applies to surrogate-born children remains to be seen. Currently, parents who resorted to using surrogates in foreign countries are not only oft en confronted with burdensome and costly procedures when they try to have their parenthood status recognised in their country of origin, but might also have to face legal uncertainty. The situation is complicated by the different stands Member States have taken with regard to surrogacy. Some European countries do, under certain conditions, allow people (‘intended parents’ or ‘commissioning parents’) to engage a woman (‘surrogate’) for the delivery of a child. Others recognise children born out of surrogacy in relatively uncomplicated ways, even if the practice took place in a third country. Still other Member States are more reluctant when it comes to recognising parent-child relationships in surrogacy cases.
Sandra Fredman: Discrimination Law (Th ird Edition)
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Central European University, Budapest, Manfred Nowak, Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- 30 November 2023, pp 683-684
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Summary
Despite the recognition of the right to non-discrimination as a fundamental principle in international law, true equality remains elusive. This encourages a closer look at existing protection systems and their strengths and weaknesses. In her recent book, Sandra Fredman offers a comprehensive introduction to contemporary anti-discrimination law and frames it in its historical and social context. By conducting a comparative analysis of equality laws in the United States, India, Canada and South Africa, as well as the United Kingdom, the European Union, and the European Convention on Human Rights, the author critically examines the strengths and weaknesses in the various legal frameworks, and explores the reasons for their limited successes in achieving substantive equality.
The introductory chapter presents the complexity of ‘equality’ as a universal value, from a legal-philosophical perspective. It offers an examination of various theories on equality as the foundation of legislation, highlighting their inherent limitations and strengths. Moreover, the chapter focuses on the tension between the claim of non-discrimination and competing human rights, such as freedom of expression. Special attention is placed on the complex relationship between freedom, economic rights and the challenge of establishing a definitive hierarchy between the right to equality and other fundamental human rights.
Recognising that contemporary anti-discrimination law is embedded in a historical, political and cultural context, Fredman dedicates two chapters to the evolution of discrimination protection. The author concentrates on gender, ethnicity, religion, disability and age, as well as LGBTQIA + rights. She highlights societal challenges and corresponding legal responses, thereby establishing a connection to the contemporary legal framework in the nations under comparison.
In Chapters 4 and 5, the author undertakes a detailed analysis of the scope of discrimination law and how different legal systems address protected categories, delving into key concepts such as direct discrimination (unequal treatment) and indirect discrimination (unequal effects). Through this analysis, she highlights the central dilemma of equality law, which lies in differentiating between (unlawful) discriminatory acts against protected characteristics, and legitimate differentiation. Furthermore, Fredman assesses which characteristics should be protected at all costs, and identifies the common thread connecting all these protected characteristics. The chapter also explores the role of duty-bearers and the scope of anti-discrimination law, with a particular focus on the public and private spheres.
Editors’ Preface
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Central European University, Budapest, Manfred Nowak, Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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Summary
Dear readers,
When we, the editorial team, issued the call for the edition of the European Yearbook on Human Rights (EYHR) 2023, we had the idea to provide our readership with the most innovative academic scholarship on how the current human rights framework can be rethought and adapted to address challenges to humanity‘s wellbeing and future. And indeed, the challenges the world and humanity are facing and the issues at stake, require new and innovative approaches in thinking and adapting human rights frameworks – an understanding which also informed the title of this special issue “Rethinking Human Rights”. At a very crucial point in time, the European Yearbook on Human Rights 2023 as a platform for the discussion of important and topical human rights issues aims to prove the value and importance of human rights in addressing the most crucial threats to human wellbeing, including climate change, wars and the weakening of the rule of law and democracy. Contributions by both emerging and renowned scholars shed light on universal and individual human rights issues reflecting the complexities of the current times and showing the potential of human rights frameworks when applied and interpreted in an open way, putting equality, dignity and non-discrimination at the center.
Th is year‘s edition “Rethinking Human Rights” is divided into two parts. The first part is composed of 18 contributions dedicated to the whole spectrum of human rights. As is the tradition of the European Yearbook on Human Rights, the second part is dedicated to crucial developments in the jurisprudence of the European Courts – the European Court of Human Rights (ECtHR) and the European Court of Justice (CJEU) – in the field of human and fundamental rights.
The first five contributions are dedicated to climate change and the protection of the environment. Irene Sacchetti , in her contribution “Planetary Justice, Human Rights and the ECHR: Advancing Alternative Onto-Epistemologies to Face Climate-Related Challenges”, analyses human rights law through the lens of planetary justice, a conceptual framework which demands an expanded vision of justice beyond borders, across generations and for nonhumans, questioning the ability of the latter to deal with the intertemporal and interspecies dimensions of climatic harms.
Rethinking the Limits of Artistic Freedom: An Interdisciplinary Perspective on where to Draw the Line
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Central European University, Budapest, Manfred Nowak, Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- Book:
- European Yearbook on Human Rights 2023
- Published by:
- Intersentia
- Published online:
- 04 April 2024
- Print publication:
- 30 November 2023, pp 229-260
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Summary
ABSTRACT
In the name of morality, and under the auspices of political movements such as #MeToo and Black Lives Matter (BLM), novel demands for restrictions in artistic matters are on the rise, laying bare the historically relentless debate about the limits of artistic freedom. This paper examines the legal framework of artistic freedom and its limitations, on the basis of the European understanding of human rights, in particular in the context of politically and ethically dialectic concerns. Several case studies illustrate how creative freedom and its boundaries have been repeatedly challenged in the past, and how they are being called into question today. An exploration of the historic evolution of the artist's role and standing in society, from the Renaissance to the present day, introduces the notion of ‘artist's privilege’ , and links this to the present-day discords regarding the relation between the constitutional protection of artistic freedom, politics and morality. As such, the recent cases of ‘ethical art-boycott’, in Europe and the US, highlight how, as perceptions around contentious topics such as race and gender shift , the art world is confronted with the most fundamental strife – telling right from wrong; or, in the case at hand, politically correct from politically incorrect. In this sense, the controversies discussed, and deliberations on their implications in the legal sphere and beyond, bear witness to the cultural struggle between protecting our freedoms, addressing inequalities, and moving towards a fairer society.
INTRODUCTION
Currently, more and more restrictions in artistic matters are being demanded in the name of ethics or morality, under the auspices of political movements such as #MeToo and Black Lives Matter (BLM). Paintings are to be taken down, literary works are to be ‘cleaned’, film scenes to be cut, exhibitions prevented, and plays cancelled. Addressing unjust power structures and imbalances in the art world, and in society in general, controversial works of art, or those created by ethically reprehensible or even (allegedly) criminal artists, are to be withdrawn from public view. These debates, which have affected the art world across Europe and the US, are framed under terms such as ‘cancel culture’ and ‘political correctness’, and are viewed by some as an outright ‘culture war’. What lies at the base of these trends is the historically relentless debate about the limits of artistic freedom and, beyond that, the role of the artist in society.
Planetary Justice, Human Rights and the ECHR: Advancing Alternative Onto-Epistemologies to Face Climate-Related Challenges
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Central European University, Budapest, Manfred Nowak, Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- Book:
- European Yearbook on Human Rights 2023
- Published by:
- Intersentia
- Published online:
- 04 April 2024
- Print publication:
- 30 November 2023, pp 3-28
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Summary
ABSTRACT
Injustices driven by climate change as a result of human ecological destructive activities have become of a planetary level, impacting on the rights of present and future generations, humans and non-humans. The analysis of human rights law through the lens of planetary justice, a conceptual framework which demands an expanded vision of justice beyond borders, across generations, and for non-humans, reiterates the inability of existing human rights law to deal with the intertemporal and interspecies dimensions of climatic harms. This contribution evaluates developments in the context of the Council of Europe (CoE), including the filing of the first climate cases before the European Court of Human Rights, and the push for the recognition of the right to a healthy environment. In doing so, it argues that, despite these steps forward, human rights law remains inefficient to address intergenerational dimensions of justice in the context of climate change . As an attempt to overcome intrinsic obstacles of human rights law deriving from its Western orientation, the contribution explores the potential of informing the interpretation of human rights norms with alternative onto-epistemologies, to ultimately pollinate human rights with alternative ways of thinking. This may provide a way to navigate the unprecedented challenges posed, by climate change, to the human rights legal framework.
INTRODUCTION
Western predatory models and patterns of domination amongst humans, nonhumans and the environment continue today, and result in socio-ecological injustices and inequalities at the global level, affecting human and non-human entities’ rights, both in present and future times. Environmental degradation is the major result of the historic exploitation and subordination that characterised colonial practices.
Inexorable rhythms of unsustainable consumption, masked under the illusory and misleading label of ‘sustainable development’,
exacerbate systemic injustices and inequalities, and increase the vulnerability and future exposure of humans and ecosystems to climatic harms, as made clear by the recently released Synthesis Report of the Intergovernmental Panel on Climate Change (IPCC ) Sixth Assessment Report (AR6).
Kate Ogg: Protection from Refuge: From Refugee Rights to Migration Management
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Central European University, Budapest, Manfred Nowak, Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- Book:
- European Yearbook on Human Rights 2023
- Published by:
- Intersentia
- Published online:
- 04 April 2024
- Print publication:
- 30 November 2023, pp 681-682
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Summary
At first glance, it seems paradoxical to seek protection against a place of refuge. Reality shows, however, that many places to which people flee can oft en only nominally be considered a place of refuge. It is, therefore, important to ask what requirements can be imposed on places of refuge, and how case law defines this term. Kate Ogg not only provides a global and comparative study, but also analyses from a feminist perspective throughout the work, offering a unique and necessary insight from a gender perspective as well.
In the first chapter, the author shows all too vividly why protection of refuge claims exist in the first place: desolate shelters, lack of access to health care and education, and, sometimes, dangerous circumstances. It also gives a detailed insight into the way decision-makers give meaning to the term ‘refuge’. The legal bases for the claims vary, but it is recognised that decision-makers all face a similar set of issues, the resolution of which has international significance in terms of the adjudication of such cases. It also shows, here, that the study is extremely broad, both on an objective and a subjective level.
The second chapter indicates the multifaceted nature of refuge. Also, while the concept of refuge is a strong and resilient one, it is shown that the discrepancies between the ideal and the reality of refuge are sometimes enormous. Both the ideal and the reality of refuge enter the judicial domain when claims of protection of refuge are made. It is previewed how the author will use the notions of refuge outlined here to explore how decision-makers conceptualise refuge, and how they navigate these discrepancies.
Chapter 3 examines Kenyan judges’ approach to protection from refuge claims, specifically focusing on forced encampment litigation. The analysis of the landmark case Kituo Cha Sheria reveals that Kenyan judges have adopted a purposive approach, prioritising the diverse needs of refugees, taking into account their age, gender, family responsibilities and disabilities. However, subsequent court decisions indicate a shift whereby additional factors are required for human rights law protection, undermining the potency of human rights arguments in facilitating refugees’ search for sanctuary.
4 - North Korean Women’s Human Rights Activism
- Hyun-Joo Lim, Bournemouth University
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- Book:
- North Korean Women and Defection
- Published by:
- Bristol University Press
- Published online:
- 27 March 2024
- Print publication:
- 29 November 2023, pp 105-149
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Summary
Introduction
As suggested by Kotef (2015, pp 13–14), we should think of politics as movement, as collective action to subvert the status quo and turn the seemingly impossible into reality:
… to think of politics itself qua movement. Standing as an opposition to nature, to stable power structures, to a static state bureaucracy, politics brings the potential carried by instability: the potential of change, of widening the gaps allowing our agency, redistributing resources, and realigning power … The political is the domain in which and upon which humans can act, which humans can change.
When faced with a regime like the DPRK, such optimism seems vital. Having examined North Korean women’s stories of human rights violations in Chapter 3, in this chapter I focus on their activism. These activists’ narratives suggest that their harrowing experiences during their escapes and subsequent lives in China initially made them feel ashamed, especially as women, and therefore they managed their pain and trauma in silence. However, for each of them there had been a transitional phase, from victimhood to activism, although the extent of their involvement in activism could vary, contingent upon various factors. As demonstrated by Thalhammer (2001), individuals’ participation in human rights activism is heterogeneous, depending on variegated circumstances, such as whether they have been directly affected by the regime’s violence.
Such heterogeneity can also be found among my participants, deriving not only from the extent of their engagement but also from whether they have clearly articulable ideas and plans for the future. This is also influenced by their educational level and intellectual ability, alongside their commitment and dedication. By the same token, individuals’ participation in political activism is shaped by their education, occupation and income, which are interrelated with their gender and ethnicity (Norris, 2009). Similarly, some researchers have observed that a high educational level is an important contributing factor to becoming an activist (Ducan, 1999; Hall, 2019). However, this is not always the case for North Korean defectors’ activism. The educational levels of North Korean activists in the UK vary from those who are highly educated to those who have received middle- to high-school level qualifications.