Browse results
Abstract
From a practitioner’s perspective the intervention explores how digital technologies have enhanced the capacities of policy-makers in anticipating and responding to atrocity crimes including through development and access to sophisticated technologies to collect and verify evidence of crimes for justice and accountability. Digital technologies have also provided perpetrators with enhanced tools to target populations with greater precision and commit atrocities against them. The intervention argues that the harm perpetuated by digital technologies can be mitigated by holding developers of these technologies accountable for creating operating environments that are safe and by naming and shaming governments that use new technologies to target populations.
Abstract
The article explores the evolution of a key, yet relatively obscure, instrument relating to the ‘head’ of proceedings before the European Court of Human Rights (Court), namely interim measures. By employing the decisions related to the Polish rule of law crisis as a case study, the article contends that the Court’s use of interim measures in this context exhibits significant novelties compared to its previous practice, regarding both the scope and content of interim protection. More broadly, the Polish case study, along with other recent developments in the Court’s practice under Rule 39 of the Rules of Court, highlights a growing tendency to use interim measures for addressing systemic issues in the Contracting Parties. This aspect prompts a reflection on the evolving nature and function of interim relief under the European Convention on Human Rights, and on the outstanding procedural shortcomings of the Rule 39 machinery, which is currently undergoing a process of reform.
Abstract
Atrocities do not happen in a vacuum and incitement to discrimination, hostility, and violence is one of their main drivers – offline and now online. But states continue to disagree about how to deal with inciting speech. Under international law, there is much debate about whether obligations to prohibit incitement, such as the one found in Article 20(2) of the International Covenant on Civil and Political Rights, applies universally to all states. This article finds common ground in the overlooked human right to be free from incitement to discrimination, reflected in Article 7 of the Universal Declaration of Human Rights and binding on all states under customary international law. It gives rise to common but differentiated responsibilities to refrain from and protect individuals and groups from different forms of incitement. In the digital age, this right can be protected by a range of online content governance measures that this article explores.
Abstract
While longstanding critiques of the Responsibility to Protect (R2P) as a Western interventionist doctrine are well known, this intervention argues that a new form of backlash politics to the R2P is emerging from key Western states that have long been its strongest advocates and supporters. This intervention argues that this trend is disconcerting in that it risks returning to an international politics of complacency whereby states are no longer willing to acknowledge or accept responsibility to assist populations from mass atrocities occurring within the borders of a foreign state. Two strategies are advocated to counter this trend among governments. First, is to emphasise the successes as well as acknowledge the failures of R2P. Second, to clearly articulate how it is in every country’s own national interest to respond decently to conscience-shocking atrocity crimes occurring elsewhere.
Abstract
Citizens confronted with a domestic legislator remaining inactive in contravention of its human rights obligations may turn to the European Court of Human Rights (ECtHR or Court). Having already passed legal challenges at the ‘heads’ end of the European system of human rights, the question arises whether they can find redress at the ‘tail’. When the ECtHR establishes a violation due to a lack of regulatory framework, it may decide to indicate general measures in Article 46 and pilot judgments. Based on an analysis of case law, this paper elaborates on how the Court goes about its remedial practice in legislative inactivity cases. The observations relate to addressing the domestic legislator directly, and the frequency, legal status, content, and deadline of the measures. They can, at least in part, be explained by the Court’s adherence to the principle of subsidiarity. Still, many uncertainties concerning the Court’s practice remain.
Abstract
As the European Court of Human Rights (Court) considered the human rights impacts of climate change for the first time, its initial climate cases issued an invitation to think beyond climate change, and to interrogate key aspects of how the Court deals with systemic or societal problems. While its ruling in KlimaSeniorinnen v Switzerland presented much-discussed innovations in terms of the Court’s treatment of the admissibility and merits of climate cases, and especially in terms of the victim status test, the ‘tail’ end of the Court’s violation judgment has not received sufficient attention. Here the Court had a particular opportunity to respond to the structural nature of climate change. Its deferential remedial findings relate to the Court’s understanding of reparation and its own role, which in turn shape its willingness to open its remedial toolbox. The present piece interrogates the remedial options available in climate cases, focusing particularly on the KlimaSeniorinnen case to re-examine the idea that some issues are simply too extensive or too complex to receive scrutiny – or a remedy – from a human rights institution such as the Court.
Abstract
This article discusses the question of whether non-independent apex courts should be considered effective remedies that must be exhausted before lodging a complaint before the European Court of Human Right (Court). It first analyses the special position of domestic apex courts in the European Convention on Human Rights (echr) framework and argues that a domestic court cannot be considered an effective remedy if it is not duly independent. Then, it shows how the Court has so far evaded taking a clear position on this issue. Finally, the article argues that the Court should deal with such issues of independence under the exhaustion criterion. It shows how such an approach is in line with existing case law and corresponds to the logic inherent in Article 35 echr. In doing so, the Court would, moreover, stress the systemic importance of domestic judicial independence for the proper functioning of a subsidiary Convention mechanism.
Abstract
This article examines the constitutional right to compensation for the violation of fundamental rights in the Indian context. It begins by exploring the historical development of this right, tracing its origins to the drafting of the Indian Constitution in 1950. The article then goes on to analyse the current state of the law in India with respect to this right, examining recent judicial decisions and legislative developments in this area. One key finding is the significant expansion of the right to compensation for violations of fundamental rights in India over the past decade. This expansion has been driven in part by the evolution of constitutional jurisprudence on this issue, as well as by the increasing recognition of the importance of this right among legal scholars, policymakers, and civil society organisations. This research also identifies several challenges that continue to limit the full realisation of this right in practice, including limited access to justice, institutional capacity constraints, and inadequate legislative frameworks. Overall, this article provides a comprehensive and nuanced analysis of the constitutional right to compensation for violation of fundamental rights in India, contributing to the ongoing discourse in this area and providing valuable insights for legal scholars, policymakers, and other stakeholders interested in promoting human rights and the rule of law in India.
Abstract
For many years, there have been many unsuccessful calls made by the local and international community for Malaysia to abolish the death penalty from its legal system. Efforts have been made to challenge the constitutionality of the death penalty in Malaysian courts on the grounds that it violates the right to life and equality before the law or equal protection of the law as enshrined in the Federal Constitution, but they remain unsuccessful. This article argues that a new narrative must be put forward in the quest to abolish the death penalty in Malaysia.