magnify
Home Posts tagged "Human Rights"

The European Court of Human Rights and Workplace Surveillance: Where is Article 31(3)(c) VCLT?

Published on November 14, 2019        Author: 

 

Although one may be familiar with criticisms of the EU’s self-contained approach to its own legal system, this case of fragmentation is not limited to the EU alone. In fact, in one of the more recent cases on the docket of the European Court of Human Right (ECtHR), it was the Court’s Grand Chamber that adopted a self-contained attitude towards the interpretation of the European Convention on Human Rights (ECHR). It did so by failing to account for EU rules concerning workplace surveillance which were relevant for the interpretation of the ECHR.

In López Ribalda and Others v. Spain (Applications nos. 1874/13 and 8567/13) (the Decision), a Spanish employer installed hidden CCTV cameras as part of an investigation into ‘inconsistencies between the stock level and the sales figures’ (§12 of the Decision). The employees were not informed about the existence of such cameras (§13 of the Decision). Subsequently, some of them were filmed while stealing (or while they were aiding other people who were stealing goods from the supermarket) and were dismissed (§§14-16 of the Decision). The dismissals were challenged in the Spanish courts as the evidence used for this was obtained through an act (covert video surveillance) which (allegedly) breached the applicants’ right to protection of privacy. However the Spanish courts rejected these claims. It was considered that the employer acted in a proportionate manner, as the measures were necessary, were limited in time and were focused on the supermarket’s checkout counters (§§19-39 of the Decision). Read the rest of this entry…

 

Social Justice Quests in the Process of Development-induced Displacement

Published on November 12, 2019        Author: 

 

“For millions of people around the world—development has cost them their homes, their livelihoods, their health, and even their very lives.”

                             – W. Courtland Robinson

Introduction

The term development-induced displacement (DID) by itself mirrors two contradictory notions, which rightly represent the dilemma associated with this form of involuntary displacement. On the one hand, “development” has a positive connotation, as it represents the social and economic advancement of a given society, and on the other hand, displacement entails the involuntary removal of people from their homes or residences, which comes with various socio-economic risks. DID, whether or not it is followed by planned resettlement, refers to the involuntary displacement of persons from their homes or habitual residence in order to make a room for development projects. With the proliferation of large scale development projects, particularly in developing and highly populated countries, DID has emerged as one of the prominent causes of internal displacement affecting an estimated number of 15 million people every year (see Heather Randell, 2017).

DID has various risks and impacts, which extends from inherent socio-economic problems to grave human rights violations, on displaced persons. This is especially true when the resettlement programs fail short of equitable standards and adequate procedural guarantees are not accorded. The acquisition of land and eviction that DID entails subject those affected to homelessness, landlessness, loss or decrease of income, and social disintegration, among others. These further create unfavourable living conditions, food insecurity, and increase morbidity and mortality rates. These consequences of DID often extend to a long period resulting in chronic impoverishment of those affected. Overall, as Michael Cernea puts it, “being forcibly ousted from one’s land and habitat by a dam, reservoir or highway is not only immediately disruptive and painful, it is also fraught with serious long term risks of becoming poorer than before displacement, more vulnerable economically, and disintegrated socially” (see Michael Cernea, in Tim Allen (ed), 1996). Having this background in mind, this article seeks to elucidate the social justice concerns DID gives rise to. Read the rest of this entry…

Filed under: Human Rights
 

An Arusha-based World Court on Human Rights for African States?

Published on November 7, 2019        Author: 

 

The Arusha-based African Court on Human and Peoples’ Rights (ACtHPR) enjoys a distinctively broad contentious jurisdiction extending to ‘all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and any other relevant Human Rights instrument ratified by the States concerned’ (Article 3(1) of the Protocol to the African Charter on Human and Peoples’ Rights (ACHPR)). The ACtHPR’s striking feature sets it apart also from most international courts. One may even argue that, as far as African States are concerned, the ACtHPR functions as a world court on human rights by consolidating human rights obligations of State parties under the auspices of a single judicial body on a regional level. In this post I will offer a few, brief thoughts on some of the legal issues pertaining to the material jurisdiction of the ACtHPR. For a detailed analysis of these matters see my recent article in the Human Rights Law Review.

The ACtHPR’s approach

The ACtHPR has proved itself willing to exercise its material jurisdiction to the fullest possible extent. It systematically applies, and finds violations of, other human rights treaties, including regional, sub-regional and UN treaties, and it orders the respondent States to comply with their respective obligations. Some scenarios on how applicants submit complaints are:

  1. bringing a case claiming a violation of a right which is not protected under the ACHPR but is protected by another treaty ratified by the State concerned;
  2. alleging a breach of a right which, although included in the ACHPR, is formulated in another treaty in a manner that ensures a higher level of protection (see, Lohé Issa Konaté);
  3. claiming a violation of a human right which is protected in the same way under both the ACHPR and another treaty, but no mechanism is envisaged or is available to the applicant under that other treaty to bring an individual complaint (see Tanganyika Law Society);
  4. choosing to bring a complaint before the ACtHPR (instead of, or in addition to, another international body) as a litigation strategy (e.g., physical proximity to a forum, litigation costs, avoidance of stricter admissibility criteria before UN human rights bodies).

New designs and old anxieties Read the rest of this entry…

 

Human Rights and the Environment: The UN Human Rights Committee Affirms the Duty to Protect

Published on September 9, 2019        Author: 

Recently, the Human Rights Committee published its views in the case Portillo Cáceres v. Paraguay (currently available only in Spanish). In this landmark decision, the Committee dealt, for the first time, with the question of the States’ duty to protect individuals from environmental degradation under articles 6 (right to life) and 17 (protection of the family) of the International Covenant on Civil and Political Rights (ICCPR). In doing so, the Committee followed the lead of several regional human rights institutions. The decision might help in strengthening the recognition of environmental protection as an element of human rights protection.

A brief summary of the case: The Communication was brought to the Committee against Paraguay by two peasant families who had been poisoned by high amounts of pesticide and insecticides used by neighbouring industrial farms. Whereas legal regulations existed that prohibited this conduct, no significant steps had been taken by the State to enforce the existing laws. As a result of the poisoning, one family member died, the others were hospitalized. Furthermore, the families suffered a loss of fruit trees, the death of various farm animals and severe crop damage. The families claimed that the State had failed in its duty to provide protection inasmuch as it has not exercised due diligence.

Protection of the Environment as a Human Right

Questions regarding the role of environmental protection in the context of human rights protection have recently been brought before several human rights mechanisms. Recently, the Inter-American Court of Human Rights (IACHR) has had the chance to define the role of environmental protection in its system (see this advisory opinion). It has not only found that there is an autonomous right to a healthy environment, but also stated that any right can be affected by environmental harm (paras. 63, 64). Read the rest of this entry…

 

An Unforeseen Pandora’s Box? Absolute Non-Refoulement Obligations under Article 5 of the ILC Draft Articles on Crimes Against Humanity

Published on May 20, 2019        Author: 

Introduction

In 2013, the International Law Commission (ILC) added to its long-term work programme the topic of a convention on the prevention and punishment of crimes against humanity. This proposed convention is meant to join sibling conventions addressing genocide and war crimes and would stand in the tradition of other conventions addressing serious crimes, such as torture and enforced disappearance. So far, the ILC has adopted 15 Draft Articles which include a wide range of obligations for future State parties regarding the prevention of crimes against humanity, as well as on measures relating to domestic criminalization, mutual legal assistance and extradition. This blog post, however, focusses on Draft Article 5, which includes an absolute non-refoulement obligation with regard to crimes against humanity:

Article 5 Non-refoulement 

  1. No State shall expel, return (refouler), surrender or extradite a person to territory under the jurisdiction of another State where there are substantial grounds for believing that he or she would be in danger of being subjected to a crime against humanity.
  2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations, including, where applicable, the existence in the territory under the jurisdiction of the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights or of serious violations of international humanitarian law.

While the commentary on the Draft Articles argues that most States consider Article 5 to be a mere codification exercise and consistent with existing obligations under international human rights law (IHRL), some states such as the USA, UK and Jordan have expressed their concern that Draft Article 5 constitutes a progressive development of the law and introduces new, mandatory standards of non-refoulement protection. This post makes three main claims. First, that Draft Article 5 does indeed constitute a progressive development of the law and would supersede the current non-refoulement regime under both refugee and human rights law. Second, that although the proposed new regime would increase the protection of individuals from refoulement, it does so in a rather arbitrary fashion. Lastly, that this new regime will further restrict the ability of states to expel or return unwanted individuals who have committed serious crimes or constitute a danger to their community and could therefore trigger a significant political backlash once the Draft Articles reach the level of political decision makers in the future member states of the Convention. Read the rest of this entry…

 

WTO Dispute on the US Human Rights Sanctions is Looming on the Horizon

Published on January 31, 2019        Author: 

At the turn of the year, Venezuela initiated a WTO dispute with the United States. In a nutshell, Venezuela questions WTO-consistency of a number of coercive trade-restrictive measures (economic sanctions) imposed by the United States. Some of those restrictions were allegedly imposed on the human rights grounds.

US sanctions against Venezuela

The United States has been consistently imposing trade-restrictive measures against Venezuela, yet none of them has ever been challenged at the WTO. Most likely, the last wave of such restrictions is a spark that lit the fuse. In recent years, the Trump Administration introduced additional restrictions on Venezuela’s financial sector, leaving the country’s finances in shambles, as well as sanctions directed against the country’s gold sector. According to the media reports published in January 2019, the United States considers even tougher sanctions, particularly the ones that can impede Venezuela’s oil industry.

Human rights sanctions against Venezuela

The United States is notorious for its practice of economic coercion, which has been debated at length within the international community. Economic measures imposed to promote human rights entered the US foreign policy agenda under President Carter. In the following decades, the US has made ample use of them. 

In December 2014, the US Congress enacted the Venezuela Defense of Human Rights and Civil Society Act of 2014. The enactment of the act was triggered by a number of events, particularly by the deteriorated living standards and the violent crackdown on the anti-government protesters. The act authorizes the President to impose various targeted sanctions, – sanctions against current or former government officials responsible for acts of violence or serious human rights abuses against protesters. The ambit of such sanctions includes blocking of assets of the designated individuals as well as travel restrictions. In pursuit of its authority, President Obama declared the national emergency in respect of the situation in Venezuela and issued an Executive Order 13692 of March 8, 2015, which implements the aforesaid human rights sanctions.

Read the rest of this entry…

 
Comments Off on WTO Dispute on the US Human Rights Sanctions is Looming on the Horizon

Parliaments as Human Rights Actors – Proposed Standards from the UN

Published on June 21, 2018        Author:  and

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…

 
Comments Off on Parliaments as Human Rights Actors – Proposed Standards from the UN

A New Extraterritorial Jurisdictional Link Recognised by the IACtHR

Published on March 28, 2018        Author: 

In its recently published Advisory Opinion on “The Environment and Human Rights of 15 November 2017 (in EJIL: Talk! summarized here; on its potential diagonal effect see here), the Inter-American Court is the first human rights court to recognise a new extraterritorial jurisdictional link based on control over domestic activities with extraterritorial effect. This post explains how the conclusions of the Advisory Opinion specifically on the first question recognise a new extraterritorial jurisdictional nexus (1) and argues that despite certain welcome developments (2), the Inter-American Court failed to give a comprehensive guideline as to the limits of the jurisdictional link (3).

1.    Summary of the new jurisdictional test

In its advisory opinion, the Inter-American Court had to answer the question whether a State Party has jurisdiction under Article 1(1) of the Pact of San José over a person situated outside the territory of that State Party if his or her human rights have been violated as a result of damage to the environment or of the risk of environmental damage that can be attributed to that State party.

This is the first occasion the Inter-American Court faces the question of the extraterritorial applicability of the American Convention on Human Rights. Therefore, the Court examined the case law of the Inter-American Commission on Human Rights, the European Court of Human Rights and other treaty regimes and confirmed the Convention’s extraterritorial applicability, recognising two alternative bases of extraterritorial jurisdiction: effective control over territory or persons. However, the Inter-American Court did not stop here and accepted a third jurisdictional link “when the State of origin exercises effective control over the activities carried out that caused the harm and consequent violation of human rights” (para. 104(h)). The Inter-American Court widens extraterritoriality by establishing a new jurisdictional link that departs from the criteria for extraterritorial jurisdiction of effective control over territory/persons: it is based on the factual – or, as the Court formulates, “causal” – nexus between conducts performed in the territory of the State and a human rights violation occurring abroad (paras. 95, 101-102). While the European Court of Human Rights (ECtHR) vaguely recognised that “acts of the Contracting States […] producing effects […] outside their territories can constitute an exercise of jurisdiction within the meaning of Article 1” (e.g. Al-Skeini), it has never applied it as a standalone basis to establish the State’s extraterritorial jurisdiction. Read the rest of this entry…

 

International Migration: Shared Commitment to Children’s Rights and Protection

Published on January 10, 2018        Author: 

On 17 November 2017, the Committee on the Rights of Child (CRC Committee) together with the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW Committee) published not one but two joint General Comments (JGCs) on the human rights of children in the context of international migration. This was a significant event because two treaty monitoring bodies have worked together on a topic of global importance and this was the first time both Committees adopted two General Comments on the same issue. The first JGC covers General Principles (General Comment No 3 CMW and General Comment No 22 CRC) [JGC-GP] and the second deals with States’ human rights obligations in countries of origin, transit, destination and return (General Comment No 4 CMW and General Comment No 23 CRC) [JGC-SO]. The JGCs reiterate the central tenet of children’s rights that children are rights holders and first and foremost children, regardless of their or their parents’ nationality or migration status. Although the JGCs do not focus on one type of migration, it is acknowledged that children in unsafe or irregular migration are more likely to suffer rights’ violations than children in voluntary migration situations (JGC-GP, para 8).

Background

The two Committees were compelled to draft the JGCs by the continuing phenomenon of children caught up in international migration and the extent and diversity of human rights violations they experience on their journeys. The publication of the JGCs followed months of consultation and discussion engaging experts, NGOs and stakeholders (including child rights and migration organizations). The JGCs are an important contribution to the dialogue on international migration, especially in light of the New York Declaration on Refugees and Migrants adopted by the UN’s General Assembly on 19th September 2016 and the ongoing negotiations on the Global Compact on Refugees, led by UNHCR and the Global Compact on Safe, Orderly and Regular Migration, led by the IOM. International migration, according to the Committees, places children in a situation of ‘double vulnerability’, as children and as children affected by migration (in whatever form that takes). Consequently, both Committees are committed to strengthening the protection of all children in the context of international migration (JGC-GP, para 4). Read the rest of this entry…

 
Comments Off on International Migration: Shared Commitment to Children’s Rights and Protection