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Home Archive for category "Human Rights"

Parliaments as Human Rights Actors – Proposed Standards from the UN

Published on June 21, 2018        Author:  and
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On 13 June 2018, the UN Office of the High Commissioner for Human Rights (OHCHR) released its report on the Contribution of parliaments to the work of the Human Rights Council and its universal periodic review, which will be discussed at the Human Rights Council session starting 18 June. The report includes a welcome proposal for a set of standards – the draft Principles on Parliaments and Human Rights – that cover the (i) mandate; (ii) responsibilities and functions (both domestically and vis-à-vis the international human rights system); and (iii) composition and working methods of a parliamentary human rights committee.

We have been advocating for the adoption of standards for four years, and in 2017 we published suggestions for the content of such standards in a chapter in Saul, Follesdal & Ulfstein (eds.) The International Human Rights Judiciary and National Parliaments (CUP) based on our work on this topic since 2013, and on outline standards presented at a Human Rights Council side event in 2014. This post discusses the importance of the proposed UN standards, and what needs to happen next.

Why should parliaments engage with the UN human rights mechanisms?

When we consider human rights actors on the domestic level, we typically think of the executive, the judiciary, the national human rights institution (NHRI), and civil society. But parliaments can also play a vital role. They can oversee the actions of the executive by ensuring that laws, policy and practice are in compliance with international human rights commitments. Yet, many parliaments do not fulfil this role. The OHCHR report and draft Principles could be crucial in encouraging greater parliamentary engagement on human rights. Read the rest of this entry…

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The Aquarius incident: navigating the turbulent waters of international law

Published on June 14, 2018        Author:  and
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Between Saturday 9 June and Sunday 10 June, 629 migrants were rescued from overcrowded boats in the Central Mediterranean in search and rescue (SAR) operations carried out by NGOs and the Italian navy. They were taken on board by the Aquarius, a rescue vessel operated by the German NGO SOS Méditerranée and flying the flag of Gibraltar. On Sunday, the Aquarius was on its way to Italy, whose Maritime Rescue Coordination Centre (MRCC) had coordinated the operations. Around 35 nautical miles off the southern coast of Italy, Italian authorities ordered the Aquarius to stop. Italy refused the Aquarius access to its ports and prohibited disembarkation of the rescued migrants on Italian territory. This, Italy’s new Minister of the Interior Matteo Salvini announced, would be Italy’s new policy for any NGO vessel rescuing migrants in the Mediterranean.

Italy’s instructions ‘manifestly go against international rules’, Malta’s Prime Minister Joseph Muscat tweeted on Sunday night, but then himself denied the ship to dock in the port of Valletta. Malta in turn, Muscat claimed, was thereby acting in full compliance with international law. For another 24 hours, the Aquarius remained on stand-by, floating between Malta and Italy. Maltese and Italian vessels supplied the Aquarius with water and food, but neither of them gave in by offering safe haven.

On Monday, Spanish Prime Minister Pedro Sánchez announced that Spain could facilitate disembarkation of all 629 rescued individuals in the port of Valencia. When it appeared that this journey would be too dangerous for passengers and crew of the Aquarius and the Valencia-plan seemed off the table again, Italy offered its ships to facilitate safe passage to Spain.

This whole episode raises a broad variety of questions, but one stands out: Are Italy and Malta violating international law by not allowing the Aquarius to find a safe haven in one of their ports? Two legal regimes are particularly relevant in this respect: the law of the sea and international human rights law. As we argue, neither provides much clarity in relation to Aquarius-like incidents. Read the rest of this entry…

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Lost Between Law Enforcement and Active Hostilities: A First Glance at the Israeli Supreme Court Judgment on the Use of Lethal Force During the Gaza Border Demonstrations

Published on June 4, 2018        Author: 
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In response to the ongoing violent clashes between the Israeli Defence Forces (IDF) and Palestinian protesters during the so-called ‘March of Return’ along the Gaza border fence several Israeli human rights organizations petitioned the Israeli Supreme Court, challenging the IDF’s rules of engagement, as well as their implementation. The arguments put forward by the petitioners and the Israeli Government, as well as the legal issues involved were  discussed in advance of the Court’s judgment by Eliav Lieblich and Yuval Shany (here and here). Last week, the Israeli Supreme Court, sitting as the High Court of Justice, handed down its decision, which unanimously rejected the petitions. Although the judgment seems to be flawed on several issues, it nevertheless includes a couple of interesting statements regarding the relationship between law enforcement operations and active hostilities in armed conflict. An initial analysis of the decision has been published by Amichai Cohen and I should say at the outset that I share some of his conclusions. Those aspects of the decision that relate to international law will probably spark mixed feelings. As mentioned by Cohen, the fact that the Court explicitly endorsed the ICRC’s Interpretive Guidance on Direct Participation in Hostilities is certainly a welcome development. However, the fact that the justices refused to discuss the applicability of international human rights law (IHRL) in situations of armed conflict; that they invented an obscure new law enforcement paradigm; and expanded the notion of ‘imminent threat’ to allow for the preventive use of lethal force, less so. Read the rest of this entry…

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MDAC v Belgium before the European Committee of Social Rights: The Right to Inclusive Education Pushed by the UN Convention on the Rights of Persons with Disabilities

Published on June 1, 2018        Author: 
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Around the world, the great majority of disabled children are out-of-school. In Western countries, they are often educated in so-called ‘special schools’, which give them lower educational standards and impede their inclusion into society. In a recent case about the issue, the European Committee of Social Rights has found Belgium in breach of the European Social Charter. This case was lodged by Validity – formerly the Mental Disability Advocacy Center (MDAC). The parties were notified of the decision on 28 November 2017, but this decision was only made public on 29 March 2018.

The Charter, adopted in 1961, revised in 1996, and known for its à la carte provisions, contains two provisions on the right to education. Article 15(1) provides that States Parties must grant disabled people ‘education and vocational training in the framework of general schemes wherever possible’. Article 17(2), more generally, guarantees that children have access to ‘free primary and secondary education’. The Committee ruled that Belgium violated both of them.

This decision surely comes as a relief for the many parents of disabled children. I also want to stress an important point emerging from the MDAC v Belgium case. The outcome is proof of the filtering of international developments into the Council of Europe. Read the rest of this entry…

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Filed under: EJIL Analysis, Human Rights
 

Visions of the ‘Right to Democratic Governance’ under International Law: The Complexities of the Philippines under Duterte

Published on May 24, 2018        Author: 
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Is international law any closer to defining the content of a “right to democratic governance”? International human rights law instruments do not prescribe a form of governance, but they do explicitly refer to consistency with the needs of a “democratic society” when they admit limitations or restrictions to certain rights and freedoms.  Thus, the Universal Declaration of Human Rights refers to limitations to rights and freedoms determined by law and which meet “the just requirements of morality, public order and the general welfare in a democratic society.” (UDHR, Article 29(2). The International Covenant on Civil and Political Rights (ICCPR) enumerates specific civil and political rights and freedoms, but only refers to the needs of a “democratic society” when it speaks of permissible restrictions on press and public participation in court hearings [ICCPR Article 14(1)], restrictions to the right to peaceable assembly [ICCPR Article 21], and restrictions to the right to freedom of association [ICCPR Article 22(2)].  The general limitations clause in Article 4 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR) refers to “such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.”  The United Nations paints a broad brush on democracy as the enabling environment for the realization of human rights:

“Democracy, based on the rule of law, is ultimately a means to achieve international peace and security, economic and social progress and development, and respect for human rights – the three pillars of the United Nations mission as set forth in the Charter of the UN. Democratic principles are woven throughout the normative fabric of the United Nations….The UN has long advocated a concept of democracy that is holistic: encompassing the procedural and the substantive; formal institutions and informal processes; majorities and minorities; men and women; governments and civil society; the political and the economic; at the national and the local levels. It has been recognized as well that, while these norms and standards are both universal and essential to democracy, there is no one model: General Assembly resolution 62/7 posits that “while democracies share common features, there is no single model of democracy” and that “democracy does not belong to any country or region”. Indeed, the ideal of democracy is rooted in philosophies and traditions from many parts of the world. The Organization has never sought to export or promote any particular national or regional model of democracy.” (UN Guidance Note of the Secretary-General on Democracy, at p. 2).

There is no shortage of international legal scholarship examining different facets of “democracy”, whether as a separate right of individuals or peoples under international human rights law, or as an emerging norm of governance under international law.  Thomas Franck wrote in 1992 about the “emerging right to democratic governance” under international law, anchored on the notions of “democratic entitlement” and a “separate and equal status in the community of nations” – all traceable to the fundamental human right to self-determination.  In the same year, Gregory Fox also published a landmark article with the Yale Journal of International Law, this time on the specific right to political participation in international law, based on the ICCPR, the European Convention on Human Rights, the American Convention on Human Rights, and the African Charter on Human and Peoples’ Rights. A year later, James Crawford argued that a “pro-democratic” shift was taking place in international law, in a much-cited article in the British Yearbook of International Law.  Susan Marks later developed the concept of an emerging international law norm of “democratic governance” in her landmark book The Riddle of All Constitutions:  International Law, Democracy, and the Critique of Ideology (OUP, 2003). Jean D’Aspremont’s 2011 EJIL Article observed that certain global events – such as the rise of non-democratic regimes – could be “cutting short the consolidation of the principle of democratic legitimacy under international law.”  But even among these scholars (and many others, see here, here, here, and here), there is no hard consensus on the elements of the “right to democratic governance”. After Stanford’s Larry Diamond originated the idea of the “global democratic recession” some years ago, the Economist’s Intelligence Unit (EIU) developed its “Democracy Index” which measures the state of democratic freedoms in countries around the world according to five categories: 1) electoral process and pluralism; 2) civil liberties; 3) the functioning of government; 4) political participation; and 5) political culture.  

The Philippines presents an interesting case study on today’s many scholarly contestations over the “right to democratic governance” under international law (see among others Susan Marks’ 2011 EJIL article here, Ignacio del Moral’s ESIL essay, Johannes Fahner’s 2017  positivist argument for the existence of the right to democracy here).  As of 2017, the Philippines is ranked 51st among the world’s democracies in the 2017 Democracy Index as a “flawed democracy”, expressly finding that “the indefinite declaration of martial law in the southern state of Mindanao in the Philippines, and the rule of country’s strongman leader, Rodrigo Duterte, adversely affected the quality of democracy in the Philippines.  Mr. Duterte has led the way among the many Asian countries that are infringing democratic values.” (2017 Democracy Index, at p. 28). While the Philippines ranks in the highest percentiles when it comes to the electoral process and pluralism category, it ranked very dismally in the categories of the functioning of government and political culture, and only in moderate percentiles in the categories of political participation and civil liberties.  It is a jurisdiction that is unique for having repeatedly and consistently transformed the UDHR into a legally binding and directly actionable set of rights under Philippine law (see landmark Philippine Supreme Court decisions here, here, here, here, here, among others), and yet it finds itself today seriously contesting visions of “democratic governance” between Mr. Duterte’s asserted “rule of law” and the myriad of civil and political liberties issues raised by local critics (see for example here, here, and here), as well as abroad (such as the 2018 US State Department Country Report on Human Rights in the Philippines, the 2017 Report of the Working Group on the Universal Periodic Review for the Philippines, the 2018 chapter on the Philippines in Human Rights Watch’s World Report, among others).  The irony is, both the Philippine government and its critics claim to act according to a “right to democratic governance”, even if both parties may have different visions of what democratic governance is.

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The ‘Open Arms’ case: Reconciling the notion of ‘place of safety’ with the human rights of migrants

Published on May 21, 2018        Author: 
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The work of the NGOs rescuing migrants in the Mediterranean Sea has been the subject of much controversy. One of the most recent cases regards the NGO Proactiva Open Arms: it has been accused of smuggling migrants during rescue operations at sea, and its rescue ship was impounded by the Italian authorities. This post examines the decision issued on 16 April 2018 by the pre-trial judge of Ragusa (Sicily) that ordered the release of the Open Arms vessel.

The relevance of this case is twofold. It obliquely tackles the legitimacy of the ‘pull-back’ agreement between Italy and Libya, as part of which the two states agree to collaborate with the aim of returning migrants to Libya, and which was recently challenged before the European Court of Human Rights (see this previous EJIL:Talk! post). Secondly, the decision, despite being just a pre-trial order, offers interesting insights into a contested area of international law which is gaining increase salience, i.e. the intersection between the Law of the Sea and the human rights of migrants.

This post argues that the order issued on 16 April is an important step forward in the definition of the notion of ‘place of safety’. International law merely states that people rescued at sea shall be delivered to a ‘place of safety’, but provides no definition of it (3.1.9. of the International Convention on Maritime Search and Rescue 1979, “SAR Convention”). The decision by the judge in Ragusa interprets ‘place of safety’ in accordance with the human rights of migrants, and rightly overcomes inappropriate distinctions based on migrants’ statuses. Read the rest of this entry…

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Prolonged Occupation or Illegal Occupant?  

Published on May 16, 2018        Author: 
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An unresolved question in international humanitarian law is whether an occupying power – whose authority as occupant may have initially been lawful – can cross a bright red line into illegality because it is acting contrary to the fundamental tenets of international law dealing with the laws of occupation.  This question has become especially relevant in light of several prolonged occupations in the modern world, including the 50-year-old Israeli occupation of the Palestinian territory.

The principal instruments of international humanitarian law, including the 1907 Hague Regulations, the 1949 Fourth Geneva Convention and the 1977 Additional Protocol to the Geneva Conventions, are silent on this question. However, a purposive reading of these instruments, together with the foundational tenets of international humanitarian and human rights law, leads to the conclusion that an occupying power whose intent is to turn occupation into annexation and conquest becomes an illegal occupant.

In my October 2017 report to the United Nations General Assembly as Special Rapporteur on the situation of human rights in the Palestinian territory occupied since 1967, I argue that a four-part test can be derived from general principles of international law, including the laws of occupation, to determine whether the status of an occupying power has become illegal. Violating any one of these four parts of the test could establish the occupying power as an illegal occupant. Read the rest of this entry…

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High Risk, High Reward: Taking the Question of Italy’s Involvement in Libyan ‘Pullback’ Policies to the European Court of Human Rights

Published on May 14, 2018        Author: 
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The mere filing of a case is rarely a reason for legal commentary but in this particular case, it may well be. A few days ago, a broad-based coalition consisting of NGOs and scholars, led by the Global Legal Action Network (GLAN) filed an application against Italy before the ECtHR with potentially far-reaching implications for European migration policy and especially maritime border control. The issues at hand are so-called ‘pullback’ practices in which the Libyan coastguard – funded, trained, and equipped by the Italian authorities under an agreement signed in February 2017 – prevents migrant boats from heading to Europe’s safe shores.

The application concerns events that unfolded the morning of 6 November 2017. A migrant dinghy in distress before the Libyan coast was simultaneously intercepted by the Libyan coastguard and a rescue ship of the German NGO ‘Seawatch’. A messy and partly confrontational rescue process ensued. Of the (approx.) 120 migrants onboard the dinghy, more than 20 persons drowned before and during the operation. 47 others were ‘pulled back’ by the Libyan coastguard, allegedly experiencing human rights violations including torture and inhumane and degrading treatment upon their return in Libya. 59, more lucky individuals, were rescued by the Seawatch and brought to Italy. By merely looking at the facts, the advantages of having a broad-based coalition become clear. University of London Goldsmiths’ Forensic Architecture agency made available an impressive digital reconstruction of the events that unfolded that morning. These details could be a crucial ingredient for a successful case.

Still, the present case comes at a difficult time for migrant rights advocates in Europe. Read the rest of this entry…

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The Missing Link in Migration Governance: An Advisory Opinion by the International Court of Justice

Published on May 11, 2018        Author: 
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Even though the International Court of Justice (ICJ) has jurisdiction to resolve disputes on the interpretation and application of the 1951 Refugee Convention (Art. 38) and the 1967 Protocol (Art. IV), it has so far not adopted any relevant judgment or advisory opinion. States have not shown interest in activating the Court’s jurisdiction with regard to the Refugee Convention, but they have done so in a variety of disputes broadly linked to transboundary movement of persons or to international protection: Latin American diplomatic asylum (Asylum and Haya de la Torre cases), consular assistance (LaGrand  and Avena cases), and extradition, arrest  or surrender of persons suspected of war crimes and crimes against humanity (Arrest Warrant and Habré cases), and terrorism (Lockerbie case).

As the world currently faces the worst migration crisis since WW II in terms of destabilization potential, due to the combined effects of the wars in Libya and Syria, and poverty in the Sahel, it is time to consider the challenges and benefits of the potential involvement of the ICJ in the global efforts of migration management and international protection. There are three questions to discuss, (a) necessity, (b) feasibility and (c) contribution of a potential ICJ ruling.

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European Court of Justice Bans Homosexuality Tests for Asylum Seekers

Published on May 1, 2018        Author: 
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Asylum seekers in European Union countries will no longer be subject to psychological tests to prove their homosexuality, according to a decision by the European Court of Justice (ECJ) on 25 January 2018. In F v. Bevándorlási és Állampolgársági Hivatal, the ECJ declared the illegality of the use of psychological reports based on projective personality tests in determining sexual orientation of asylum seekers.

The asylum applicant, a Nigerian man identified as F, sought asylum in Hungary, arguing that he has a well-founded fear of persecution because of his homosexuality. The Bevándorlási és Állampolgársági Hivatal (Office for Immigration and Citizenship of Hungary, hereinafter “Immigration Office”) rejected his asylum application. While the Immigration Office concluded that F’s application was not “fundamentally contradictory,” the Immigration Office found that F’s statement about his homosexuality “lacked credibility” based on one psychologist’s report (para. 22). F appealed this decision to a Hungarian court, and the case was eventually referred to the ECJ.

The “expert report” at issue in the case was produced by a psychologist after an investigative examination, which involved several basic projective personality tests, including the “Draw-A-Person-In-The-Rain” test and the Rorschach and Szondi tests. Upon completing the tests, the psychologist concluded that F’s homosexuality could not be confirmed.

The ECJ ruled that EU law does not prohibit authorities or courts from ordering the production of an expert report to help assess the facts and circumstances relative to an asylum seeker’s claim, but only if the production of the report is consistent with human rights law and the report is not relied upon solely or conclusively. The Court further held that EU law precludes the preparation and use of a psychological expert’s report based on projective personality tests to determine an individual’s sexual orientation when assessing an asylum claim sought by the individual on the ground of sexual orientation. Read the rest of this entry…

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