Human Rights Research Series – serie

In the modern globalized world, so-called private military and security companies (PMSCs) are employed by a variety of actors in times of both war and peace. They are employed by, and perform a plethora of services for, not only international organizations, NGOs and multinationals, but also States. Given that there are still regulatory gaps in the national and international legal frameworks applicable to PMSCs and that the lines of responsibility often are unclear, State responsibility becomes an important instrument for attaining justice and ensuring respect for international law by private contractors.

Should a politician be free to fiercely attack the religion of a sector of the population? Should he be allowed to strongly reject the culture of a particular minority group? Should religious adherents be allowed to advocate the transition from a democratic to a theocratic state? Should a satirical magazine be free to mock religious figures and practices? These sort of questions concern 'the place of faith in public debate' and continue to dominate public discussion that has been fueled by a series of events, including: the terrorist attacks in New York, Madrid, and London * the assassination of Dutch film director Theo van Gogh * the affair of the Danish cartoons * the prosecution of Dutch politician Geert Wilders for his statements on Islam and Muslims * the terrorist attack on French satirical magazine Charlie Hebdo in Paris. The overarching questions triggered by these events concern the relationship between freedom of expression and the regulation of 'hate speech': Which forms of hate speech should the state prohibit? On what grounds? By which means? Notably, the restriction of hate speech uttered in the context of the public debate - about multiculturalism, immigration, integration and Islam, and of religious fundamentalism - has become a topic of lively discussion. This book constitutes the first international comparative study that provides a profound analysis of the law on hate speech in France and the Netherlands, as well as under European and international law. It thoroughly examines the national legislation, its drafting history, policy, and other legal documents and case law. (Series: School of Human Rights Research - Vol. 68) [Subject: International Law, European Law, Comparative Law, Human Rights Law, Religious Law, Politics]

Disasters have a devastating effect on the lives of people. It is of essential importance that the response to a disaster is as effective and adequate as possible to limit and alleviate suffering. To this end, affected states can make use of offers of humanitarian assistance made by other states, international (humanitarian) organisations and NGOs. When in such cases the affected state refuses to accept international humanitarian assistance, the disaster survivors suffer the consequences.

International law and state practice mirrors the recognition of children's particular need for protection during peacetime, but in situations in which international crimes are being committed the prosecution of international crimes committed against children before international courts and tribunals is also well embedded. While international prosecutions are thus in line with the overall development of protecting children from the consequences of armed conflict and large scale violence, the involvement of the child in international criminal proceedings also gives rise to new questions which relate to the procedural involvement of the child.As child participation in the proceedings before the International Criminal Court (ICC) constitutes a matter of fact, one may raise the question whether such participation is a welcome development. This study examines the procedural implications of child participation and thereby intends to contribute legal views and perspectives to the underlying debate on the adequacy of child participation in ICC proceedings. The study concludes with ten recommendations that underline the call.

Within the EU, there is considerable diversity on morally sensitive issues, such as the legal recognition of same-sex relationships or reproductive matters (abortion, assisted reproduction, surrogacy, etc.). States generally express recognition of such diversity and it is explicitly respected at the European level, even though the (implicit) influence of European law is increasingly visible in these areas. Cross-border movement within the EU adds a new dimension to this complex picture. Member States are increasingly confronted by one another's regimes. For example, same-sex couples who reside in one Member State claim the recognition of their marriage conducted in another State, or women from Member States with restrictive abortion regimes resort to States with more liberal regimes. This PhD thesis explores these cross-border dimensions by identifying a number of pressing questions and providing insight into the interests that are at stake in such situations. The book investigates what (if any) standard-setting is in place in three national jurisdictions (Ireland, Germany, and the Netherlands), as well as in the relevant European jurisdictions (EU law and the European Convention on Human Rights). The analysis provides insight into what considerations and interests have played a role in legislative debates and case law, in what respects the regimes differ, and how European law has influenced national standards. Additionally, the book looks at how the relevant jurisdictions respond to cross-border movement in these areas and how they interact. Thesis. (Series: School of Human Rights Research - Vol. 72) [Subject: EU Law, Human Rights Law, Comparative Law, Socio-Legal Studies]

This study deals with the phenomenon of genocide denialism, and in particular how it operates in the context of the genocide against the Tutsi. The term genocide denialism denotes that we are not dealing with a single act or type of (genocide) denial but with a more elaborate process of denial that involves a variety of denialist and denial-like acts that are part of the process of genocide. From this study it becomes clear that the process of genocide thrives on a more elaborate denial dynamic than recognized in expert literature until now. This study consists of three parts. The first theoretical part analyses what the elements of denial and genocide entail and how they are (inter)related. The exploration results in a typology of genocide denialism. This model clarifies the different functions denial performs throughout the process of genocide. It furthermore explains how actors engage in denial and on which rhetorical devices speech acts of denial rely. The second part of the study focuses on denial in practice and it analyses how denial operates in the particular case of the genocide against the Tutsi. The analysis reveals a complex denial dynamic: not only those who perpetrated the genocide are involved in its denial, but also certain Western scholars, journalists, lawyers, etc. The latter were originally not involved in the genocide but recycle (elements of) the denial discourse of the perpetrators. The study addresses the implications of such recycling and discusses whether these actors actually have become involved in the genocidal process. This sheds light on the complex relationship between genocide and denial. The insights gained throughout the first two parts of this study have significant implications for many other actors that through their actions engage with the flow of meaning concerning the specific events in Rwanda or genocide in general. The final part of this study critically reflects on the actions of a variety of actors and their significance in terms of genocide denialism. These actors include scholars from various fields, human rights organisations, the ICTR, and the government of Rwanda. On a more fundamental level this study critically highlights how the revisionist scientific climate, in which knowledge and truth claims are constantly questioned, is favourable to genocide denialism and how the post-modern turn in academia has exacerbated this climate. Ultimately, this study reveals that the phenomenon of genocide denial involves more than perpetrators denying their genocidal crimes and the scope of actors and actions relevant in terms of genocide denialism is much broader than generally assumed.

This book develops a theory for the principle of legality in European criminal law. Its focus is on the legitimising and normative functions of this principle.

This book examines several aspects of the equality and non-discrimination norms in the UN Convention on the Rights of Persons with Disabilities (CRPD). In the first instance, the book provides an interpretation and critical analysis of the legal meaning of the principles of equality and non-discrimination in the context of the CRPD. It analyses the extent to which the concepts of equality and non-discrimination contained in the Convention fit within the various theoretical models of disability and conceptions of equality that have been elaborated to date by scholars. It also compares the theoreotical framework of equality in the CRPD to that contained in other international human rights treaties which preceded the Convention. In addition, States' obligations under the Convention are teased out. A particular focus throughout this book is on the manner in which the equality and non-discrimination norms in the CRPD can increase participation and inclusion in society of persons with disabilities. This book also examines in detail an integral component of the equality norm, namely the duty to reasonably accommodate persons with disabilities and, in particular, its outer limits. In that regard, the book analyses whether the balancing and sharing of burdens inherent in the accommodation duty can teach us lessons about the overall balancing of burdens and interests implicit in many Convention rights subject to progressive realisation. Following on from that, this book devises a framework for review of measures adopted by States in the overall context of the progressive realisation of disability rights, with a particular emphasis on how the CRPD's equality norm might strengthen the realisation of socio-economic rights for disabled people. That framework of review criteria is then applied to the right to education and the accessibility obligation incumbent on States under the CRPD. Finally, this book investigates how the equality and non-discrimination norms in the Convention have already influenced, and can potentially influence, the crucial shape of disability equality case law and policy. In that connection, a case study is carried out on the Council of Europe mechanisms, in order to assess whether the CRPD is having an influence on disability law and policy at the regional level. This book demonstrates the fact that the CRPD holds enormous promise for the future application of the equality and non-discrimination norms in relation to the rights of persons with disabilities. Notwithstanding this, significant challenges lie ahead in the realisation of de facto equality for persons with disabilities. (Series: School of Human Rights Research, Volume 74) [Subject: Human Rights Law]

An earthquake. A conflict. A tsunami. A coup. Increasingly, non-international armed conflicts send thousands of civilians fleeing across borders to safety, whilst (natural) disasters hit areas of the world where resources to address the calamity are scarce. Coinciding emergencies or deliberate obstruction by authorities exacerbate the already dire situation. A humanitarian crisis often ensues. The result of these crises is an immediate and large-scale need for food, water, shelter and medicine: in other words, the provision of humanitarian assistance. Whereas the need for such assistance may be ascertainable, its provision is not without legal and political challenges, and deprivation of aid is unfortunately all too common. Looking at these challenges and circumstances, several issues can be discerned regarding the legal framework governing the provision of humanitarian assistance. These include the fragmentation or conflict of applicable norms, developments within the international legal realm regarding the role of the individual in the receipt of aid and in the responsibility for its provision, as well as the changing nature of conflicts in the world and actors partaking in these conflicts. State sovereignty must furthermore continuously be taken into consideration as part of this legal framework, from the viewpoint of the provision of assistance, its denial and enforcement. This book aims to systematically address these challenges, with an overarching approach to the provision of humanitarian assistance. Part I sets out the boundaries of the existing framework and addresses the relevant concepts pertaining to the delivery of emergency aid. Part II assesses the currently existing rights of the affected persons and duties of the affected state in the delivery of humanitarian assistance, whereas Part III addresses enforcement possibilities in the absence of (sufficient) provision by the affected state. Lastly, recommendations are provided to ensure the protection of those who need it most. (Series: School of Human Rights Research, Vol. 76) [Subject: Human Rights Law, International Law]

There exists a certain tension between human rights protection and the concept of abuse of rights. While human rights essentially aim to promote freedom by affirming the basic rights and freedoms citizens enjoy vis-a-vis state authorities, the abuse clause primarily aims to protect the democratic organization of the state against groups and individuals invoking these rights with the aim of undermining it. Furthermore, an analysis of the growing body of case law on this topic shows that the interpretation and application of Article 17 of the European Convention on Human Rights (ECHR) are far from unequivocal. While according to Article 17 ECHR anti-democratic activities may be excluded from the protection of the Convention, clear criteria for determining which activities fit this description are lacking. This has resulted in a rather obscure and inconsistent case-by-case approach. This study seeks to shed light on the prohibition of abuse of rights in Article 17 ECHR in order to contribute to a more coherent interpretation of this provision. To that aim it studies the abuse clause from different perspectives. First, it looks at the historical background of the provision to examine what motivated the drafters to include this prohibition. Then it moves on to the case law of the European Commission of Human Rights and the European Court of Human Rights and to legal doctrine, revealing the difficulties and inconsistencies in the current interpretation of the abuse clause. It also analyzes the interpretation of prohibitions of abuse in other human rights documents to see whether parallels can be drawn with the interpretation of Article 17 ECHR. Based on the insights obtained from these different perspectives, this study puts forward a proposal as to how Article 17 ECHR can best be applied in the future. (Series: School of Human Rights Research, Vol. 78) [Subject: Human Rights Law]

Human Rights and Drug Control analyses a human rights interpretation of the international drug-control framework with an emphasis on advancing the access to controlled essential medicines in resource-constrained countries.

The concept of positive obligations is familiar to various legal systems which seek to protect fundamental rights. This concept means that states are required to take active measures to protect fundamental rights, such as, for example, adopting a general legal framework to regulate same-sex relationships in order to ensure protection of the right to private life. In Europe, positive obligations have, in particular, been developed in the case-law of the European Court of Human Rights (ECtHR) from the 1970s onwards. The ECtHR has explained that positive obligations are necessary to ensure that fundamental rights are of practical value and effective for everyone.The ECtHR is not the only supranational court in Europe that protects fundamental rights. The Court of Justice of the European Union (ECJ) also protects fundamental rights within the scope of EU law. So far, no concept of positive obligations has been developed by this Court, and the question has been asked whether such a development can indeed occur under EU law. After all, the EU is a rather special international organisation which has specific, mainly economic, interests to protect. It is also unclear whether the EU has competence to undertake regulatory action to actively protect fundamental rights. Based on the insights obtained from the development of positive obligations by the ECtHR, this volume analyses whether and how positive obligations could be incorporated into EU law. The relevant provisions laid down in the EU Treaties and the EU Charter, the case-law of the ECJ and the specificities of the EU system are studied to find out where there is scope for recognition of the concept of positive obligations under EU law, and what limitations would apply to this.

Privacy as Virtue discusses whether a rights-based approach to privacy regulation still suffices to address the challenges triggered by new data processing techniques such as Big Data and mass surveillance.

Towards a Sustainable Human Right to Water is a timely examination of a critical and time-sensitive subject in the field of human rights law. Aside from being a basic necessity for human survival, the United Nations identifies water as being a keystone of sustainable development and at the very heart of healthy ecosystems and socio-economic development. Thus, the book poses the critical question how the concept of sustainable development can contribute to the sustainable realisation of the human right to water for vulnerable people. It takes a three step approach in providing an answer to this fundamental question of our time. Firstly, the case is made for a broadening of the scope of vulnerability to include environmental factors and it is argued that the notion of vulnerability, as it is currently understood within the human rights discourse, is too limited. It should not only be assessed by looking at the social and economic circumstances of people or at specific groups, but also by looking at the environment that one lives in. This is certainly important for the realisation of the human right to water, which impacts the unserved or underserved to greater effect as they are directly dependent on their environment. Widening the scope of vulnerability would allow for more specific targeted measures when environmental problems are considered in connection with social vulnerability.Secondly, principles of sustainable development can be used to shape and further develop the human right to water. This would allow for the right to be realised in a sustainable manner and states could comply with both international human rights legislation and international environmental legislation. While these two fields of law have developed separately, their perspectives can nevertheless be reconciled if their different interests are balanced.Finally, an assessment framework is developed to analyze how states can implement the human right to water in a sustainable way. Bringing together the different disciplines of law, economics and public administration, it provides for basic water system knowledge which is required for a comprehensive exploration of the main challenges, and for offering recommendations specific to a national or regional context. This framework has been applied to the situation in Suriname, demonstrating the need for multi-level interventions.

Advancing the Right to Health Care in China analyses the role of accountability, a Western concept that has recently been introduced to China, in advancing the right to health care in light of ChinaÆs unique political, legal and social background.

Although international human rights law establishes the individual right to receive reparations, collective reparations have been considered a common response from judicial and non-judicial bodies to reparations for victims of gross violations of human rights. As such, collective reparations have been awarded within the field of international human rights law, international criminal law and transitional justice. Yet the concept, content and scope of collective reparations are rather unspecified. To date, neither the judicial nor the non-judicial bodies that have granted this kind of reparations have ever defined them.This book presents the first study on collective reparations. It aims to shed light on the legal framework, content and scope of collective reparations, and to the relationship between collective reparations and the individual right to reparations. In order to do so, the book analyses specific case law from the Inter-American Court of Human Rights, the International Criminal Court and the Extraordinary Chambers in the Courts of Cambodia. Additionally, the practices of non-judicial mechanisms were examined, specifically those of the Peruvian and Moroccan Truth Commissions and of two mass claims compensation commissions (the United Nations Compensation Commission and the Eritrea-Ethiopia Claims Commission). Finally, it provides an overview of the challenges that collective reparations present to the fields of international human rights law and international criminal law, including in their implementation.

This book offers a human rights perspective of the phenomenon of marital captivity within Christian, Jewish, Hindu and Muslim communities in both secular and non-secular States. Marital captivity is a complex social phenomenon that, predominantly, affects women. It involves a situation wherein the dissolution of a religious and/or legal marriage is obscured for religious reasons, consequently forcing the spouse(s) to remain in the marriage against their will. It involves multiple stakeholders (i.e. the trapped spouse, the opposing or recalcitrant spouse, the religious communities and one or more States). Within situations of marital captivity, all involved stakeholders have rights and interests which are often in conflict with one another. Unfortunately, holistic and effective solutions to end existing situations of marital captivity and prevent new situations from arising have yet to be developed.The human rights discourse advanced in this book shows that a human rights centred approach is imperative for the process of finding effective solutions to end marital captivity. Applying the human rights legal framework enables to objectively consider, balance and resolve the conflicting rights and interests inherent within situations of marital captivity. It also reveals how a select number of human rights and principles are affected within situations of marital captivity and offers an overview of States' positive obligations to protect and ensure these rights. The implied human rights obligations are discussed within the context of marital captivity so as to identify and formulate specific States' obligations to address marital captivity. This enables the author to produce guidelines for legal and non-legal measures that States should consider adopting in their efforts to combat marital captivity and to comply with their human rights obligations.

The principal question investigated in this book is what normative justification can be provided for economic, social and cultural rights (ESC rights) guaranteed under international law and how this justification can or should impact the State obligations emerging from these rights. In particular, it seeks to answer whether and in what manner human dignity provides a viable normative justification for ESC rights guaranteed under international law, what kind of concrete legal obligations of the State party flow from these rights, and the way these obligations are reflected in the jurisprudence of international human rights monitoring bodies from across jurisdictions. It also examines the kind of legal obligations the State bears towards vulnerable persons within its jurisdiction. These are questions born out of the current limitations and lack of substantive progress in both the academic debate and practical enforcement of ESC rights.In order to give answers to these questions, this book has adopted two levels of inquiry. First, it discusses the theoretical problems affecting the effective realisation of ESC rights. Secondly, it takes an inductive approach in analysing ESC rights jurisprudence from African, Inter-American, European and UN human rights systems.Thus, having identified the critical limitations of traditional human rights theories, the book introduces the idea of the social conception of human rights, that is, human rights as being rooted in and essentially concerned with the practical and complex social relations and therewith the protection, preservation and promotion of the life and value of human beings. It is argued that human dignity constitutes an underlying moral principle behind the social relations and the normative justification of all human rights. As a normative principle, human dignity entails the State obligation to ensure an unconditional respect for the moral and biological being of humans. In the context of ESC rights, this obligation influences the State's obligation to respect and ensure essential procedural and substantive conditions required to live a dignified human life.The study therefore offers a fresh perspective on the way we should approach the justification, nature and legal implications of ESC rights both generally and in the specific context of vulnerable persons. It is hoped that beyond inspiring further academic discourse on ESC rights the book serves as a useful reference material for courts, human rights monitoring bodies, policy makers and civil societies concerned with the realisation of ESC rights both at the national and international level.

Armed groups have played a predominant role in the violations of international humanitarian law and international human rights law committed in conflict settings. The increase in the number of non-international armed conflicts during the past decades has emphasised the need to address the multiple legal challenges posed by the actions of armed groups. In particular, there is considerable uncertainty regarding the framework of responsibility for armed groups in international law. While much has been written regarding their international (primary) obligations, the possibility of developing a responsibility framework for armed groups under international law has been underexplored. Consequently, the aim of this book is to examine how the principles of international responsibility could be developed and adjusted to account for armed groups as collective entities.This general aim has been divided into three specific objectives. First, the book analyses the concept of responsibility in international law and assesses the legal and practical reasons in favour of developing such a regime for armed groups. Second, it examines the viability of establishing a responsibility regime for armed groups based on rules of attribution. Third, it explores the possible legal consequences of responsibility applicable to armed groups, with a particular focus on the obligation to provide reparations to victims. In doing so, this book will argue that certain non-traditional sources of international law could be used to interpret and adapt international law to the current conditions of contemporary armed conflict.

Statelessness remains an issue of concern in Europe. Stateless persons often experience problems with accessing basic rights, despite the proclamation of human rights and a right to a nationality for all. Various attempts have been made to address the issue of statelessness, for instance through the adoption of the United Nations Statelessness Conventions, but also by European regional cooperation mechanisms. This book analyses and places into context the legal approaches that states have taken together in the context of the Council of Europe and the European Union to prevent and solve...

Article 34 of the European Convention on Human Rights prescribes that individual applications must be directed against one of the Convention States. Consequently, private actors involved in proceedings against other private actors before domestic courts must complain about State (in)action in their application to the European Court of Human Rights. In other words, originally 'horizontal' conflicts must be 'verticalised' in order to be admissible. Although such verticalised cases make up a large portion of the Court's case law, the particular nature of these cases, as well as procedural...