Non-Binary gender identity is slowly growing in visibility across the globe. In at least seven Member States of the Council of Europe, some judicial, administrative or legislative bodies have... Show moreNon-Binary gender identity is slowly growing in visibility across the globe. In at least seven Member States of the Council of Europe, some judicial, administrative or legislative bodies have already started organising a form of legal recognition for gender identities outside of the binary through the creation of ”third” gender categories and “X” gender markers. This trend is growing fast and the European Court of Human Rights should pronounce itself soon on a potential positive obligation to organize such recognition in the case of Y v. France (pending). In this context, this research reflects on the foundations and flaws of the organisation of gender registration in the Council of Europe Member States. The main focus in this sense is put on the human rights law framework of the Council of Europe and specifically the right to respect for private life (Article 8 of the European Convention on Human Rights (E.C.H.R.)), the prohibition of inhuman and degrading treatment (Article 3 E.C.H.R.) and the freedom of expression (Article 10 E.C.H.R.) in light of the prohibition of discrimination (Article 14 E.C.H.R.). Furthermore, it reflects critically on the recent legal developments that led to the use of “X” gender markers to highlight their inadequacy. In doing so, it points towards the possible abolition of gender registration – or at the very least its suppression from identity documents. Show less
Those who believe – including those who believe divergently and those who disbelieve – can clash in daily life with others who believe or disbelieve differently. They can come into conflict with... Show moreThose who believe – including those who believe divergently and those who disbelieve – can clash in daily life with others who believe or disbelieve differently. They can come into conflict with laws and regulations or with state institutions that disturb, interfere with their lives based on those beliefs. When these conflicts reach the courts, they are adjudicated under the freedom of religion and belief. Sometimes, similar cases lead to different outcomes in different jurisdictions. The notion that judicial interpretation matters for human rights is almost uncontested. This study is interested in the standard interpretations of the freedom of religion and belief by the Supreme Court of Canada, the Constitutional Court of South Africa, and the European Court of Human Rights. From each of these Courts, 15 cases were selected and systematically analyzed to reconstruct the standard interpretations. They have been compared to find similarities and differences, in terms of optimal protection of believers. The study also analyses and compares the standard interpretations from the perspective of Cass Sunstein’s judicial minimalism. The ultimate goal is to find best practices for optimal protection of believers in the judicial interpretation of the freedom of religion and belief and to enable possible judicial borrowing. Show less
This chapter explores the lawful contours of a growing phenomenon – the administration of criminal justice by non-state armed groups in territories under their control. It highlights a steadily... Show moreThis chapter explores the lawful contours of a growing phenomenon – the administration of criminal justice by non-state armed groups in territories under their control. It highlights a steadily mounting body of international practice recognizing the lawfulness of the ‘de facto’ processes as dependent on how – rather than by whom – justice is administered and considers the conditions that international law places on such justice. These include the core standards of independence and impartiality, fair trial guarantees, respect for the principle of legality and the nature of the crimes, which pose myriad challenges in practice in the context of de facto justice. Among others, the chapter flags the particular implications of increased resort by non-state actors (like states) to broad terrorism-related crimes as a basis for prosecution. Finally, as meeting the standards required of de facto justice will generally depend on external support, the chapter questions whether under international law states can – or in certain circumstances should – cooperate with or recognize such processes consistently with international law. In an area of dynamic legal and practical development, the chapter reveals a landscape that is evolving to meet the realities of the changing nature of non-state actors’ exercise of power and control, but where tensions, uncertainties and paradoxes remain. Show less
The right to be protected against discrimination, which is enshrined in international and national human rights catalogues, pertains to us all as individuals. And this fits the ambition of the... Show moreThe right to be protected against discrimination, which is enshrined in international and national human rights catalogues, pertains to us all as individuals. And this fits the ambition of the modern human rights discourse to protect everyone against the power of public institutions as well as private persons and groups. But in many liberal democracies there are often only some groups protected against discrimination and merely in certain situations. This entails both legal-theoretical and practical dilemmas. In the first place because such provisions transgress the boundaries of legitimate state conduct as provided by our rights. But also because many people who need protection against discrimination will lack it. In addition, there is the risk that old stigmas are enforced or new one’s created. Moreover, such a course of action suggests a hierarchy of suffering wherein the suffering of some has priority over that of others. Last but not least, group-based protection against discrimination might engender a struggle within and between groups for the available assistance. On account of the foregoing, one may recommend that the Dutch hate speech ban, quota laws, and institutional opinions that speak out against discrimination – which are currently group-based – can benefit from a more general approach. Show less
Discrimination is still not sufficiently addressed within liberal democracies. Often only some groups are protected against discrimination and merely in certain situations. This leaves many who... Show moreDiscrimination is still not sufficiently addressed within liberal democracies. Often only some groups are protected against discrimination and merely in certain situations. This leaves many who suffer because of discrimination without recourse. And that is only one of the dilemmas with group-based approaches to the protection against discrimination. So why are these approaches so common? And can we find a viable alternative?In this new book, legal scholar Erwin Dijkstra answers these questions. His analysis is thorough, original, and thought-provoking. This makes Discrimination and the Foundation of Justice indispensable for anyone who seeks a better understanding of discrimination law, the relevant human rights context, and the debate on improving the protection against discrimination. That debate is brought to life through a thoughtful discussion of hotly debated topics like hate speech, affirmative action, and institutions that speak out against discrimination.As discrimination concerns us all, this book was written as a resource for all. It is meant to be read by those studying discrimination law professionally and the broader public alike. Show less
When nongovernmental organizations (NGOs) encounter state resistance to human rights accountability, how do NGOs use international courts for their human rights advocacy strategies? Considering the... Show moreWhen nongovernmental organizations (NGOs) encounter state resistance to human rights accountability, how do NGOs use international courts for their human rights advocacy strategies? Considering the overlapping phenomena of shrinking civic space within authoritarian, hybrid, and democratically backsliding regimes, and state backlash against international courts, NGOs navigate two potential levels of state backlash against human rights accountability. Building on the interdisciplinary scholarship on legal mobilization, we develop an integrated framework for explaining how states' two-level (domestic and international) backlash tactics can both promote and deter NGOs' strategic litigation at international human rights courts (IHRCs). States' backlash tactics can influence NGOs' opportunities, capacities, and goals for their human rights advocacy, and thus affect whether and how they pursue strategic litigation at IHRCs. We elucidate the value of this framework through case studies of NGOs' litigation against Tanzania at the African Court on Human and Peoples' Rights, an understudied IHRC. Drawing on an original data set, interviews, and documentation, we process-trace how Tanzania's various backlash tactics influenced whether and how NGOs litigated at the Court. Our framework and analysis show how state backlash against human rights accountability affects NGOs' mobilization at IHRCs and, relatedly, IHRCs' opportunities for influence. Show less
Any analysis of histories and cultures of remembrance, bears testimony to the witnessing of humans who have either lived through the experiences as insiders or who have not lived through the... Show moreAny analysis of histories and cultures of remembrance, bears testimony to the witnessing of humans who have either lived through the experiences as insiders or who have not lived through the experiences of the past as outsiders. The possibility of bearing witness to (remember) the horrors, trauma, and destitution of the human condition and to consider its implications for human rights education is what this anthology of essays is about. The editors, Anne Becker, Ina Ter Avest and Cornelia Roux, portrayed as insiders, cogently accentuate how human rights violations in South Africa and the Netherlands ought to be expiated through teaching and learning to justify and preserve dignity, self-respect, and freedom towards the advancement of affective life and humanity. Hopefully, through education, it is averred that degradation, inhumanity, and irresponsibility will be undermined and eradicated. The possibility that dignity and decency will remain in place and that it ought to be preserved at all costs even beyond the imagination, and rightfully so, seems to be at the centre of the editors’ concern for the cultivation of human rights education. In this way, apartheid, colonialism and other pervasive torments of human and non-human life should be distanced from genuine educational encounters. Show less
The thesis concerns a theoretical and doctrinal study of the justification of extraterritorial human rights obligations of states. It uses the search and rescue of migrants at sea as a case study... Show moreThe thesis concerns a theoretical and doctrinal study of the justification of extraterritorial human rights obligations of states. It uses the search and rescue of migrants at sea as a case study to explore how power and causal relations inform the justification of relations of duty under human rights law compared to and in light of obligations arising under the international law of the sea. Show less
The concept ‘voluntary return’ is a crucial but often poorly understood part of the procedure for the return of irregularly staying third-country nationals from EU member states, as set out in... Show moreThe concept ‘voluntary return’ is a crucial but often poorly understood part of the procedure for the return of irregularly staying third-country nationals from EU member states, as set out in Directive 2008/115 (the Returns Directive). Through this concept, member states allocate primary responsibility for the return process to individuals. This individual responsibility, however, is only vaguely defined in the Directive, creating the risk that it is used by member states in an almost entirely open-ended and limitless manner, with potentially far-reaching consequences for third-country nationals, including their fundamental rights. This dissertation seeks to clarify the limits of this individual responsibility arising out of the concept of voluntary return in the Directive. It does soby unpacking the two component parts of voluntary return: the obligation to return and the voluntary departure period. This analysis draws on a triangle model that brings into focus the three legal relationships thattogether determine the framework for voluntary return: the individual and the EU member state, the individual and the country of return, and the country of return and the EU member state. The analysis results in the identification of 25 guidelines setting out concrete limits on individual responsibility for voluntary return. Show less
After years of violating the basic principles of human rights in the name of counterterrorism, Western democracies have begun to implement extraterritorial safeguards that extend protections under... Show moreAfter years of violating the basic principles of human rights in the name of counterterrorism, Western democracies have begun to implement extraterritorial safeguards that extend protections under the Convention against Torture to foreigners abroad. The case of the UK and the development of the “Principles” in 2019, however, presents a particular puzzle to policy-making research, as it challenges traditional hypotheses regarding the opening of problem windows within the Multiple Streams Framework. Accordingly, the UK presents an interesting case in which a powerful state willingly engaged in self-restraint, despite little electoral pressure to do so and a persistently high terrorist threat. Drawing on theory-building process tracing, this paper addresses this gap using data from semi-structured interviews with British policy experts to present a refined hypothesis, which can also be applied to policy fields of little public interest and processes of foreign policy-making. Show less
There has never been a more pertinent time to discuss the accountability and the legal responsibility of Frontex, the European Border and Coast Guard Agency, for fundamental rights violations. In a... Show moreThere has never been a more pertinent time to discuss the accountability and the legal responsibility of Frontex, the European Border and Coast Guard Agency, for fundamental rights violations. In a period that hosts the first legal actions vis-à-vis the agency and a series of relevant non-judicial investigations, including by the European Parliament, this dissertation aims to address the main problem underlying these accountability efforts, namely the ‘problem of many hands’. As conceptualised by Dennis Thompson, this problem is where the multiplicity of the actors involved obscures the various responsibilities and creates gaps in accountability.To address it, this work contests the dominant ways of looking at the concepts of responsibility and accountability, and reimagines them for their optimal function.It adopts a holistic approach, taking into account not only judicial, but also other forms of accountability, studying not only EU liability law, but also other legal remedies before the CJEU, the ECtHR, and domestic courts, building bridges between international and EU law, and traveling from the empirical to the conceptual, to the normative, and from there to the applied.It creates the foundations for the accountability of the agency inside and outside courts, within the EU borders and beyond. Show less
Energy is central to both the 2030 Agenda for Sustainable Development and the ParisAgreement and a prerequisite to the realization of human rights for billions of people.Yet the nexus between human... Show moreEnergy is central to both the 2030 Agenda for Sustainable Development and the ParisAgreement and a prerequisite to the realization of human rights for billions of people.Yet the nexus between human rights, climate change and energy remains underdevelopedin international law and practice. This article considers the potential and limitationsof a ‘human rights approach’ to energy to accelerate progress towards universalaccess to modern energy services while addressing climate change and inequalities. Itconsiders three distinct elements of a human rights approach to energy: a discursiveelement; a mainstreaming element; and a litigation element. In exploring the potentialcontributions of each of these elements to a just energy transition, it demonstrateshow a human rights approach to energy can help to address some of the shortcomingsof the Sustainable Development Goals related to energy and climate. Show less
There are very few states in the world, if any, that are in full compliance with human rights norms. Instead, states tend to comply with some articles of a human rights treaty extensively, only up... Show moreThere are very few states in the world, if any, that are in full compliance with human rights norms. Instead, states tend to comply with some articles of a human rights treaty extensively, only up to certain extent with some, and openly violate others. Up to now, we have not been able to unravel these patchworks of compliance. This study presents a political dialogue model to start this process of unraveling. It shows how political decision-makers create patchworks of compliance, as they need to mediate between the mismatching norms of different national and international communities. When successful, such dialogues allow decision-makers to make small improvements in human rights compliance. However, when communities are not sufficiently represented in the dialogue or their norms are being violated, harmful backlash effects against human rights can develop. This study has a mixed-methods approach. It analyzes the implementation of the Convention on the Elimination of all forms of Discrimination Against Women and the International Covenant on Civil and Political Rights in a global quantitative study and two in-depth case studies of Jordan. Show less
Collective identity can be altered by attacking culture’s tangible components (a temple) which are often a manifestation of or a support to their intangible (spiritual practice). That... Show moreCollective identity can be altered by attacking culture’s tangible components (a temple) which are often a manifestation of or a support to their intangible (spiritual practice). That identity can also be altered by attacking culture’s intangible in isolation (prohibition of spiritual practice). The research determines the extent to which international adjudicatory mechanisms have considered the causes, means and consequences of intentionally attacking culture’s tangible and intangible components. The research then brings their separate practice together. Based on treaty law, culture will be placed in a legal mould. Culture can be anthropical or natural, movable or immovable, secular or religious, tangible or intangible, regardless of terminology (cultural property, cultural heritage, intangible or tangible cultural heritage). Culture will then be placed in a judicial mould, in order to consider how natural and legal persons can invoke cultural damage in judicial proceedings. Culture is a legacy-oriented triptych made of local, national and international panels. While each panel makes sense in isolation, they are best understood when viewed together. State responsibility and individual criminal responsibility-based jurisdictions have accepted that attacking culture may be both tangible-centred and heritage-centred in terms of typology of damage. They have further recognised that the victims of such attacks can be natural persons as members of the collective or the collective as the sum of natural persons. But the victims can also be legal persons which may participate in judicial proceedings and seek reparations for harm sustained as a result of damage inflicted to their property (a museum’s building as well as its artefacts). Show less
