7719 results in Intersentia
Part III - Human Rights Beyond Europe
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Ludwig Boltzmann Institut für Menschenrechte, Austria, Manfred Nowak, Global Campus of Human Rights, Venice and Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- 30 November 2022, pp 589-590
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Climate Change as a Children’s Rights Crisis: Procedural Obstacles in International Rights-Based Climate Litigation
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Ludwig Boltzmann Institut für Menschenrechte, Austria, Manfred Nowak, Global Campus of Human Rights, Venice and Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- 30 November 2022, pp 647-676
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ABSTRACT
The adverse effects of climate change on children’s life trajectories and human rights are widely recognised today. The negative impacts of climate change threaten children’s rights to life, health, food, water and sanitation, education, housing, culture, and development, among others. And while all children are exceptionally vulnerable to climate change, those who are already vulnerable or marginalised are, and will be, disproportionately affected. At the level of states, those whose populations are most vulnerable to the adverse effects of climate change have generally contributed the least to its causes and have fewer resources to mitigate climate change and protect their populations. Our contribution analyses how these different dimensions of justice have been addressed, thus far, in climate litigation, with a particular focus on youth-led climate cases recently filed before regional courts and international human rights bodies. It observes that procedural obstacles have hindered access to justice for children and young people in early rights-based climate cases. It then proceeds to reflect on the extent to which human rights bodies and courts can grapple with the procedural requirements of human rights litigation in a manner that aligns with the letter and spirit of human rights treaties, and responds to the legitimate expectations of those at the forefront of the climate crisis.
INTRODUCTION
Children are disproportionately affected by climate impacts both within and across societies. The United Nations Children’s Fund (UNICEF) has stated that, of today’s 1.8 billion young people, approximately 1 billion children live in states at ‘extremely high-risk’ of climate disasters, half a billion children live in areas of extremely high flood occurrence, 160 million children live in areas of high or extremely high drought risk, and 115 million children live in zones of high or extremely high tropical cyclone risk. Climate-related heatwaves, droughts and floods increase rates of vector-borne diseases, which disproportionately affect children. Further slow-onset events, such as sea level rise and resultant saltwater intrusion, threaten children’s access to clean water.
Morten Kjaerum, Martha F. Davis and Amanda Lyons (eds.): COVID-19 and Human Rights
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Ludwig Boltzmann Institut für Menschenrechte, Austria, Manfred Nowak, Global Campus of Human Rights, Venice and Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- 30 November 2022, pp 793-794
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Summary
London, Routledge, 2021, 348 pages, £ 27.99 (Paperback)
For the last two years, no topic has been nearly as ubiquitous as the COVID-19 pandemic and all its repercussions. Nearly every aspect of our lives has been impacted by it in some way or other, inducing not only multifarious measures concerning our different ways of life, but also causing enormous human suffering. In order both to assess the first year of COVID-19 policy-making, and to provide a guideline from a human rights standpoint, Kjaerum, Davis and Lyons bring together international human rights scholars, focusing on the various aspects of the ongoing crisis, its interdependencies, and the necessary reactions from a human rights perspective.
The book is divided into three parts, each consisting of a varying number of contributions by international human rights experts. Part I concerns ‘Human rights during health crises’, while the second part covers ‘Vulnerability and inequality’. In the third part, ‘Cornerstones for social cohesion’ are addressed. Rounding up the three parts and providing several proposals for action, the editors present their conclusions in a closing chapter.
The first part of the book, ‘Human rights during health crises’, gives insights into previous pandemics and the corresponding historical approaches, as well as the diversity of human health policies concerning the ongoing crisis. Demonstrating the historical development, the author shows how past pandemics laid the groundwork for the recognition of health as a fundamental right in the World Health Organization’s Constitution. The neglect of this right, occurring especially oft en in populist responses to the pandemic, leads to prioritising the collective or privileged groups over one person. Human rights approaches to COVID-19, instead, recognise the equal value of individuals, and are, therefore, more democratic and evidence-based. Reflecting these aspects, the authors elaborate on the necessity for a human rights approach, in view of the adverse effects that can be triggered by a pandemic, for instance stigmatising infected people or groups unable to isolate themselves sufficiently. Therefore, it is of great importance to put a great effort into clear and understandable risk communication, allowing people to adequately form opinions on the matter.
The International Debate on AI Regulation and Human Rights in the Prism of the Council of Europe’s CAHAI: Great Ambitions
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Ludwig Boltzmann Institut für Menschenrechte, Austria, Manfred Nowak, Global Campus of Human Rights, Venice and Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- 30 November 2022, pp 225-252
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ABSTRACT
Over the past two years, the international debate on artificial intelligence (AI) regulation has clearly escalated, with several initiatives led by the United Nations (UN), the Organisation for Economic Co-operation and Development (OECD), and the Council of Europe (CoE). Furthermore, at a regional level, the European Union (EU, the Union) proposal on a future regulation on AI, and several national strategies, have created fertile ground for a more mature and elaborate debate. In this regard, the initiative of the CoE, with the establishment of the Ad Hoc Committee on Artificial Intelligence (CAHAI), with its multi-stakeholder approach, the different legal cultures of Member States and Observers, and stakeholder participation process, offers an interesting case study on the tensions underpinning the ongoing regulatory process. Leaving aside the variety and creativity of ethical guidelines, developing binding provisions on AI entails addressing important and challenging issues relating to the scope of the regulation; the interplay between international, national and soft law; different approaches in crucial areas (dual-use technology, national security, deference, public sector, liability, etc.); and the role and nature of future AI supervisory authorities. In this contribution, we analyse all these different elements not only from a traditional legal perspective, focused on the main outcomes of the CAHAI, but also by looking at the process and highlighting the underlying tensions, different points of view, consultation methodologies and the dynamics that make the dialogue on AI regulation an extremely interesting laboratory for human rights law. The overall focus of our analysis is on the ambitions that characterise the debate on AI regulation, and how the initial high expectations of addressing crucial human rights issues risk being frustrated and limited to a general riskbased approach, as well as a minimalist regulation which looks more to industry and economic benefi ts than to human rights. This is occurring at a time when several academic researchers suggest adopting a broader perspective on the AI industry by considering its entire supply chain from a human rights standpoint, which also has relevance for the role of human rights in international business and competition.
List of Contributors
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Ludwig Boltzmann Institut für Menschenrechte, Austria, Manfred Nowak, Global Campus of Human Rights, Venice and Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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Part II - Council Of Europe
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Ludwig Boltzmann Institut für Menschenrechte, Austria, Manfred Nowak, Global Campus of Human Rights, Venice and Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- 30 November 2022, pp 203-204
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Contents
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Ludwig Boltzmann Institut für Menschenrechte, Austria, Manfred Nowak, Global Campus of Human Rights, Venice and Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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Sören Stapel: Regional Organizations and Democracy, Human Rights,and the Rule of Law: The African Union, Organization of AmericanStates, and the diffusion of Institutions
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Ludwig Boltzmann Institut für Menschenrechte, Austria, Manfred Nowak, Global Campus of Human Rights, Venice and Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- 30 November 2022, pp 785-788
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Summary
Cham, Palgrave Macmillan, 2022, 349 pages, € 109.99 (Hardcover)
Stapel’s book examines why regional organisations create ‘regional institutions’, and how such institutions are implemented. Regional institutions are ‘sets of rules and standards that govern the behaviour of states’ within or of a regional organisation [3]. The book focuses on regional institutions that promote and protect democracy, human rights, and the rule of law. According to Stapel, of the 73 regional organisations in the world, more than 40 had adopted at least one of the three fundamental governance standards by 2020 [5,7], and only about 20 have not yet adopted any of these three standards. This monograph discusses the adoption and design of these regional institutions, but without addressing their effects and effectiveness [4]. The adoption and design of democracy, the rule of law, and human rights institutions in regional organisations depend, pursuant to the central argument of the book, on two different factors that affect each other: demands and diffusion [11 et seq]. On the one hand, these fundamental governance standards are fleshed out according to the interests of the Member States in pursuing their distinct objectives (‘demands’). And, on the other hand, regional organisations will model their institutions after those already existing in other regional organisations (‘diffusion’). In the analysis, Stapel employs a mixed methods approach [cf. 15 et seq]. He fi rst analyses data collected in two so-called ‘GTRO-data sets’ (acronym undefi ned) that he developed [90 et seq], before empirically testing the interplay between demand and diffusion. The analysis is complemented by two case studies that examine, in detail, the governance standards of the Organization of American States (OAS), on the one hand [201 et seq], and the African Union (AU) and its predecessor, the Organization of African Unity (OAU), on the other [237 et seq]. The selection of these two case studies already suggests that the book follows a different path to comparable works in the field.
Jeroen Temperman: Religious Speech, Hatred and LGBT Rights –An International Human Rights Analysis
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Ludwig Boltzmann Institut für Menschenrechte, Austria, Manfred Nowak, Global Campus of Human Rights, Venice and Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- 30 November 2022, pp 795-796
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Leiden, Koninklijke Brill NV, 2021, 116 pages, € 84.00
Hate speech is often used as a tool for discriminating against people that belong to a marginalised group or minority. When it comes to the LGBTQIA+ community, hateful expressions oft en contain a religious background. Phrases such as ‘homosexuality is a sin!’ , ‘homosexuals will go to hell!’ or ‘it goes against God!’ are only a few examples of homophobic/transphobic hate speech. This poses a special dilemma, from a legal perspective, as, on the one hand, the right to freedom of religion and belief (FORB), as well as the right to freedom of expression, are expressly stated in various international human rights sources, whereas, on the other hand, international provisions banning discrimination do not explicitly include discrimination on the grounds of sexual orientation or gender identity.
In his book Religious Speech, Hatred and LGBT Rights, Jeroen Temperman deals with this dilemma, and questions such as: what constitutes as hate speech under international and regional standards? Where does the line lie between freedom of expression, religion or belief and the prohibition of discrimination? Can a right against discrimination on the basis of sexual orientation and gender identity be derived from international obligations without being expressly named therein? To what extent can homophobic/transphobic speech be justified when quoting religious beliefs?
By giving an extensive and comprehensive overview of the legal framework and existing case law on a national, regional and international level, the author methodically answers these questions, and establishes a possible benchmark for balancing FORB and LGBTQIA+ rights. He first addresses the problem of whether the LQBTQIA+ community can, in fact, be qualified as a group that is protected against incitement and discrimination under international human rights law. He concludes that such a qualification is not only possible, but is indicated, and is already in practice. The UN Human Rights Committee, as well as the European Court of Human Rights (ECtHR), have recognised LGBTQIA+ rights, making a balancing of rights, and thus a limitation of other substantial rights, possible.
The CJEU Faced with ‘Presumption of Innocence’ Directive 2016/343: Reshaping the ECHR Standards?
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Ludwig Boltzmann Institut für Menschenrechte, Austria, Manfred Nowak, Global Campus of Human Rights, Venice and Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- 30 November 2022, pp 137-176
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ABSTRACT
The presumption of innocence has traditionally been considered a key component of the right to a fair trial, now stipulated in Article 6 of the European Convention on Human Rights (ECHR) and Article 48 of the Charter of Fundamental Rights of the European Union (CFREU). Despite the crucial significance of this guarantee for the integrity of (supra)national judicial systems, a multiplicity of issues has arisen in the European Union (EU) legal order due to the European Arrest Warrant enforcement, diverse national pre-trial detention and in absentia trials regimes, etc. The adoption of ‘Presumption of Innocence’ Directive 2016/343 was an attempt to overcome these challenges, and to lose the potential divergence between the national, CFREU and ECHR standards of protection afforded to EU individuals. The aim of this contribution is to shed light on the way Directive 2016/343 is perceived by the Court of Justice of the European Union (Luxembourg Court, CJEU), with special emphasis on the correspondence of the ECHR/CFREU standard of protection being afforded. The main argument presented is that the earlier CJEU case law on Directive 2016/343 already demonstrated the EU’s willingness to provide the minimum standard required by the ECHR and the European Court of Human Rights (ECtHR, Strasbourg Court) jurisprudence in this area (AH, UL/VM, QR), while some lines of the CJEU’s reasoning even allow a question to be posed about the possible derogation from the Strasbourg Court’s lowest standard of protection (Milev II, RH, DK). Moreover, such an unexpected development as the reform of the Polish judiciary presumably adds a new angle to the ongoing judicial dialogue between the Luxembourg and Strasbourg Courts. In the recent WB and Others case, the CJEU found the Polish legislation allowing the Minister for Justice to second judges to higher courts for an indefinite period, and to terminate that secondment at his own discretion, on the basis of criteria which had not been made public, incompatible with the requirements arising from the presumption of innocence stemming from Article 6 of Directive 2016/343 (‘Burden of Proof’) read in conjunction with Article 2 (EU values) and Article 19(1) (effective judicial protection) TEU.
The Freedom of Expression of the Judiciary as a Special Case of StatePersonnel: A European Human Rights Perspective
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Ludwig Boltzmann Institut für Menschenrechte, Austria, Manfred Nowak, Global Campus of Human Rights, Venice and Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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ABSTRACT
While holding public office may justify restrictions on the use of fundamental freedoms, the question arises as to how far such restrictions should go. The answer to this question is of great public interest, since the level of transparency of the civil service and the associated right to speak, or ban on speaking, is a measure of its democratic character. If we consider freedom of expression as a way of discovering the truth, giving sufficient protection to civil servants’ freedom of expression is paramount. This contribution focuses on the freedom of expression of a special case of state personnel: the judiciary. Even though the judiciary does not form part of the ordinary civil service, the duty of loyalty and discretion also applies to this third branch of government. According to settled case law, the judge is required to show restraint when the authority and impartiality of the judiciary come into question. At the same time, the European Court of Human Rights (ECtHR) has considered that, having regard, in particular, to the growing importance attached to the separation of powers and the importance of safeguarding the independence of the judiciary, any interference with the freedom of expression of a judge calls for close scrutiny. This contribution examines how the general ethical duties of civil servants, such as the duty of loyalty, discretion and (political) neutrality, could be applied in the case of the judiciary. On the basis of the analysis of the ECtHR case law, the contribution concludes that the obligations of discretion and neutrality, which apply to civil servants, are also applicable to judges, but the rationale behind this is different, namely to safeguard the independence and impartiality of the judiciary.
INTRODUCTION
Freedom of expression has particular significance in relation to the proper functioning of the constitutional democratic process. This freedom distinguishes open from closed, and liberal from authoritarian, societies. While holding public office may justify restrictions on the use of fundamental freedoms, the question arises as to how far such restrictions should go. The answer to this question is of great public interest, since the level of transparency of the civil service and the associated right to speak, or ban on speaking, is a yardstick of its democratic character.
Practical Perspectives of Universal Jurisdiction in the OSCE Region: Factors to Ensure Accountability of Perpetrators for Torture
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Ludwig Boltzmann Institut für Menschenrechte, Austria, Manfred Nowak, Global Campus of Human Rights, Venice and Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- 30 November 2022, pp 591-620
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ABSTRACT
Organization for Security and Co-operation in Europe (OSCE) participating States have repeatedly expressed concern about the persistence of cases of torture and other ill-treatment, partly due to ongoing impunity for the perpetrators. One way to ensure that perpetrators are held to account is by universal jurisdiction, whereby a state is allowed, under its domestic laws, to prosecute crimes committed outside of its territory, and where neither the perpetrator nor the victim is their own citizen. There are many scholarly articles analysing the legal basis for pursuing universal jurisdiction, as well as those documenting the numerous challenges associated with it. However, less literature is available depicting lessons learned and practical factors that contribute to successful prosecutions. This contribution will examine key factors for successful litigation, in practice, using universal jurisdiction, referencing cases in OSCE participating States, so as to contribute to combating impunity for perpetrators, and thereby also disincentivising the use of torture or other ill-treatment.
INTRODUCTION
The necessity of holding perpetrators of serious human rights violations to account has, unfortunately, become even more poignant. Recourse to international judicial mechanisms has been heavily covered in the media following Russia’s military attack in Ukraine. The international armed conflict has certainly increased global attention with respect to accountability for international crimes. On 28 February 2022, the International Criminal Court (ICC) prosecutor sought authorisation to open an investigation into the situation in Ukraine, and on 2 March 2022 confi rmed that his offi ce has received referrals of the situation in Ukraine from 39 ICC States Parties. On 3 March 2022, and following consultation with Ukraine, 45 OSCE participating States invoked the Moscow Mechanism in order to ‘address the human rights and humanitarian impacts of the Russian Federation’s invasion and acts of war, supported by Belarus, on the people of Ukraine, within Ukraine’s internationally recognised borders and territorial waters’. Such a mechanism is important for the documentation of human rights violations.
Earlier this year, in January 2022, the Koblenz court in Germany convicted a senior Assad government official, Anwar R, for crimes against humanity in Syria. The court found him guilty of being the co-perpetrator of torture, 27 murders, and cases of sexual violence and other crimes in the al-Khatib Branch.
Editors’ Preface
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Ludwig Boltzmann Institut für Menschenrechte, Austria, Manfred Nowak, Global Campus of Human Rights, Venice and Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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Summary
Dear readers,
We are living in a state of multiple crises: an obvious but still neglected climate crisis; a health crisis with an ongoing pandemic; an economic and financial crisis closely related to an energy crisis; and a human security crisis reflected in the many violent conflicts, new and long-lasting, around the globe. Responses to crises are often emotional, populist and fear-induced. In order to maintain and solidify their power and pursue their interests, governments tend to use crises to create a permanent state of exception, legitimating measures that under ‘normal’ circumstances might have been unthinkable. On the other hand, crises unsettle people – people lose trust in political systems, the media or the rule of law in general. Human rights and violations thereof are at the core of these dynamics; ultimately, crises are a symptom of the fragility of the human rights system, and the disregard by states of rights commonly agreed upon by the international community. At the same time, the doubts about institutions, democratic systems and the rule of law are also an expression of a lack of trust in human rights. What we need, thus, is to regain control over the human rights discourse, in order to be able to respond profoundly to the violation of human rights, and to re-establish trust in them, and the system established to implement them, by showing that human rights are more than just written words. As a platform for the discussion of important and topical human rights issues, the European Yearbook on Human Rights 2022 aims to make a contribution towards ensuring that future responses to crises not only pay respect to human rights but are rooted in them. Differently from the previous editions, which were dedicated to specific topics (the 2021 edition was dedicated to ‘Human Rights in Times of a Pandemic’ , and the 2020 edition to the rights of the child), the EYHR 2022 takes a broad approach to various topical human rights issues in Europe and beyond.
Mitigating Human Rights Challenges by Fostering Urban Resilience: A Case Example of Graz, Austria
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Ludwig Boltzmann Institut für Menschenrechte, Austria, Manfred Nowak, Global Campus of Human Rights, Venice and Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- 30 November 2022, pp 677-702
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ABSTRACT
The Human Rights City of Graz has been confronted with the constant deterioration of its housing sector over the years. Several negative trends and developments, for example increasing rents, residential segregation, and discriminatory practices in the private housing sector, and in community housing, have put pressure on the quality of life of citizens, thereby increasing inequalities between different population groups. Consequently, the right to adequate housing is not being fulfilled in an equal manner for all citizens, which poses a substantial human rights challenge for the city government. The outbreak of the COVID-19 pandemic made visible the great importance of an adequate housing space. At the same time, it revealed the significant lack of ability of the local government to respect and respond to the varying and often complex needs of citizens in this regard. This considerably weakens the city’s resilience. The local government in Graz committed itself to mitigating local human rights shortcomings, and is supported in this endeavour by the Human Rights Council of the city, which conducts a regular monitoring of the human rights situation by means of the annual Human Rights Report (HRR). This contribution elaborates the newly developed methodology of the 2021 HRR, which puts the city’s overall resilience at its core. The discussion focuses on how urban resilience and the human rightsbased approach provide a holistic framework to combat the deterioration of the housing sector in Graz. It concludes with key findings and recommendations for local-level decision-makers, and makes the case for urban resilience as a concept relevant to solving human rights challenges holistically at the local level.
INTRODUCTION
The local government of the Human Rights City of Graz, Austria, committed itself to considering human rights challenges at the local level, and it strives for their effective mitigation. It is supported in this endeavour by the Human Rights Council (HRC), a vital human rights institution in the city. The Council conducts human rights monitoring of the city by means of its annual Human Rights Report (HRR).
The Evolving Jurisprudence of the European Court of Human Rights on Domestic Abuse
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Ludwig Boltzmann Institut für Menschenrechte, Austria, Manfred Nowak, Global Campus of Human Rights, Venice and Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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ABSTRACT
This contribution discusses the ways in which the jurisprudence of the European Court of Human Rights (ECtHR) on the issue of domestic abuse has evolved in recent years, with a particular focus on three aspects. Firstly, the way in which domestic abuse has been conceptualised has developed significantly. Initially the approach taken by the Court concerning the Articles of the European Convention on Human Rights (ECHR) on which it based its findings of violations in cases involving domestic abuse was somewhat incoherent in terms of the use of Articles 3 and 8. However Article 3 is now used much more extensively in such cases, and the question has become whether domestic abuse should be expressly held to fall within the ‘torture’ limb of this provision. Secondly, the Court has recently recognised that ‘cyberbullying’ can constitute domestic abuse. Thirdly, questions have arisen as to how the ‘Osman test’ should be applied in cases involving domestic abuse, and this matter was clarifi ed in June 2021 by the Grand Chamber in its judgment in Kurt v Austria .
INTRODUCTION
Domestic abuse affects vast numbers of victims around the globe, and has become even more prevalent in the context of the lockdown measures imposed by many states in the context of the COVID-19 pandemic. Although it is only relatively recently that domestic abuse has been recognised as constituting a human rights issue, during the last 15 years cases involving such abuse have been addressed at regular intervals by the ECtHR, and violations of Articles 2, 3, 8 and 14 of the ECHR have been found in such cases. This contribution investigates three aspects in which the case law of the ECtHR on domestic abuse has evolved, with a particular focus on recent judgments.
Firstly, the contribution seeks to explore the way in which domestic abuse has been conceptualised by the ECtHR. As will be discussed, initially the approach taken by the Court concerning the Articles of the ECHR on which it based its findings of violations in such cases was somewhat incoherent in terms of the use of Articles 3 and 8.
The EU’s Role in Addressing Human Rights Violations in Hong Kong: Realistic Expectations or Pie in the Sky?
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Ludwig Boltzmann Institut für Menschenrechte, Austria, Manfred Nowak, Global Campus of Human Rights, Venice and Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- 30 November 2022, pp 177-202
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ABSTRACT
Over more than two years, the territory of Hong Kong has faced a major political crisis with an unprecedented wave of public protests. In response to initially peaceful gatherings, the police deployed water cannon and fired lesslethal projectiles and huge quantities of tear gas, often indiscriminately, leaving hundreds of demonstrators and bystanders injured. Without doubt, the European Union (EU) cannot stand by idly, but has to act as a credible and potent human rights advocate beyond its own borders. In resolutions adopted in 2020 and 2021, the European Parliament called upon EU members to initiate proceedings against China before the International Court of Justice for its violations of fundamental human rights. This contribution explores the circumstances, limits and constraints under which such proceedings could be brought against China, in particular for breaches of the International Covenant on Civil and Political Rights. Most importantly, China itself has never ratified the Covenant, but its applicability on the territory of Hong Kong is guaranteed indirectly by the Joint Declaration of 1984 and the Hong Kong Basic Law. It is of utmost importance for the European Parliament to base its arguments on solid legal grounds in order to guarantee its credibility when exerting pressure on the Chinese government. Since the legal hurdles, as will be shown, are almost unsurmountable, the contribution also considers alternative avenues to accountability before the Court, such as imposing sanctions against Hong Kong and Chinese state officials under the EU Global Human Rights Sanctions Regime.
INTRODUCTION
Over the course of several years, Hong Kong faced a major political crisis with an unprecedented wave of public protests and mass demonstrations. In response to initially peaceful gatherings, police forces reacted violently, using water cannon and firing kinetic projectiles and huge quantities of tear gas, often indiscriminately, leaving hundreds if not thousands injured. The actions of the authorities have been well documented by the media, non-governmental organisations (NGOs) and states, as well as by United Nations (UN) special procedures. The nature and extent of the repression transformed peaceful protests into violent upheaval, adding to the Special Administrative Region’s political turmoil.
Part I - European Union
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Ludwig Boltzmann Institut für Menschenrechte, Austria, Manfred Nowak, Global Campus of Human Rights, Venice and Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- European Yearbook on Human Rights 2022
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- 20 April 2023
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- 30 November 2022, pp 1-2
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The Employment Equality Directive and Access to Justice for Persons with Disabilities: Some Refl ections in Light of Tartu Vangla and Komisia za Zashtita ot Diskriminatsia
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- By Delia Ferri, Léa Urzel
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Ludwig Boltzmann Institut für Menschenrechte, Austria, Manfred Nowak, Global Campus of Human Rights, Venice and Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- 30 November 2022, pp 75-104
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ABSTRACT
By establishing a general framework for equal treatment in employment and occupation, Directive 2000/78 (Employment Equality Directive ) provides the basis to tackle discrimination on a number of grounds, including disability. Since the seminal decision in HK Danmark , released in 2013, the Court of Justice of the European Union (CJEU) has interpreted the Employment Equality Directive in light of, and in compliance with, the United Nations (UN) Convention on the Rights of Persons with Disabilities (CRPD), which was concluded by the European Union (EU) alongside its Member States. In spite of some false steps and setbacks, the CJEU has progressively embraced the social-contextual conceptualisation of disability enshrined in Article 1 CRPD, and highlighted the role of reasonable accommodation in dismantling barriers faced by persons with disabilities in employment contexts. In that regard, the CJEU’s case law on the Employment Equality Directive has contributed to the protection of the right to work of people with disabilities on an equal basis with others. In 2021, the CJEU released two significant decisions, in the cases of XX v Tartu Vangla and TC, UB v Komisia za zashtita ot diskriminatsia and VA . While those decisions do not depart from previous jurisprudence, they represent important milestones in the advancement of disability rights at the EU level. In both Tartu Vangla and Komisia za zashtita ot diskriminatsia, individuals with disabilities were denied the possibility of working in the judicial system, respectively as prison officers and as jurors, on the premise that their disabilities would prevent them from performing the expected duties. Ruling on the prohibition of discrimination on the ground of disability, the CJEU stressed the importance of providing reasonable accommodation to ensure equal treatment of persons with disabilities working in the justice system. The CJEU made no explicit reference to Article 13 CRPD on access to justice. Yet, this contribution argues that, in its effort to ensure the equal enjoyment of the right to work within a judicial setting, the Court used the Employment Equality Directive to advance access to justice for persons with disabilities. While the organisation of justice remains a competence of the Member States, this contribution contends that the CJEU effectively relies on non-discrimination to support the implementation of Article 13 CRPD.
Index
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Ludwig Boltzmann Institut für Menschenrechte, Austria, Manfred Nowak, Global Campus of Human Rights, Venice and Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- 30 November 2022, pp 799-801
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Exploring Narratives about ‘Cancel Culture’ in UK Educational/Employment Settings under the ECHR
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Ludwig Boltzmann Institut für Menschenrechte, Austria, Manfred Nowak, Global Campus of Human Rights, Venice and Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- European Yearbook on Human Rights 2022
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- 30 November 2022, pp 309-344
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Summary
ABSTRACT
Some advocates of free speech are currently arguing that universities and other organisations are far too prompt to accept curbs on expression or expressive acts in relation to issues such as transgender rights, racism, feminism and religious extremism. Such curbs tend to be aimed at offence-avoidance: as a result, such advocates argue that debate on these and cognate issues is, in some instances, being silenced. But other commentators oppose this view, arguing that merely allowing the airing of all sorts of views offensive to some facilitates intolerance and opposes equal dignity. Against the background of such ongoing debates on the concept of the so-called ‘cancel culture’ affecting some institutions, especially universities, this piece will interrogate various restrictions on expression that some view as linked to that concept. This contribution will then place such restrictions within the European Convention on Human Rights (ECHR) framework by considering the balance to be struck between freedom of expression as protected under Article 10 ECHR, on the one hand, and the interest of minority and/or marginalised groups not to be confronted with opinions or viewpoint-based behaviour that may denigrate them, on the other. The contribution seeks to come to some conclusions on ways to achieve this balance, taking account of the standards set by relevant ECHR jurisprudence. It will ask, fundamentally, whether or how far the concept of curbing lawful but arguably harmful expression is compatible with those standards.
INTRODUCTION
This contribution sets out to scrutinise closely conflicting narratives about so-called ‘cancel culture’ in the UK in educational and employment settings, especially in the campus context. The contested idea that a person can be ‘cancelled’ – their views excluded or expunged from public platforms, or from an employment context – has polarised debate. Certain advocates of free speech are currently arguing that educational organisations, in particular universities, and some employers, have allowed so-called ‘cancel culture’ to stifle free expression. It has been argued that some institutions are far too prompt to accept curbs on expression or expressive acts in relation to issues such as transgender rights, racism, feminism and religious extremism.