Showing papers on "International human rights law published in 2021"

Human rights dimensions of COVID-19 responses in Bangladesh: challenges and recommendations

Abstract: Purpose: The purpose of this paper is to scrutinize the human rights dimensions of COVID-19 responses in Bangladesh through a viewpoint methodology in four critical areas: freedom of opinion and expression;access to information;protection of health-care workers;and marginalized populations’ access to health care. However, these responses remain non-aligned with the international human rights law obligations of Bangladesh, which undermines the human rights and dignity of its population. Based on the responses shaping and aggravating the situation, this paper concludes with some recommendations, which can be helpful for Bangladesh for better human rights responses in these areas, should a parallel situation emerge in the future. Design/methodology/approach: This paper scrutinizes the human rights dimensions of COVID-19 responses in Bangladesh through a viewpoint methodology. Findings: The responses of Bangladesh remain non-aligned with international human rights law obligations of Bangladesh, which undermines the human rights and dignity of its population. Originality/value: This paper concludes with some recommendations, which can be helpful for Bangladesh for better human rights responses in these areas, should a parallel situation emerge in the future. © 2021, Emerald Publishing Limited.

United Nations endorsement and support for human rights: An experiment on women’s rights in Pakistan:

Abstract: The United Nations is one of the organizations charged with developing and promoting international human rights law. One of the primary ways that the United Nations tries to do that is by regularly...

From human resources to human rights: Impact assessments for hiring algorithms

Abstract: Over the years, companies have adopted hiring algorithms because they promise wider job candidate pools, lower recruitment costs and less human bias. Despite these promises, they also bring perils. Using them can inflict unintentional harms on individual human rights. These include the five human rights to work, equality and nondiscrimination, privacy, free expression and free association. Despite the human rights harms of hiring algorithms, the AI ethics literature has predominantly focused on abstract ethical principles. This is problematic for two reasons. First, AI principles have been criticized for being vague and not actionable. Second, the use of vague ethical principles to discuss algorithmic risks does not provide any accountability. This lack of accountability creates an algorithmic accountability gap. Closing this gap is crucial because, without accountability, the use of hiring algorithms can lead to discrimination and unequal access to employment opportunities. This paper makes two contributions to the AI ethics literature. First, it frames the ethical risks of hiring algorithms using international human rights law as a universal standard for determining algorithmic accountability. Second, it evaluates four types of algorithmic impact assessments in terms of how effectively they address the five human rights of job applicants implicated in hiring algorithms. It determines which of the assessments can help companies audit their hiring algorithms and close the algorithmic accountability gap.

An intersectional human rights approach to prioritising access to COVID-19 vaccines.

Abstract: We finally have a vaccine for the COVID-19 crisis. However, due to the limited numbers of the vaccine, states will have to consider how to prioritise groups who receive the vaccine. In this paper, we argue that the practical implementation of human rights law requires broader consideration of intersectional needs in society and the disproportionate impact that COVID-19 is having on population groups with pre-existing social and medical vulnerabilities. The existing frameworks/mechanisms and proposals for COVID-19 vaccine allocation have shortcomings from a human rights perspective that could be remedied by adopting an intersectional allocative approach. This necessitates that states allocate the first COVID-19 vaccines according to (1) infection risk and severity of pre-existing diseases; (2) social vulnerabilities; and (3) potential financial and social effects of ill health. In line with WHO's guidelines on universal health coverage, a COVID-19 vaccine allocation strategy that it is more consistent with international human rights law should ensure that vaccines are free at the point of service, give priority to the worst off and be allocated in a transparent, participatory and accountable prioritisation process.

Artificial intelligence, human rights, democracy, and the rule of law: a primer

Abstract: In September 2019, the Council of Europe's Committee of Ministers adopted the terms of reference for the Ad Hoc Committee on Artificial Intelligence (CAHAI). The CAHAI is charged with examining the feasibility and potential elements of a legal framework for the design, development, and deployment of AI systems that accord with Council of Europe standards across the interrelated areas of human rights, democracy, and the rule of law. As a first and necessary step in carrying out this responsibility, the CAHAI's Feasibility Study, adopted by its plenary in December 2020, has explored options for an international legal response that fills existing gaps in legislation and tailors the use of binding and non-binding legal instruments to the specific risks and opportunities presented by AI systems. The Study examines how the fundamental rights and freedoms that are already codified in international human rights law can be used as the basis for such a legal framework. It proposes nine principles and priorities that are fitted to the novel challenges posed by the design, development, and deployment of AI systems. When codified into law, these principles and priorities create a set of interlocking rights and obligations that will work towards ensuring that the design and use of AI technologies conform to the values of human rights, democracy, and the rule of law. The purpose of this primer, co-produced by The Alan Turing Institute and the Council of Europe, is to introduce the main concepts and principles presented in the CAHAI's Feasibility Study for a general, non-technical audience. It also aims to provide some background information on the areas of AI innovation, human rights law, technology policy, and compliance mechanisms covered therein. In keeping with the Council of Europe's commitment to broad multi-stakeholder consultations, outreach, and engagement, this primer has been designed to help facilitate the meaningful and informed participation of an inclusive group of stakeholders as the CAHAI seeks feedback and guidance regarding the essential issues raised by the Feasibility Study.

Emerging Consensus on ‘Ethical AI’: Human Rights Critique of Stakeholder Guidelines

Abstract: Voluntary guidelines on ‘ethical practices’ have been the response by stakeholders to address the growing concern over harmful social consequences of artificial intelligence and digital technologies. Issued by dozens of actors from industry, government and professional associations, the guidelines are creating a consensus on core standards and principles for ethical design, development and deployment of artificial intelligence (AI). Using human rights principles (equality, participation and accountability) and attention to the right to privacy, this paper reviews 15 guidelines preselected to be strongest on human rights, and on global health. We find about half of these ground their guidelines in international human rights law and incorporate the key principles; even these could go further, especially in suggesting ways to operationalize them. Those that adopt the ethics framework are particularly weak in laying out standards for accountability, often focusing on ‘transparency’, and remaining silent on enforceability and participation which would effectively protect the social good. These guidelines mention human rights as a rhetorical device to obscure the absence of enforceable standards and accountability measures, and give their attention to the single right to privacy. These ‘ethics’ guidelines, disproportionately from corporations and other interest groups, are also weak on addressing inequalities and discrimination. We argue that voluntary guidelines are creating a set of de facto norms and re‐interpretation of the term ‘human rights’ for what would be considered ‘ethical’ practice in the field. This exposes an urgent need for action by governments and civil society to develop more rigorous standards and regulatory measures, grounded in international human rights frameworks, capable of holding Big Tech and other powerful actors to account.

The Principle of Proportionality in Modern Ius Gentium

Abstract: The principle of proportionality refers to the criteria for fair and optimal balancing of interests. It is widely applied to international disputes and has gained institutional and scholarly acceptance in the field of international law. This paper aims to explore the longue duree of the principle, drawing on an interdisciplinary perspective on international law. It affirms the traditional role of proportionality in international legal sphere and values its familiar role in introducing flexibility in law, remaining close to its conventional interpretation. However, the paper also questions its contemporary ethos, as it is based historically on its relation to equity. To this end, it examines the historical roots of the principle as part of the early modern law of nations, as well as how such a general principle should be seen as applicable to private relationships. The aim is therefore to re-think the principle of proportionality in modern ius gentium as based on how public and private law principles need to be interpreted relative to each other and continue to be shaped continuously as an extension of their shared history. It is in this sense that we can examine the need for equity in the international sphere, which will be demonstrated concretely for three distinct areas where proportionality predominates: the law of war, the law of maritime delimitation and international human rights law.

Everyday Lawmaking in International Human Rights Law: Insights from the Inclusion of Domestic Violence in the Prohibition of Torture

Abstract: How is international human rights law (IHRL) made “everyday”, outside of treaty negotiations? Leading socio-legal accounts emphasize transnational civil society activism as driver of norm change, but insufficiently consider power dynamics and the legal-institutional environment. This article sheds light on these dimensions of IHRL by reconstructing how domestic violence came to be included in the prohibition of torture in five international and regional human rights institutions. Through process-tracing based on interviews and a vast amount of documentation, the study reveals everyday lawmaking in IHRL as a complex, incremental process in which a wide range of actors negotiate legal outcomes. The political implications of this process are ambiguous, as it enables participation while creating hidden sites of power. In addition to challenging existing models of international norm change, this study offers an in-depth empirical exploration of a key development in the international prohibition of torture, and demonstrates the benefits of process-tracing as a socio-legal methodology.

Human Rights and Religion

Abstract: Human rights and religious traditions have had a long history of interaction, ranging from the medieval period to contemporary times. Since both are deeply implicated in not only violent conflict but also efforts to establish a more peaceful and just world, it is important to gain a synoptic understanding, both conceptually and in practical terms, of their interaction. The basic terms for this essay – “religion” and “human rights” – are themselves contested, and it is therefore necessary to assign them working definitions before examining some of the complexities of their relationship. Keywords: comparative philosophy; ethics; legal and political; religion; crimes against humanity; human rights; natural law; rights; terrorism; tolerance

Prison Inspection and Monitoring: The Need to Reform European Law and Policy

Abstract: Prison inspection and monitoring bodies are important safeguards against breaches of human rights. In recent years, prison inspection and monitoring has become a key focus for international human rights standards, particularly through the introduction of the Optional Protocol to the Convention against Torture (OPCAT) and the UN’s Standard Minimum Rules for the Treatment of Prisoners, which recognize the need for robust and effective systems of prison oversight. This article contends that European legal standards on inspection and monitoring have not kept pace with international developments. The content of European law concerning domestic-level prison inspection and monitoring is not clear, nor has it been consolidated or examined in depth. Through engaging in comparative analysis with international instruments, this article analyses standards promulgated by Council of Europe and European Union bodies on inspection and monitoring, arguing that they need reform in light of international developments. Taking the opportunity presented by the revision process for the European Prison Rules and associated commentary, the article proposes improvements to European legal frameworks. It welcomes proposals for stronger powers for inspection and monitoring bodies, advocates for a specific instrument on prison inspection and monitoring and calls for more empirical understanding of how such bodies operate in practice.

Finding the “Humanity” in Human Rights: LGBT Activists and the Vernacularization of Human Rights in Hong Kong

Abstract: Through an ethnographic analysis of Hong Kong LGBT activists’ fight for a gender recognition ordinance (GRO) that would simplify the process for transgender Hongkongers to change their legal gender, a paradox emerged: Why was a human rights framing of LGBT issues problematic when human rights were central to locals’ understanding of what it meant to be Hongkongers? Local LGBT activists’ vernacularization of human rights—or the process of localization of international human rights law into culturally relevant frameworks—hinged on reframing the need for a GRO as a matter of humanity, not human rights law. Relying on citations of human rights law among “ordinary citizens” violated the existing ways in which Hongkongers talked about human rights as a method of distinguishing Hong Kong from the rest of the People’s Republic of China. Furthermore, this need to differentiate emerged from the 2014 Umbrella Movement in which prodemocracy activists occupied various urban centers in Hong Kong for seventy-nine days. The Umbrella Movement caused a shift in which ordinary citizens became responsible for each other and defending what made Hong Kong unique. Ultimately, the vernacularization process requires closer attention to the ways in which human rights are being talked about on the ground.

Tilting at Windmills: Reparations and the International Criminal Court

Abstract: More than 20 years on from the signing of the Rome Statute, delivering victim-centred justice through reparations has been fraught with legal and practical challenges. The Court’s jurisprudence on reparations only began to emerge from 2012 and struggles to find purchase on implementation on the ground. In its first few cases of Lubanga, Katanga, and Al Mahdi the eligibility and forms of reparations have been limited to certain victims, subject to years of litigation, and faced difficulties in delivery due to ongoing insecurity. This is perhaps felt most acutely in the Bemba case, where more than 5,000 victims of murder, rape and pillage were waiting for redress, and the defendant was not indigent, but where he was later acquitted on appeal, thereby extinguishing reparation proceedings. This article critically appraises the jurisprudence and practice of the International Criminal Court (ICC) on reparations. It looks at competing principles and rationales for reparations at the Court in light of comparative practice in international human rights law and transitional justice processes to consider what is needed to ensure that the ICC is able to deliver on its reparations mandate. An underpinning argument is that reparations at the ICC cannot be seen in isolation from other reparation practices in the states where the Court operates. Reparative complementarity for victims of international crimes is essential to maximize the positive impact that the fulfilment of this right can have on victims and not to sacrifice the legitimacy of the Court, nor quixotically strive for the impossible.

A Disorder of the Humanitarian Sector: The New v Old Humanitarianism Debate

Abstract: A debate is continuing between old humanitarianism, based on neutrality and short-term, relief-based assistance, and new humanitarianism, centring on advocacy and development. This paper views this deliberation as the humanitarian equivalent of the legal discussion between international humanitarian law and international human rights law. It tries to regulate it using the lex specialis and the belt and suspenders approach. Whether or not to be neutral is the key issue. Analysis of this point makes it possible to reveal the limited functionality of the lex specialis: it does not determine which approach should and should not be employed; there is no superior methodology. In conclusion, the belt and suspenders approach helps one to comprehend that 'what is the right method for humanitarian actors?' is not the right question to ask; both positions are valid, or simply the two approaches apply. It is important, therefore, to clarify and combine old and new humanitarianism.

The Eritrean Military/National Service Programme: Slavery and the Notion of Persecution in Refugee Status Determination

Abstract: Despite the overwhelming evidence of human rights violations within the Eritrean Military/National Service Programme (“MNSP”), adjudication of asylum applications made by Eritreans remains a challenge. Narrow interpretations of slavery have created obstacles for protection under the 1951 Convention Relating to the Status of Refugees (“1951 Refugee Convention”). This article discusses MST and Others, the latest Country Guidance case on Eritrea issued by the UK Upper Tribunal Immigration and Asylum Chamber (“UTIAC”), and also the lead case E-5022/2017 of the Swiss Federal Administrative Court (“FAC”), which to a large extent replicated the UTIAC’s approach. The article focuses on how slavery, servitude and forced labour under article 4 of the European Convention on Human Rights (“ECHR”) have been interpreted in the British and Swiss case-law. While both, the British and the Swiss Courts, had recourse to the European Court of Human Rights’ (“ECtHR”) interpretation of article 4(1) ECHR (the right not to be subjected to slavery or servitude), they refused the applicability of international criminal law notions to this provision, and thus to the concept of “persecution” in article 1A(2) of the 1951 Refugee Convention. In doing so, the UTIAC and the FAC set unreasonable requirements to satisfy article 4(1) ECHR. Due to the very limited case-law pertaining to slavery by the ECtHR, the ECHR does not offer an appropriate framework for examining asylum applications of victims of slavery. It is therefore suggested that slavery cases are considered against a wider legal framework, which involves the examination of concepts developed by international criminal law (“ICL”). ICL has indeed developed a significant body of jurisprudence on the interpretation of the international law concept of slavery and its application to contemporary situations. The article contrasts the British and Swiss Courts’ position to develop an interpretative approach that connects different areas of international law, including not only international refugee law and international human rights law (“IHRL”), but also ICL. If applied in line with the principle of systemic integration and according to the overall purposes of the 1951 Refugee Convention, this approach would yield consistent results. Ultimately, this article seeks to assist asylum decision-makers and practitioners in the interpretation and application of the refugee definition to asylum applications of persons from Eritrea.

Addressing Climate Change through International Human Rights Law: From (Extra)Territoriality to Common Concern of Humankind

Abstract: International human rights law (IHRL) offers potential responses to the consequences of climate change. However, the focus of IHRL on territorial jurisdiction and the causation-based allocation of obligations does not match the global nature of climate change impacts and their indirect causation. The primary aim of this article is to respond to the jurisdictional challenge of IHRL in the context of climate change, including its indirect, slow-onset consequences such as climate change migration. It does so by suggesting a departure from (extra)territoriality and an embrace of global international cooperation obligations in IHRL. The notion of common concern of humankind (CCH) in international environmental law offers conceptual inspiration for the manner in which burden sharing between states may facilitate international cooperation in response to global problems. Such a reconfiguration of the jurisdictional tenets of IHRL is central to enabling a meaningful human rights response to the harmful consequences of climate change.

Due Diligence in International Environmental Law and International Human Rights Law: A Comparative Legal Study of the Nationally Determined Contributions under the Paris Agreement and Positive Obligations under the European Convention on Human Rights

Abstract: Due diligence is a frequently employed notion in international law, yet much is still to be explored about this concept. This article aims to contribute to an understanding of due diligence obligations in international law, which is useful as it can form the basis for a further clarification of corresponding legal rights of subjects of international law. With this purpose in mind, this article initiates the construction of a working model of due diligence in international law by exploring this notion from two perspectives: an accountability perspective and a regulatory perspective. Subsequently, this article will use this model to compare the operation of due diligence obligations in two branches of international law: international environmental law and international human rights law. In doing so, it will become clear that due diligence contains two core elements: ‘reasonableness’ and ‘good faith’. Moreover, it will become apparent that the operation of due diligence obligations in these two branches has implications for systemic issues in international law. Further research on the operation of due diligence obligations in other branches of international law is therefore recommended.

Prison abolition: international human rights law perspectives

Abstract: The article examines the compatibility of the international human rights regime with penal abolition as a body of critical social thought as well as a social movement seeking the abolition of priso...

Hostages and Human Rights: Towards a Victim Centred Approach

Abstract: Hostage-taking has increased in recent years and has become a problem of worldwide concern. Terrorists and pirates have used hostages in a rising number of incidents and the violence used has escalated alarmingly. Sofia Galani examines the taking of hostages from a victim's perspective, arguing that the international community has failed to protect them. By evaluating various international law concepts and frameworks, including jurisdiction in international law, state responsibility and international human rights law, Galani explains why we are still far from recognizing hostages as victims of human rights violations. She then addresses the question of what can be done to safeguard the human rights of hostages both in theory and practice. Being the first comprehensive study of the human rights of hostages, this book fills a critical gap in the literature for human rights lawyers and researchers in the field.

The case for treating violence against women as a form of sex discrimination in India

Abstract: Violence against women (VAW) is rampant in India, and rising every year. However, Indian laws are geared towards punishing individual instances of such violence, instead of attempting to eradicate ...

Foundations of global health & human rights: edited by Lawrence O. Gostin and Benjamin Mason Meier, Oxford, Oxford University Press Global, 2020, 504 pp, £97.00 (hardback), ISBN: 9780197528297, £49.00 (paperback), ISBN: 9780197528303, (Also available as an ebook from your preferred ebook provider)

Abstract: This edited book pioneers the interdisciplinary field of international human rights law and global health governance. It argues that global governance regimes have created and built a legal framewo...

Divided governmental structure and state compliance with international human rights law: A reputation-based approach

Abstract: Previous research has analysed a range of domestic stakeholders that make national governments’ commitments to international human rights law credible, including an independent judiciary, legislative veto players, political opposition groups, and non-governmental organizations. But how do the power dynamics within the government affect state compliance with international human rights law? Building on the basic understanding that international human rights law needs to pass through domestic political and administrative processes before it can be implemented on the ground, this article articulates a reputation-based theoretical framework to explain how the lack of reputational mechanisms at the local level and national leaders’ shifting of blame for non-compliance to sub-national officials and the internal governance structure – two salient characteristics in a decentralized political system – make international human rights law less effective. A case study of US compliance with Article 36 of the 1963 Vienna Convention on Consular Relations sheds light on how international reputational concerns interact with divided authority structure to shape national leaders’ and subnational authorities’ policy responses to the enforcement of international human rights standards.

International Refugee Regime: An Alternative Form of Protection for Human Rights Defenders?

Abstract: Human rights defenders (HRDs) are subjected to serious human rights violations through legal and extralegal actions. Notably, most of the abuses against them remain unpunished, perpetuating a vicious cycle of violence against them. There is room for doubt that international human rights law has failed to provide efficient protection for HRDs, and this article considers the international refugee regime as an alternative system of protection. In this sense the article first discusses the intersection between the terms ‘refugee’ and ‘human rights defender’ to establish that defenders fall within the protection of the 1951 Refugee Convention. Following an inductive reasoning, the article considers the most well-trodden defects of the refugee regime and the reluctance of HRDs to adopt refugee status; it concludes that this alternative may not be suitable for defenders. Besides a doctrinal approach, the article employs a socio-legal approach, which is enhanced by interviews with HRDs.

The Right to Freedom of Expression Versus Legal Actions Against Fake News: A Case Study of Singapore

Abstract: An epidemic of fake news may seriously harm a number of international human rights such as the right to health or the right to free and fair elections, while, on the other hand, remedies, restrictions, or precautions taken by policy makers may also create risks to international human rights, such the right to freedom of expression, in their attempts to fight against fake news. To struggle with fake news, policy makers have adopted legal regulations against, or have placed sanctions on, digital platforms. The Singaporean Government has passed legislation (POFMA) against fake news, and it provides severe criminal penalties. Further, the POFMA handicaps the maintenance and protection of the right to freedom of expression and opinion. It is important to control the dissemination of fake news; however, there is a threat that legal regulations restricting fake news may suffocate the right to free speech, and the adoption of heavy legal sanctions to restrict the circulation of fake news should be reviewed in the light of international human rights laws. This chapter analyses and criticises the POFMA and offers recommendations on how to fight against fake news in compliance with the standards of international human rights law.

State Responsibility for Trafficking

Abstract: This chapter provides a considered encapsulation of the international law principle of state responsibility. Its purpose is to show that although trafficking in persons is factually a crime committed by private persons or non-state actors, circumstances exist, under international law, upon which states can be held accountable nonetheless. These circumstances and the rules upon which a conduct becomes attributed to the state for the purpose of international responsibility are discussed in this chapter based on the work of the International Law Commission (2001) Draft Articles on the Responsibility of States for Internationally Wrongful Acts. Furthermore, this chapter uses the international human rights law principle of due diligence to argue for clear applicability of the principles of international state responsibility for acts of trafficking in persons, especially in circumstances where such acts result from non-state actors. The examination of the doctrine of state responsibility is also premised on the understanding that ordinarily, only states contain such means as to enforce and give effect to obligations emanating from customary and treaty law to which states are the chief subjects.

The Islamic Republic of Iran and children’s right to education: availability & accessibility

Abstract: The Islamic Republic of Iran is obliged to respect the right to education under international human rights law and has made legal commitments to conform to the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR) and the 1989 Convention on the Rights of the Child (CRC). Drawing on the framework developed by former Special Rapporteur of the UN High Commission for Human Rights on Education, Katarina Tomasevski, that education must be available, accessible, acceptable and adaptable, this article discusses Iran’s response to its obligation to make education available and accessible. It illustrates how the state is falling short in its duty to make education available and accessible to all children under its jurisdiction, reinforcing the gender inequities experienced by girls and practising religious discrimination in educational access.

Why do states ratify human rights treaties in transitioning societies

Abstract: From Northern Ireland to Sierra Leone, Bosnia-Herzegovina to the Democratic Republic of Congo, Afghanistan to Nepal, the transition from war to peace has historically presented an opportunity for t...