7719 results in Intersentia
Human Rights and Unilateral Economic Sanctions: A New Perspective on a Twisted Relationship
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Central European University, Budapest, Manfred Nowak, Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- 30 November 2023, pp 171-204
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ABSTRACT
Literature and practice outlining the relationship between human rights and unilateral economic sanctions veer in two opposite directions. One strand of literature advocates for sanctions to redress grave human rights violations. This position has been epitomised in the legislation allowing the imposition of economic sanctions for human rights violations occurring abroad (Magnitskystyle sanctions ). The opposing voice criticises unilateral economic sanctions irrespective of their objectives and forms, mainly by emphasising their negative repercussions on the enjoyment of human rights. This position is officially adopted by the Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights, and is reflected in numerous reports on the matter, which are traditionally supported by the most-sanctioned countries.
Th is contribution aims to explore perplexing and multifaceted relations between human rights and unilateral economic sanctions, an issue that is politically tainted, and which has been insufficiently analysed from a legal standpoint. Retreating from the clashes between these prevailing old, unworkable dichotomies, this contribution argues for a more nuanced portrayal of the subject matter.
INTRODUCTION
The debate surrounding the legality of unilateral economic sanctions has intensified over the past few years, especially in recent months. This has been a recurring theme, carrying along strong political overtones. Against the background of these discussions, this contribution focuses on the twisted relationship between unilateral economic sanctions and human rights. It aims to explore perplexing and multifaceted relations between human rights and unilateral economic sanctions, an issue that is politically charged, and which has been insufficiently analysed from a legal standpoint.
The term ‘economic sanction’ can be used to denote any one of a broad range of diverse restrictions. These can be classified based on the actors that employ them (collective, regional, unilateral and private), depending on their scope (comprehensive and targeted), according to the reasons for their imposition (to counter terrorism, to oppose unconstitutional changes of government, to limit the proliferation of nuclear weapons, to remedy grave human rights violations, etc.).
Discussion of the economic sanctions’ legality is closely intertwined with the actors who impose these restrictions. Sanctions authorised by the United Nations Security Council (UNSC) according to Chapter VII of the Charter of the United Nations (UN Charter), i.e. collective economic sanctions, are presumed to be legal under international law.
The Commercial Attack on Universities: Academic Freedom—An Orphan under the European Human Rights Framework?
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Central European University, Budapest, Manfred Nowak, Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- 30 November 2023, pp 261-314
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ABSTRACT
The state of health of academic freedom in Europe is only deceptively good essentially because ‘the law and human rights’, and most ways of assessing compliance with academic freedom, do not properly cater for, or at any rate struggle to capture, ‘commercial infringements’ – what are termed, in this contribution, academic freedom violations of the ‘second generation’ (violations 2.0). This contribution seeks to explain how commercialisation affects academic freedom, and why academic freedom violations 2.0 have largely remained below the radar in Europe (and elsewhere) so far. Neither the European Convention on Human Rights (ECHR) nor the Revised European Social Charter (Revised ESC) expressly protects academic freedom. However, existing provisions in both instruments could be relied on to accord adequate protection to academic freedom. Nevertheless, as will be shown, there are also many obstacles to this endeavour. The best solution may, therefore, be for the Council of Europe (CoE) to adopt a specific European Convention on Academic Freedom. The contribution concludes with ten essential principles relating to the content of such an instrument.
EUROPE AND ACADEMIC FREEDOM VIOLATIONS 2.0
In 2022, Scholars at Risk reported that, in the preceding year, 391 attacks on academic freedom, arising from 318 incidents, in 65 countries and territories around the world, had been recorded. The attacks the network measures cover killings/violence/disappearances, wrongful imprisonment, wrongful prosecution, travel restrictions, loss of position, and ‘other incidents’ (such as closing of campuses, systematic threats against staffor students, systematic discrimination, and so on). Among the countries concerned only five were in Europe, namely Georgia, Greece, Poland, Türkiye, and the UK. Similarly, the recently launched Academic Freedom Index (AFI) reports, in its 2023 update, that, from among 179 countries monitored, only three European countries – Armenia, Hungary, and Türkiye – feature in the lower 50 per cent group of performers. Among the top fift h in the table, 21 out of 36 (almost 60 per cent) are European states. The Afimeasures freedom to research and teach, freedom of academic exchange and dissemination, institutional autonomy, campus integrity, and freedom of academic and cultural expression.
Strengthening Children’s Rights to Privacy and Data Protection in the Digital Environment: Walking the Tightrope in the EU
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Central European University, Budapest, Manfred Nowak, Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- 30 November 2023, pp 391-436
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In today's digital landscape, the widespread processing of children's personal data is prominent. Among the various contexts where this occurs (such as the home, school or in administrative environments), one notable feature is the ever-increasing interaction between children and artificial intelligence (AI) technologies. Considering recent technological and legal developments, this contribution focuses on the latest legislative and policy changes in the European Union (EU) which specifically address children's rights to privacy and data protection in the digital environment. In the past few years, EU Member States have implemented the EU General Data Protection Regulation (GDPR ) into their national legal frameworks, mostly updating their national data protection Acts. One of the novelties introduced by the GDPR relates to the requirement of specific protection of children's personal data and the concrete rules associated therewith. Recent developments in three countries, namely the UK, Ireland and the Netherlands, serve as clear examples of national authorities treating the crucial obligation of safeguarding children's personal data with greater seriousness. These states adopted what we will refer to as ‘Children's Codes’ , incorporating the GDPR and providing for more stringent and detailed requirements not only to implement children's rights to privacy and data protection, but also the United Nations Convention on the Rights of the Child (UNCRC) and its general principles (children's best interests, rights to non-discrimination and development, and the right to be heard ). In addition to the developments concerning the legislative and policy frameworks relevant for children's rights to privacy and data protection in the EU, this contribution outlines some of the tools and mechanisms provided by the three Children's Codes. This leads to recommendations for amendments and additional measures that could also be adopted by other European authorities, nationally or at EU level (such as by the European Data Protection Board). It focuses particularly on the importance of the specific protection of children's personal data, the principles of fairness and transparency, the ways to apply the best interests of the child in practice, and the potential of data protection impact assessments, as well as the precautionary principle, to constitute practical ways of strengthening the protection of children's privacy and data protection rights in the digital environment.
List of Abbreviations
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Central European University, Budapest, Manfred Nowak, Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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Index
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Central European University, Budapest, Manfred Nowak, Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- 30 November 2023, pp 697-698
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List of Contributors
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Central European University, Budapest, Manfred Nowak, Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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PART II - JURISPRUDENCE BY THE COURTS
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Central European University, Budapest, Manfred Nowak, Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- 30 November 2023, pp 589-590
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Bringing the European Human Rights System and International Environmental Law Together in Climate Change Cases
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- By Ebru Demir
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Central European University, Budapest, Manfred Nowak, Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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Th ere are currently very important and interesting developments at the European Court of Human Rights (ECtHR, or the Court) regarding the issue of climate change. There are several applications in relation to climate change pending before the ECtHR at the time of writing (for example, Duarte Agostinho and Others v. Portugal and 32 other States ; Verein KlimaSeniorinnen and Others v. Switzerland ; Greenpeace Nordic and Others v. Norway; Müllner v. Austria; Car e me v. France ). The ECtHR has not yet heard any cases regarding climate change on the merits. The Court's understanding of victimhood might seem to contrast with victimhood in climate change cases, since the ECtHR does not permit an actio popularis, and expects an applicant to be ‘directly affected’ by an act or omission. However, recent developments at the ECtHR show that the Court's approach to victimhood in cases regarding environment and climate change might shift soon. For instance, in Duarte Agostinho and Others v. Portugal and 32 other States, the Court accepted the applicants’ claim on the effects of climate change on them, and fast-tracked the application to examine whether 33 respondent states keep temperature rises to 1.5 degrees Celsius, as agreed under the Paris Agreement. This contribution argues that the Court has a significant role in protecting European values, and should contribute to environmental protection and hear cases on climate change through the principle of systemic integration. The principle of systemic integration allows the Court to integrate other relevant international instruments into its case law, and makes the European Convention on Human Rights (the Convention) ‘a living instrument’. By applying the principle of systemic integration to the pending cases on climate change, the Court should have a proactive stance on environment and climate change. The contribution argues for more engagement between the European human rights system and international environmental law. Under the principle of systemic integration, the ECtHR should engage with the international environmental law instruments and integrate them into its case law. Such an engagement would demonstrate more clearly the impacts of climate change and environmental degradation on individuals. This would transform the ECtHR's narrow understandings of ‘victimhood’ and ‘harm’.
Natalia Kobylarz and Evadne Grant (eds.): Human Rights and the Planet: The Future of Environmental Human Rights in the European Court of Human Rights
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Central European University, Budapest, Manfred Nowak, Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- 30 November 2023, pp 665-668
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‘Climate change is already having a major impact on a wide range of human rights and could have a cataclysmic impact in the future unless ambitious actions are undertaken immediately.’ – Christina Voigt
In light of an ever-growing awareness of the connection between climate change and its threat to human rights, this book on Human Rights and the Planet is very timely. When climate litigation cases are at an all-time high – the Portuguese Youth and Senior Women for Climate Protection cases are both discussed in the book – there is a pressing need for jurisprudence to understand the link between climate change and human rights. Moreover, with the recent recognition of the right to a healthy environment, in the UN General Assembly, and the General Assembly's later resolution to request the International Court of Justice to provide an advisory opinion on the legal obligations of states regarding climate change, it is high time that the European Court of Human Rights (ECtHR) analysed its own obligations in this field.
Th is Special Issue (SI) of the Journal of Human Rights and the Environment is based on the proceedings of the international conference ‘Human Rights for the Planet’, held in October 2020 at the ECtHR in Strasbourg. The conference aimed to address the challenges posed by climate change, loss of biodiversity, depletion of natural resources and pollution, by exploring the intersection of European human rights law and environmental protection. This SI highlights the key themes and arguments which emerged from the Strasbourg conference.
The SI begins with a conversation between Robert Spano, the President of the ECtHR, and Philippe Sands, a renowned lawyer in international and environmental law. Their discussion revolves around the harmonious interpretation of human rights and environmental law, the dynamic nature of the European Convention on Human Rights (ECHR), and the inherent anthropogenic nature of the ECtHR. The discussion also focuses on the challenges facing the European Court in light of climate change litigation and the need to address environmental degradation.
The subsequent two articles in the SI challenge the anthropocentric focus of the ECtHR's jurisprudence, and argue for a paradigm shift in order to address the current biodiversity and climate emergencies.
Kostas Chrysogonos and Anna Tsift soglou (eds.): Democracy aft er Covid: Challenges in Europe and Beyond
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Central European University, Budapest, Manfred Nowak, Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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‘Who asks about the law when death is at the doorstep?’ (p. 23). The outbreak of the COVID-19 pandemic has not only strained public health systems worldwide to their limits but has also had profound repercussions on the very foundations of constitutionalism, liberal values and modern democracy. In order to prevent and combat the spread of the infectious respiratory disease, national authorities imposed severe, unprecedented restrictions on fundamental rights of individuals, like the freedom of movement and assembly, or religious and economic liberty. The exceptional circumstances of their adoption, as well as the human rights-eroding content of these preventive measures, oft en (over) stretched the boundaries of institutional checks and balances between legal regulation, judicial oversight and executive decision-making. In light of these challenging developments, liberal democracies, in particular, have been depicted as facing ‘a big dilemma: protect public health or respect the rule of law’ (p. 181).
The highly topical compendium Democracy aft er Covid: Challenges in Europe and Beyond, edited by Kostas Chrysogonos and Anna Tsift soglou, comprehensively examines these implications of the COVID-19 pandemic on the rule of law in (Western) liberal democracies across Europe, as well as in the United States. Published in mid-October 2022, by Springer Nature Switzerland AG, it represents the first study of COVID-19-associated democratic backsliding through the lens of comparative constitutional law and policy. Throughout the analysis, the contributing authors refer to concrete legislative, executive and judicial developments in the countries of interest, and critically assess their ramifications on the countries’ respective states of democracy. The main premise of the book is that liberal democracies must learn to adapt to large-scale emergencies, and to efficiently deal with them through flexible regulatory means within the scope of the rule of law, accompanied by an active judicial branch.
The collection at hand comprises 181 pages, and consists of 11 individual contributions by various renowned scholars from different regional and disciplinary backgrounds. It is worth noting that the volume partly originates from a panel discussion with the same title, which was held within the framework of the Annual Conference of the International Society of Public Law, on the overarching theme ‘The Future of Public Law’.
The Positive Obligations of States to Protect the Climate or the Environment as Part of the Protection of Human Life and Health under the European Convention on Human Rights
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- By Tomasz Sroka
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Central European University, Budapest, Manfred Nowak, Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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ABSTRACT
The purpose of this contribution is to analyse whether and how the protection of a clean environment or the climate can be realised through the positive obligations of states to protect human life and health that can be derived from Articles 2 and 8 of the European Convention on Human Rights (ECHR). The contribution includes an attempt to reconstruct the rights to respect, protect and fulfil human rights in environmental matters, as well as the scope of states’ obligations in the field of adaptation and mitigation of climate and environmental risks, as a precondition for the adequate and sufficient protection of human life and health. The thesis of the contribution is that the concretisation of states’ positive obligations within the above scope requires taking into account both the general principles of interpreting obligations to protect human life and health in the context of environmental hazards, and the specific criteria for determining what specific actions, in specific factual circumstances, the state is obliged to take in order to fulfil its obligations under Articles 2 and 8 ECHR. The contribution also presents a catalogue of the most important interpretation principles and specific criteria of the concretisation of states’ positive obligations.
INTRODUCTION
The protection of the environment, both from pollution or degradation, and from climate change, is becoming one of the most important challenges of our time, the implementation of which requires specific action on the part of both states and individuals themselves. The system of human rights protection, including the provisions of the European Convention on Human Rights (ECHR), is increasingly being used to define the obligations of public authorities in this regard. The ECtHR itself stresses that environmental pollution and its protection have become a subject of important and growing public interest for states and societies.
Th ere is no doubt that the ECHR does not explicitly recognise a human right to a healthy environment, and does not guarantee the general protection of the environment as such, although such a right is sometimes recognised in other instruments of international law, such as the European Social Charter (ESC).
Access to Abortion under the European Convention of Human Rights: Overcoming the Boundaries of Treaty Interpretation
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Central European University, Budapest, Manfred Nowak, Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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Th is contribution highlights that, in its relevant jurisprudence, the European Court of Human Rights (‘ECtHR’, ‘the Court’) has interpreted abortion-related provisions of the European Convention on Human Rights (ECHR) in a manner that deviates from the customary rules on treaty interpretation, to avoid engaging in a lege artis assessment of morally or politically sensitive abortion laws. Precisely, following an overview of the Court's abortion-related jurisprudence, the contribution compares the interpretative conclusions reached by the Court in this jurisprudence with the interpretative outcomes to which the customary rules of interpretation lead. Through this analysis, the contribution evinces that, to reach its restrictive interpretations, the Court has employed an interpretative technique whereby more interpretative value is afforded to the interpretative tools that enable a restrictive interpretation than to other interpretative tools. Subsequently, the contribution highlights that even the broader interpretation of the ECHR's abortion-related provisions, in line with the customary interpretative rules, does not tackle the points of criticism that have been raised by feminist legal scholars. In doing so, the analysis indicates the boundaries of positivist treaty interpretation when it comes to reaching a feminism-informed interpretation of the ECHR, i.e. an interpretation that is closer to, or meets the standards of, feminist legal scholars. Ultimately, the analysis suggests that the Court could adopt such a feminism-informed interpretation in its jurisprudence on abortion. To do so, it would not have to deviate from the customary rules on treaty interpretation more than it already has, but simply to employ its hierarchical interpretative technique to a feminist end, i.e. to afford more interpretative value to those customary interpretative tools that enable the ECHR's feminist interpretation.
INTRODUCTION
Discussions on access to abortion and the restrictions imposed thereon are in vogue – literally. The recent strict abortion policies and restrictive jurisprudential interpretations of provisions which were previously seen as sources of a right to access abortion have had a major impact on human rights debates in various circles. As expected, abortion, and particularly the question of whether the grounds for lawful access to abortion should be left entirely to the states’ discretion, have made their way to the forefront of academic debates.
A European Perspective on Safeguarding the Diversity of Cultural Expressions and Artistic Freedom in the Digital Environment
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Central European University, Budapest, Manfred Nowak, Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- 30 November 2023, pp 205-228
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Artistic freedom and the diversity of cultural expressions are protected by human rights instruments, as well as international cultural law based on United Nations Educational, Scientific and Cultural Organization (UNESCO) conventions, in particular the 2005 Convention on the Diversity of Cultural Expressions . This Convention, to which both the European Union (EU) and its Member States are Parties, specifies that the achievement of its objectives requires respect for human rights and fundamental freedoms. The monitoring framework of the 2005 Convention further contributes to the development of a human rights-based approach to the protection and promotion of the diversity of cultural expressions. This approach must also be reflected in the implementation of the 2005 Convention in the digital environment. As discussions on a European status of the artist and the discoverability of European content – both connected to artistic freedom and the diversity of cultural expressions online – are currently being held, this article examines states’ obligations from a human rights perspective. It refers to the work of United Nations (UN) human rights protection mechanisms, in particular the mandate of the Special Rapporteur in the field of cultural rights, which have specified states obligations’ to respect, protect and fulfil artistic freedom as a means to contribute to a diversity of expressions and vibrant societies. It also presents EU initiatives to regulate online activities and practices, which establish the respect of human rights as a fundamental principle. Ensuring respect for artistic freedom online is, indeed, an essential condition for access to a diversity of cultural expressions in the digital environment. The contribution concludes with a reminder of states’ obligations to make use of all existing fora to promote the protection of the diversity of cultural expressions and artistic freedom in the digital environment , and highlights the essential role of partnering with civil society to achieve this objective.
INTRODUCTION
Issues related to the protection of artistic freedom and the diversity of cultural expressions, including a European status of the artist, and measures to increase the discoverability of European content, are currently under discussion at European level. These are new developments.
Exclusion of Migrants from Political Rights: Legitimate Choice or Unjustifiable Discrimination?
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Central European University, Budapest, Manfred Nowak, Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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ABSTRACT
While most human rights are considered ‘everyone’s rights’, political rights function somewhat differently, as they are typically reserved to the nationals of a given state. This begs the question whether the permanent exclusion of noncitizen migrants from political rights is, from a de lege lata perspective, subject to limitations from international (human rights) law. In addition, one may ask whether, from a de lege ferenda perspective, the dichotomic differentiation regarding the personal scope of political rights should be reconsidered. The contribution concludes that international human rights law, as it currently stands, does not, apart from in exceptional constellations, require States to enfranchise non-citizens, even in the case of long-term resident migrants. Nonetheless, the increasing importance of migration movements, and the growing share of long-term resident non-citizens, in many countries, creates tensions with respect to the fundamental democratic principle that governments should derive their powers from the consent of the governed. This calls for an intensified debate on whether the existing human rights law framework should extend political rights to (at least long-term resident) non-citizens. This question must be seen in its interdependence with applicable naturalisation policies and practices. Also the situation in the countries of origin, in terms of non-resident citizen voting rights, should not be ignored.
INTRODUCTION
While most human rights are considered ‘everyone's rights’ (‘no one shall be …’, ‘everyone has …’), it has generally been taken for granted that political rights function somewhat differently. In particular, it is oft en deemed self-evident that such rights are not bestowed on every person, but reserved to the members of the body politic, i.e. the nationals of a given state.
Against this background, the preferred means for migrants to exercise of political rights has been through naturalisation (or, in case of jus soli regimes of nationality, to wait for the next generation to acquire citizen status). In contrast, there are also those who challenge the predominant narrative that it is a legitimate choice for political rights to work completely differently from the bulk of human rights, and that it is, therefore, ‘by design’ that political rights have a different scope ratione personae than civil rights or, for that matter, economic and social rights.
PART III - BOOK REVIEWS
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Central European University, Budapest, Manfred Nowak, Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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Strengthening Human Rights at the Local Level in Georgia: A Case Study Based on the European Charter of Local Self-Government
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Central European University, Budapest, Manfred Nowak, Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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ABSTRACT
Th is contribution reflects the observations of two human rights consultants on a striking process of introducing human rights at the local level, within the framework of a multilevel governance effort initiated by the Council of Europe's Congress of Local and Regional Authorities (the Congress). The authors aim at highlighting four core aspects of this process that are relevant on a global scale. First, the country in which this process took place, Georgia, is not known as a human rights champion. However, it clearly demonstrates a good practice example which others can learn significantly from. Second, it is a remarkable and quite unique occurrence for thirteen local authorities of a country to commit themselves to apply a human rights-based approach to local policy-making. Third, the nature of the approach applied in this process was very innovative. An international norm of the Congress was used to implement decentralisation in the form of a hub for human rights at the local authority level. Fourth, capacity-building for the on-site implementation introduced a concept developed by the UN Office of the High Commissioner for Human Rights as a form of practical guidance. The authors’ observations target readers working in international organisations as initiators or implementors of decentralisation and human rights efforts, and representatives of national authorities who are planning such efforts; consultants, academics, and civil society actors, as facilitators of such processes; and local authorities. The authors provide their feedback on the achievements and remaining obstacles in this particular process of developing human rights guarantees, by local authorities in Georgia.
INTRODUCTION
Th is article is a case study on the project ‘ Strengthening participatory democracy and human rights at the local level in Georgia’, which establishes an innovative process for advocating and improving human rights protection at the local level. The project is jointly implemented by the Directorate General of Democracy's Division of Elections and Participatory Democracy, and the Congress of Local and Regional Authorities (the Congress), within the framework of the Council of Europe Action Plan for Georgia 2020 – 2023, as well as with financial support provided by the Austrian Development Cooperation.
Asgeir Falch-Eriksen and Karmen Toros (eds.): Professional Practice in Child Protection and the Child’s Right to Participate
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Central European University, Budapest, Manfred Nowak, Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- 30 November 2023, pp 669-672
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Summary
In recent years, there has been a growing global significance attributed to the participation of children in political and practical matters. In accordance with Article 12 of the United Nations Convention on the Rights of the Child (CRC), it is recognised that every child possesses the fundamental right to be adequately involved in all administrative procedures concerning them. However, upon closer examination of the prevailing reality, it becomes evident that the practical implementation of this provision suffers from various shortcomings. Addressing these specific deficiencies in the professional practice of child protection services (CPS), the editors Asgeir Falch-Eriksen and Karmen Toros present their work aimed at rectifying these issues.
The book, a collaborative effort involving six esteemed experts in the field, is based on Article 12.2 of the CRC, which enshrines the right to expression. Throughout its eight chapters, the book offers insights into the ideal structure and operation of child protection services, aiming to uphold and safeguard children's rights by ensuring their active participation in all administrative processes. Through extensive research conducted across various countries, it becomes evident that the voice of the child is oft en neglected or overshadowed by a formalistic or paternalistic approach within CPS.
Following the introduction in the first chapter, the book explores the challenges surrounding Article 12 of the CRC in CPS practices. The literature review reveals a lack of children's participation and visibility in CPS decisionmaking processes worldwide, despite the focus on improving their lives. This highlights a significant gap between professional practice and the rights outlined in Article 12 CRC.
Chapter 3 delves into the application of a human rights standard in decisionmaking within professional practice, specifically focusing on upholding the rights of the child. It is argued that Article 12 should be seen as a mechanism that empowers the child to contribute to and influence decisions that affect them, aligning with the primary consideration of the child 's best interests, as stated in Article 3.1 of the CRC.
The focus of the fourth chapter lies on CPS assessments and their correlation with children's rights. Karmen Toros and Rafaela Eugenie Simonee Lehtme utilise empirical data from children registered in the CPS system in Estonia to examine child protection assessments.
On Second (and Third) Thoughts: Raising, Revising and Reviving the Concept of Progressive Realisation Over Time
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Central European University, Budapest, Manfred Nowak, Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- Book:
- European Yearbook on Human Rights 2023
- Published by:
- Intersentia
- Published online:
- 04 April 2024
- Print publication:
- 30 November 2023, pp 535-568
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Summary
ABSTRACT
Rights are not fixed entities – their goals, constituencies, rules and understanding shift over time. Few human rights principles evince this reality better than ‘progressive realisation’, an implicit theory of change contained in Article 2(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR). This contribution demonstrates that this theory of change has been formulated and rethought, and must be rethought again, as different understandings of development and the state condition which aspects of Article 2(1) have been emphasised across three distinct phases over the last 70 years. The first phase, ‘raising’, runs from the draft ing and adaptation of the ICESCR in the 1950s and 1960s, through entry into force in 1976. It was here that progressive realisation was elaborated as a general concept. In this period, progressive realisation was a concession to the practical difficulties underdeveloped states would face in giving effect to the Covenant. However, to a significantly underappreciated extent, it also reflected a teleological statism, in which development and state functionality appeared as goals towards which all countries would inevitably move. Rapid development was the demand and expectation of postcolonial societies, underpinning the dominant view of progressive realisation. In the late 1970s and 1980s this technicist optimism that a state's modernisation could be predicted and shaped was eroded. This led to a second phase, ‘revising’, which emerged from a generalised disillusionment with developing world states’ commitment or ability to realise economic, social and cultural rights (ESCR). It coincided with the doctrinal evolution of socio-economic rights, at a time when neo-liberal theories of development were predominant, and when debates on socio-economic rights were consumed by a battle over their status: the immediately realisable (and hence justiciable) nature of civil and political rights were contrasted with the ‘deferred’ (and supposedly more vague and less justiciable) nature of socio-economic rights. Progressive realisation was disparaged and marginalised as a potential ‘escape hatch’ for recalcitrant states, which needed to be shut as tightly as possible. A third phase, ‘reviving’, requires us today to revisit the concept of progressive realisation, to take account both of novel, post-Washington Consensus theories of inclusive development, and the growing acceptance that the justiciability of rights has distinct practical limits.
Shouldering the Burden of Intergenerational Justice: Children and Youth Representing Future Generations in Climate Change Politics, Law and Litigation
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- By Kata Dozsa
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Central European University, Budapest, Manfred Nowak, Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- Book:
- European Yearbook on Human Rights 2023
- Published by:
- Intersentia
- Published online:
- 04 April 2024
- Print publication:
- 30 November 2023, pp 29-52
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Summary
ABSTRACT
Although, in the climate change context, the view that the interests and rights of children and future generations overlap, the two groups have distinct characteristics. Most importantly, the concept of future generations lacks a clear legal definition, as opposed to the position of children, whose rights are protected by human rights instruments. The future generations are ‘voiceless’, whereas children have a right to express views, and to participate in decisionmaking or judicial procedures – although this right is oft en limited. In addition, children and youth involved in climate activism are typically sensitive to social justice issues, and engage in advocacy for the rights of the ‘voiceless’ future generations. However, this is not necessarily a voluntary mission, as it is oft en strongly influenced by distributed external factors: the much emphasised (trans) generational proximity between children and those to be born (‘children's children’); political pressure and ignorance; or, as increasingly seen, a litigation strategy designed to argue on behalf of those most vulnerable to climate change.
Th is contribution fleshes out common and distinct features of future generations and children in the political discourse, in relevant international law, and in recent examples of climate change litigation. A critical approach serves to underline the mutual benefit of linking these groups by enhancing intergenerational justice and children's agency, while also pinpointing a number of risks and ethical concerns in relation to instrumentalising young people for the purpose of representing future generations. Foremost, linking children with future generations, even if just symbolically, holds the risk of shift ing the dutybearers’ responsibility for climate action, including protection of the rights of future generations, on to the presently living youngest ones – those with the least power to fulfil this role. Shouldering such a weight may not only motivate children to build resilience and agency, but could also overwhelm them with feelings of guilt, helplessness and anxiety. This contribution showcases both mistreatments of this imbalance, and solutions that law-makers, practitioners and courts could apply when considering human rights of children and future generations.
In all that we do, we inherently represent not only ourselves, but past and future generations.
Rough Around the Edges or a Fundamental Disconnect? (Re-)Examining the Theory and Utility of Human Rights through the Six Systemic Distortions Afforded by Artificial Intelligence Systems
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- By Sue Anne Teo
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Central European University, Budapest, Manfred Nowak, Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- Book:
- European Yearbook on Human Rights 2023
- Published by:
- Intersentia
- Published online:
- 04 April 2024
- Print publication:
- 30 November 2023, pp 437-474
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Summary
ABSTRACT
The ubiquitous deployment of artificial intelligence (AI) technologies affects an array of human rights, raising concerns around issues of discrimination, privacy, freedom of expression, information and data protection. However, just as regulators and policy-makers call for technological design to respect existing human rights, others debate whether human rights are robust enough to counter new challenges posed by AI. This contribution takes a legalphilosophical approach, engaging the intersections of human rights law and theory, philosophy of technology, and law and technology in order to examine whether the theory and practice of the human rights law framework can address the systemic distortions afforded by AI systems. It identifies six systemic distortions, namely intangibility, ephemerality, modulation, the comparison deficit, the utilitarian logic, and, finally, the objectification of dividualised identities. These map on to (and challenge), respectively, the implicit observability, categorical legal groups, control, causality and foreseeability, the deontological motivation of human rights law, and the subjective sociality of individuals. These systemic distortions pose both a procedural challenge for individuals seeking to mount human rights claims, and a normative challenge to the formative aims of human rights law.
The contribution finds that these challenges are non-trivial to the human rights law framework, impacting its practical sustainability and relevance in the age of AI. However, a silver lining can be found within the normative foundation of the human rights framework itself, through the reinterpretation of human dignity as human vulnerability.
INTRODUCTION
The ubiquitous deployment of artificial intelligence (AI) technologies affects an array of human rights, raising concerns around issues of discrimination, privacy, freedom of expression, information and data protection. On the other hand, issues of fairness, transparency and accountability have also been raised, encompassing wider ethical concerns in relation to the use of AI. On the one hand, the advent of technological innovations, including AI, have been credited with bringing immense progress to science, and revolutionising diverse fields, such as health care, transportation and education. AI is also increasingly being deployed within public administration, determining eligibility for social welfare, unemployment and health care benefits, and educational access. On the other hand, the deployment of AI has threatened the sufficiency of the traditional tools of accountability, including those of the law, and human rights law in particular.