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Maria Augusta León Moreta

In Latin America extractive operations have given rise to the loss and environmental degradation of indigenous peoples’ territories. This, in turn, has implied the denial of the access of indigenous peoples to essential resources for their cultural, economic and social development. To compensate the loss of their livelihood, the Inter-American Court on Human Rights, states, multinational and financial institutions have recognised the right of indigenous peoples to benefit sharing. This article analyses the impact of this mechanism on indigenous peoples’ lives. While the definition and scope of benefit sharing is still being shaping at international level, its implementation depends on the political and economic interests at national level. The case of Shuar communities in Ecuador affected by the Mirador and San Carlos Panatza mining project illustrates how a top-down hierarchical approach to implementation leads to violent confrontation between state, corporations and indigenous peoples.

Tom Obokata

This article explores the key obligations imposed upon States under international human rights law to combat transnational organised crime. It begins by highlighting a number of human rights which are affected by various forms of organised crime, such as the rights to life, liberty and security, health, property, culture, as well as the prohibition on slavery/forced labour and other inhuman or degrading treatments. The article then analyses the key obligations imposed upon States under international human rights law, with particular reference to (1) investigation, prosecution and punishment, (2) protection of victims and (3) prevention. The main conclusion reached is that international human rights law is indeed useful as it encourages States to adopt a holistic approach capable of addressing the complex and multi-faceted nature of transnational organised crime beyond simple criminal justice responses.

G. Anthony Giannoumis and Michael Ashley Stein

Universal Design aims to ensure that everyone can equally use products, environments, programs, and services. This article examines the theoretical underpinnings and potential application of universal design by exploring its evolution through human rights and disability rights laws and policies. It is maintained that universal design arises from the complex relationship between human rights, disability rights, and access to and use of technology. Consequently, it is argued that in relation to the information society, it is most capable of promoting equal access and use of technology in three ways. First, universal design can increasingly account for human diversity. Second, universal design can progressively eliminate barriers to accessibility and usability. Third, universal design can augment broader participation in the design and development of technology. Conceptualising universal design foundations of usability and accessibility of technology as universal human rights precepts embraces social equality for everyone, and incorporates important but currently exclusive disability rights precepts.

Majid Nikouei and Masoud Zamani

What does the protection or prohibition of a speech tell us about the tripartite relationship between political power, democracy and rights? This question has somehow underscored the jurisprudence of the European Court of Human Rights in hate speech cases for more than a half century. We argue that this question has invariably placed the Court in an uneasy position, which is, choosing between a democracy empowered by unlimited freedom of speech, but with recurrent social tensions, and a democracy with rather strict hate speech laws, but at ease with different segments of population. That said, the jurisprudence of the European Court outlines a pattern by which to identify a specific direction for the evolution of rights and democracy. This article considers this pattern. Not only does this article, examine the pattern in the Court’s and the Commission’s jurisprudence, but it also argues that this pattern unfolds a subtle presence of Hobbesian and Lockean theories of political power and the limits in its midst. By invoking this presence, we indicate how the debate in the jurisprudence of the European Court has shifted from the language of protecting democracy to that of rights.

Daniel Thym

Abstract

Many experts of EU migration law deal with ECJ judgments on a regular basis, but they rarely reflect on how individual rulings on diverse themes such as asylum, family reunification or return relate to each other. This article fills that gap and presents a horizontal analysis of 155 judgments combining quantitative and qualitative findings. Our statistical survey shows that selected themes and references from certain countries dominate the ECJ’s activities. In qualitative terms, the article considers three overarching themes: the concept of public policy; the practice of statutory interpretation, including in light of objectives: the principle of proportionality and interaction with domestic courts. Our study shows that the search for cross-sectoral coherence defines much of the case law, although success of this venture is compromised by enduring inconsistencies, which complicate the emergence of a reliable and predictable judicial approach towards the interpretation of secondary legislation on migration.

Juan Pablo Aris Escarcena

Abstract

After the dismantling of “the great Jungle” of Calais, migrants have returned to settle in the territory of the region. In this article I analyse how different instances of the government have developed policies to expel them from the region. We will focus on how security and humanitarian techniques have been used to create an area (a hostile environment) where the physical and social life of migrants in transit is not sustainable. In particular, it will analyse the closing of service areas to freight trucks, the prohibition of food distribution to migrants in Calais, and the use of physical and symbolic violence against volunteers and migrants. The article is based on an analysis of forms of government through the concept of Milieu (Foucault, 2009) and proposes the concept of Hostile Environment as the materialization of the “Politics of Exhaustion” (De Vries & Guild, 2018).

Facing the Refugee Challenge in Europe: A Litmus Test for the European Union

A Critical Appraisal of the Common European Asylum System through the Lens of Solidarity and Human Rights

Cecilia Rizcallah

Abstract

According to mainstream discourse, the EU is facing a ‘refugee crisis’ due to a mass influx of asylum seekers, which is putting the Common European Asylum System (CEAS) under pressure. Although this article acknowledges that the CEAS is currently under pressure, it aims to take a different view from the assumption that the—admittedly significant—arrival of asylum seekers constitutes in itself a problem for the EU. It suggests that the problems encountered by the CEAS are rather symptomatic of a deeper gridlock resulting from this system’s lack of compliance with two main EU’s fundamental values, the respect of which constitutes the ‘fundamental premise’ of EU integration, namely solidarity and human rights. From both an historical and a legal perspective, the EU is indeed founded on a set of values comprising the respect of human rights and solidarity. The treaties further require their respect internally (i.e. Articles 2 and 6 TEU), but also vis-à-vis the rest of the world (i.e. Articles 3(5) and 21 TEU). However, the current responses to the arrival of asylum-seekers are, in several respects, in contradiction with these founding values. On the one hand, the internal management of the influx of refugees reveals a lack of solidarity and results in breaches of asylum-seekers’ fundamental rights. On the other, the EU’s asylum policy does not meet the requirement according to which the Union shall, in its relations with the wider world, uphold and promote these values. These observations lead us to believe that facing the refugee challenge constitutes, from a normative perspective at least, a litmus test for the EU at large. Indeed, the EU’s difficulties in dealing with the arrival of the asylum seekers—which have already been the subject of extensive research—appear to be the evidence of an identity crisis. The way the EU, hand in hand with its Member States, responds to this challenge thus amounts to a ‘decisively indicative test’ for its normative foundations that are a prerequisite for the viability of the entire undertaking, and, notably, of the principle of mutual trust.