Human Rights Research Series – serie

The UN Commission on Human Rights began establishing the Special Procedures in the late 1960s. Since then, the UN mechanisms have developed and become veritable tools of human rights protection and monitoring.This book endeavours to capture the evolution of the human rights activity carried out by the Special Procedures and evaluate their importance and impact. It provides a thorough and up-to-date insight of the institutional history of the Special Procedures, analyzes their legal dimension, puts forward a conceptual definition of them, elucidates their evolution and assesses their effectiveness.This book makes an important and unique contribution to the study of UN human rights monitoring mechanisms by providing a systematic analysis and conceptualization of the Special Procedures. Also by singling out indicators to evaluate the impact of the Procedures' practice, this study brings innovative elements to the academic debate on the measurement of human rights bodies' activity.

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 fuelled 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; and the terrorist attack on French satirical magazine Charlie Hebdo in Paris.The overarching question triggered by these events concerns the relationship between freedom of expression and the regulation of 'hate speech'; which forms of hate speech should the state prohibit, on what grounds and 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 research constitutes the first international comparative study that provides a profound analysis of the law on hate speech in France and the Netherlands and under European and international law. It thoroughly examines the national legislation, its drafting history, policy and other legal documents and case law including famous legal cases against Dutch politician Geert Wilders, French politician Jean-Marie Le Pen and le Front National, French comedian Dieudonne and satirical magazine Charlie Hebdo. It also makes reference to the most recent international hate speech literature and discusses its key issues. This book can, thereby, form a source of inspiration for anyone interested or involved in the regulation of hate speech: academics; legislators; judges; prosecutors; politicians; interested citizens; and involved NGOs and can contribute to the 'faith in public debate', by elucidating its possible boundaries.

Disasters have a devastating effect on the lives of people. The occurrence of a disaster can kill thousands in an instance, injure many others, damage homes and destroy livelihoods. It is of essential importance that the response to a disaster is as effective and adequate as possible to limit and alleviate the suffering of disaster survivors. To this end, affected states can make use of offers of humanitarian assistance made by other states, international (humanitarian) organisations and NGOs. Such international assistance is vital for the effective response to a disaster when the affected state is unable (or unwilling) to respond adequately. When in such cases the affected state refuses to accept international humanitarian assistance, the disaster survivors suffer the consequences.Within public international law there are no legally binding instruments dealing explicitly with the obligations of states in the aftermath of disasters. Rather, a variety of sources can be used as pieces of a puzzle determining to what extent states have an obligation to accept international humanitarian assistance in disaster settings. In the first part of this book, these pieces of the puzzle are put together to create a legal framework explaining the steps an affected state must take in seeking and accepting humanitarian assistance. It becomes clear from the application of this framework that detail is lacking to make the framework of practical use. The needs which disaster survivors are usually deprived of (shelter, food, water and access to basic healthcare) are laid down as human rights in the International Covenant of Economic, Social and Cultural Rights. The second part of the book will use this human rights instrument to concretise the legal framework, as such setting standards determining when an affected state must accept international humanitarian assistance in the aftermath of a disaster.

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 European Union there is considerable diversity in morally sensitive issues like legal recognition of same-sex relationships or reproductive matters, such as abortion, assisted human reproduction (AHR) and surrogacy. States generally expressly claim recognition of such diversity and it is explicitly respected at 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. It implies that States are increasingly confronted by (the consequences of) one another's regimes. For example, same-sex couples residing in one EU Member State claim recognition of their marriage concluded in another Member State, or women from Member States with restrictive abortion regimes resort to States with more liberal regimes. This research explores this cross-border dimension, identifies a number of pressing questions and provides insight into the interests that are at stake in such situations.This volume firstly 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 ECHR) in respect of reproductive matters and legal recognition of same-sex relationships, and how this has developed over time. This analysis inter alia provides insight into what considerations and interests play or have played a role in legislative debates and case-law, in what respects the regimes studied differ, and how European law has influenced national standard-setting. It furthermore provides the necessary basis for the subsequent analysis of how the relevant jurisdictions respond to cross-border movement in these areas and how they interact. While, for example, States sometimes appear to ward off cross-border movement in these areas to protect their national moral standards, in other situations they choose to or are obliged under European law to accommodate such mobility in order to protect the interests of vulnerable parties involved. This research thereby observes and clarifies the dynamics in decision-making regarding these issues, analysing and explaining how various areas and levels of law interact.

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.

Acquiring competences for the creation of criminal offences begs the question of legitimacy. The European criminal justice system already has such competences and many instruments define criminal offences. The legality principle is a cornerstone doctrine for legitimising criminal norms in Western legal systems. Despite already being part of the European legal order, this principle lacks a coherent theoretical and normative blueprint that shows how it should be conceived in European criminal law.This book develops such a theory for the principle of legality in European criminal law. The focus is on the legitimising and normative functions of this principle. The reader shall find a proposal for a theoretical framework that legitimises European criminal law and the accompanying normative requirements of criminal liability. Questions such as the precision of European and national implementing norms, the position of case law as a source of law and the scope of interpretative powers of European and national courts are addressed. The book uses comparative research into national systems and modern theories of criminal law to build a framework for the principle of legality. This is then instilled with special characteristics of the European legal order, such as the multi-level system of authorities and sources, pluralism and freedom of movement.

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.

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.

The prohibition of abuse of rights in Article 17 of the European Convention on Human Rights (ECHR or Convention) embodies one of the Convention's main principles: its commitment to democracy and democratic values. The provision aims to prevent groups and individuals from successfully invoking fundamental rights and freedoms to justify anti-democratic activities. At the same time it is also one of the Convention's most controversial provisions. 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--vis state authorities, the abuse clause primarily aims to protect the democratic organisation 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 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. In addition, the case law covers different methods of application of the abuse clause that seem to be used rather arbitrarily. 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. Next, it analyses 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. Subsequently, it addresses the concepts of 'abuse of rights' and 'militant democracy' and examines the extent to which they offer a framework for understanding the abuse clause. 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.

Globally, millions of people suffer health and socio-economic related problems due to the unavailability of controlled essential medicines such as morphine for pain treatment, which leaves them in disabling and sometimes degrading situations. Controlled essential medicines are medicines included in the World Health Organization's List of Essential Medicines, and whose active substance is listed under the international drug-control treaties. Their availability and accessibility therefore fall within the remit of both human rights and international drug-control law. Even though the unavailability of controlled essential medicines is generally caused by a multifaceted and complex interplay of factors, the current international drug-control framework paradoxically hinders rather than fosters the access to medicines.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. Its approach goes beyond the more conventional legal analysis and includes an ethical analysis as well as two case studies in Uganda and Latvia. It first aims to identify a human rights foundation of drug control by examining how human rights norms would balance the underlying tension: some controlled substances have a clear, evidence-based medical benefit, yet also have the potential to be misused, which may lead to dependency disorders. This makes it evident that States should regulate this delicate equilibrium, the challenge being how they can do so legitimately in light of human rights norms.Having explored this premise in the context of human rights law and theory, this book then applies these findings to Uganda and Latvia, two 'best practice' countries when it comes to improving the accessibility of morphine for pain treatment. Relying on qualitative research methods, the study explores whether the human rights basis of drug-control regulation may be adequately integrated into the structures of the present international drug-control system. It specifically deals with various technical, administrative and procedural obligations relating to the import/export and retail trade of controlled medicines. The book concludes with a proposal on how a human rights approach to drug-control may be advanced, specifically highlighting the importance of reconciling international obligations with the local reality in which these obligations come into play.

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. A rights-based approach generally grants subjective rights to individuals to protect their personal interests. However, large-scale data processing techniques often transcend the individual and their interests. Virtue ethics is used to reflect on this problem and open up new ways of thinking. A virtuous agent not only respects the rights and interests of others, but also has a broader duty to act in the most careful, just and temperate way. This applies to citizens, to companies such as Apple, Google and Facebook and to governmental organizations that are involved with large scale data processing alike. The author develops a three-layered model for privacy regulation in the Big Data era. The first layer consists of minimum obligations that are independent of individual interests and rights. Virtuous agents have to respect the procedural pre-conditions for the exercise of power. The second layer echoes the current paradigm, the respect for individual rights and interests.While the third layer is the obligation of aspiration: a virtuous agent designs the data process in such a way that human flourishing, equality and individual freedom are promoted.

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.

Health is indispensable for living a life of dignity. Currently, there is an almost universal commitment to the right to health (care). However, despite the growing legal recognition of this right, empirical evidence suggests that, as a whole, the implementation of the right to health (care) remains largely rhetorical at the domestic level. For example, although China ratified the International Covenant on Economic, Social and Cultural Rights in 2001, relatively little attention has been paid to the domestic implementation of the right to health (care). Violations of this right were also identified in reality. Given that China's health care reform is entering the so-called 'deep-water' zone, it is essential for the Chinese government to investigate how to guarantee everyone equal access to health care.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 China's unique political, legal and social background. In doing so, this book synthesises two different concepts: (1) the right to health; and (2) accountability, and integrates them into an analytical framework for 'right to health-based accountability'. It further provides a greater understanding of accountability and the various forms of accountability mechanisms that should be established by States. More specifically, it establishes a constructive accountability model that can be applied to specific health concerns in China, as well as in other countries, particularly those with non-electoral regimes.This book first systematically evaluates the status quo of the legislative and policy measures China has taken to give effect to the right to health care within its jurisdiction. It then identifies the shortcomings in Chinas domestic implementation of this right and seeks to address the remaining challenges through the lens of accountability. This book concludes with a set of recommendations for Chinese law- and policy-makers for implementing China's obligations under the right to health care through its draft Basic Health Law.

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.

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.