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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…

 

A New Extraterritorial Jurisdictional Link Recognised by the IACtHR

Published on March 28, 2018        Author: 
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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: 
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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…

 
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