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Contrary to how it is often portrayed, the concept of human rights
is not homogeneous. Instead it appears fragmented, differing in
scope, focus, legal force and level of governance. Using the lens
of key case studies, this insightful book contemplates human rights
integration and fragmentation from the perspective of its users.
The fragmentation of human rights law has resulted in an
uncoordinated legal architecture that can create obstacles for
effective human rights protection. Against this background, expert
contributors examine how to make sense - in both theoretical and
practical terms - of these multiple layers of human rights law
through which human rights users have to navigate. They consider
whether there is a need for more integration and the potential ways
in which this might be achieved. The research presented illustrates
the pivotal role that users play in shaping, implementing,
interpreting and further developing human rights law. Offering an
innovative perspective to the debate, this book will appeal to both
students and academics interested in human rights and the
methodological approaches that can be used in furthering its
research. Practitioners and policy makers will also benefit from
the forward thinking insights into how an integrated approach to
human rights could look. Contributors include: E. Brems, E.
Bribosia, P. De Hert, E. Desmet, E.K. Dorneles de Andrade, M.
Holvoet, D. Inman, B. Oomen, S. Ouald-Chaib, I. Rorive, S. Smis, O.
Van der Noot, S. Van Drooghenbroeck
This book aims to introduce concrete and innovative proposals for
an holistic approach to supranational human rights justice through
a hands-on legal exercise: the rewriting of decisions of
supranational human rights monitoring bodies. The contributing
scholars have thus redrafted crucial passages of landmark human
rights judgments and decisions, 'as if human rights law were really
one', borrowing or taking inspiration from developments and
interpretations throughout the whole multi-layered human rights
protection system. In addition to the rewriting exercise, the
contributors have outlined the methodology and/or theoretical
framework that guided their approaches and explain how human rights
monitoring bodies may adopt an integrated approach to human rights
law. Integrated Human Rights in Practice shows that even within the
current fragmented landscape of international human rights law, it
is possible to integrate human rights to a significantly higher
degree than is generally the case. Redrafted opinions deal with
major contemporary issues such as conscientious objection by health
service providers, intersectional discrimination of minority women,
the rights of persons with disabilities, the rights of indigenous
peoples against powerful economic interests, and the human rights
impact of austerity measures. This book's novel perspective and
applied, concrete examples make it an invaluable resource for
academics and students as well as judges, lawyers, and treaty body
members.
This book studies the role of international actors in the areas of
transitional justice and justice sector aid with respect to
traditional justice and legal pluralism in sub-Saharan Africa.
Based on a number of case studies, the chapters describe the kinds
of policies and interventions that are supported and financed by
international actors, with special attention for the kinds of
strategies that are deployed in order to address areas of tension
with human rights. The volume then explores the relationship
between international actors' practices and the body of knowledge
that exists in these domains, as well as in general socio legal
theory. Thereby, this contribution offers empirical data drawn from
examples of who is doing what in a series of case studies,
identifies regional trends and links them to the existing
literature by examining the extent to which the insights generated
so far by scholars and practitioners is reflected in the work of
international actors. Based on this, the book formulates a number
of hypotheses that may explain current trends and proposes
additional issues that need to be considered in future research
agendas. Finally, the volume links two fields of intervention that
have so far evolved in rather parallel ways and explores the
commonalities and differences that can be found in the areas of
transitional justice and justice sector aid.
Over the last decade, trans rights and gender variation as legal
and a human rights issues have been high on the international and
national agendas. Improved registration of and attention for gender
variation and gender incongruence is accompanied by attention for
the often far-reaching requirements that trans persons have to
comply with in order to obtain legal recognition of their actual
gender identity. A small but rapidly growing number of (mostly
European and South American) States have recently reformed their
legal frameworks of gender recognition by allowing trans persons to
change their official sex registration on the basis of gender
self-determination.Against that background, this book brings
together international experts to discuss questions and challenges
relating to the legal articulation of the emerging right to gender
self-determination and its consequences for law and society, such
as the future of sex/gender registration and the protection of
trans persons against discrimination. Given the importance of State
practice for the development of the right to gender
self-determination and its implementation in law, particular
attention is given to the national contexts of Belgium, Germany and
Norway. These three countries may be perceived as world leaders in
protecting trans rights, and therefore noteworthy 'laboratories'
for future State practice.
Children's rights law is often studied and perceived in isolation
from the broader field of human rights law. This volume explores
the inter-relationship between children's rights law and more
general human rights law in order to see whether elements from each
could successfully inform the other. Children's rights law has a
number of distinctive characteristics, such as the emphasis on the
'best interests of the child', the use of general principles, and
the inclusion of 'third parties' (e.g. parents and other
care-takers) in treaty provisions. The first part of this book
questions whether these features could be a source of inspiration
for general human rights law. In part two, the reverse question is
asked: could children's rights law draw inspiration from
developments in other branches of human rights law that focus on
other specific categories of rights holders, such as women, persons
with disabilities, indigenous peoples, or older persons? Finally,
the interaction between children's rights law and human rights law
- and the potential for their isolation, inspiration or integration
- may be coloured or determined by the thematic issue under
consideration. Therefore the third part of the book studies the
interplay between children's rights law and human rights law in the
context of specific topics: intra-family relations, LGBTQI
marginalization, migration, media, the environment and
transnational human rights obligations.
Stereotypes are beliefs about groups of people. Some examples,
taken from human rights case law, are the notions that 'Roma are
thieves', 'women are responsible for childcare', and 'people with a
mental disability are incapable of forming political opinions'.
Increasingly, human rights monitoring bodies including the European
and inter-American human rights courts, the Committee on the
Elimination of Discrimination against Women, and the Committee on
the Elimination of Racial Discrimination voice concerns about
stereotyping and warn States not to enforce harmful stereotypes.
Human rights bodies thus appear to be starting to realise what
social psychologists discovered a long time ago: that stereotypes
underlie inequality and discrimination. Despite their relevance and
their legal momentum, however, stereotypes have so far received
little attention from human rights law scholars. This volume is the
first one to broadly analyse stereotypes as a human rights issue.
The scope of the book includes different stereotyping grounds such
as race, gender, and disability. Moreover, this book examines
stereotyping approaches across a broad range of supranational human
rights monitoring bodies, including the United Nations human rights
treaty system as well as the regional systems that are most
developed when it comes to addressing stereotypes: the Council of
Europe and the inter-American system.
The Universal Declaration for Human Rights was approved in 1948 and
yet more than fifty years later some human rights-especially the
rights of groups such as women, minorities, and indigenous
peoples-continue to be at risk. This book examines recent
humanitarian catastrophes involving such groups and suggests how
the society of states may develop a collective capacity for human
rights enforcement. Above all, it emphasizes the long term efforts
to stabilize weak or failing societies and to develop democratic
governments on which the protection of human rights ultimately
depends.
With the proliferation of international organisations and their
ever increasing role in a wide range of policy fields, situations
multiply in which human rights are threatened or violated through
the actions, operations or policies of such organisations. The
present book, with carefully selected contributions from many
prominent scholars and practitioners, is the first to explore these
problems in a comprehensive manner and to examine the
accountability mechanisms that are available. In a first,
cross-cutting part, the contributions study general concepts, such
as the accountability of international organisations as an evolving
legal concept, international organisations as independent actors,
the logic of sliding scales in the law of international
responsibility and the relations between the international
organisations and their Member States in regard to their respective
obligations and responsibilities. The subsequent parts of the book
focus on the accountability for human rights violations
attributable to international organisations in four areas: (i)
peace and humanitarian operations; (ii) international civil
administration; (iii) economic governance; and (iv) staff of
international organisations.
Children's rights law is often studied and perceived in isolation
from the broader field of human rights law. This volume explores
the inter-relationship between children's rights law and more
general human rights law in order to see whether elements from each
could successfully inform the other. Children's rights law has a
number of distinctive characteristics, such as the emphasis on the
'best interests of the child', the use of general principles, and
the inclusion of 'third parties' (e.g. parents and other
care-takers) in treaty provisions. The first part of this book
questions whether these features could be a source of inspiration
for general human rights law. In part two, the reverse question is
asked: could children's rights law draw inspiration from
developments in other branches of human rights law that focus on
other specific categories of rights holders, such as women, persons
with disabilities, indigenous peoples, or older persons? Finally,
the interaction between children's rights law and human rights law
- and the potential for their isolation, inspiration or integration
- may be coloured or determined by the thematic issue under
consideration. Therefore the third part of the book studies the
interplay between children's rights law and human rights law in the
context of specific topics: intra-family relations, LGBTQI
marginalization, migration, media, the environment and
transnational human rights obligations.
This collection of essays interrogates how human rights law and
practice acquire meaning in relation to legal pluralism, ie, the
co-existence of more than one regulatory order in a same social
field. As a social phenomenon, legal pluralism exists in all
societies. As a legal construction, it is characteristic of
particular regions, such as post-colonial contexts. Drawing on
experiences from Latin America, Sub-Saharan Africa and Europe, the
contributions in this volume analyse how different configurations
of legal pluralism interplay with the legal and the social life of
human rights. At the same time, they enquire into how human rights
law and practice influence interactions that are subject to
regulation by more than one normative regime. Aware of numerous
misunderstandings and of the mutual suspicion that tends to exist
between human rights scholars and anthropologists, the volume
includes contributions from experts in both disciplines and intends
to build bridges between normative and empirical theory.
This collection of essays interrogates how human rights law and
practice acquire meaning in relation to legal pluralism, ie, the
co-existence of more than one regulatory order in a same social
field. As a social phenomenon, legal pluralism exists in all
societies. As a legal construction, it is characteristic of
particular regions, such as post-colonial contexts. Drawing on
experiences from Latin America, Sub-Saharan Africa and Europe, the
contributions in this volume analyse how different configurations
of legal pluralism interplay with the legal and the social life of
human rights. At the same time, they enquire into how human rights
law and practice influence interactions that are subject to
regulation by more than one normative regime. Aware of numerous
misunderstandings and of the mutual suspicion that tends to exist
between human rights scholars and anthropologists, the volume
includes contributions from experts in both disciplines and intends
to build bridges between normative and empirical theory.
One of the most remarkable aspects pertaining to the legal bans and
societal debates on the face veil in Europe is that they rely on
assumptions which lack any factual basis. To rectify this, Eva
Brems researched the experiences of women who wear a face veil in
Belgium and brought her research results together with those of
colleagues who did the same in four other European countries. Their
findings, which are outlined in this volume, move the current
discussion on face veil bans forward by providing a much-needed
insider perspective. In addition, a number of legal and social
science scholars comment on the empirical findings and on the face
veil issue more generally.
In fundamental rights adjudication, a court first has to determine
whether the interest at stake falls within the scope of the
fundamental right invoked. Whether or not an individual interest
falls within the scope or ambit of one of the fundamental rights
protected by the European Convention on Human Rights determines
whether or not the European Court of Human Rights can decide on the
merits of a case. This volume brings together a variety of legal
scholars in order to examine the scope of fundamental rights.
Topics range from the nature of human rights and the real or
imagined risk of rights inflation to theories of positive
obligations and social and economic rights. It contains
contributions of a theoretical nature as well as analytical
overviews of the ECtHR's approach. In addition, comparisons are
made with domestic, EU and international law.
Through redrafting the judgments of the ECHR, Diversity and
European Human Rights demonstrates how the court could improve the
mainstreaming of diversity in its judgments. Eighteen judgments are
considered and rewritten to reflect the concerns of women,
children, LGB persons, ethnic and religious minorities, and persons
with disabilities in turn. Each redrafted judgment is accompanied
by a paper outlining the theoretical concepts and frameworks that
guided the approaches of the authors and explaining how each
amendment to the original text is an improvement. Simultaneously,
the authors demonstrate how difficult it can be to translate ideas
into judgments, whilst also providing examples of what those ideas
would look like in judicial language. By rewriting actual judicial
decisions in a wide range of topics this book offers a broad
overview of diversity issues in the jurisprudence of the ECHR and
aims to bridge the gap between academic analysis and judicial
practice.
Through redrafting the judgments of the ECHR, Diversity and
European Human Rights demonstrates how the court could improve the
mainstreaming of diversity in its judgments. Eighteen judgments are
considered and rewritten to reflect the concerns of women,
children, LGB persons, ethnic and religious minorities and persons
with disabilities in turn. Each redrafted judgment is accompanied
by a paper outlining the theoretical concepts and frameworks that
guided the approaches of the authors and explaining how each
amendment to the original text is an improvement. Simultaneously,
the authors demonstrate how difficult it can be to translate ideas
into judgments, whilst also providing examples of what those ideas
would look like in judicial language. By rewriting actual judicial
decisions in a wide range of topics this book offers a broad
overview of diversity issues in the jurisprudence of the ECHR and
aims to bridge the gap between academic analysis and judicial
practice.
Traditionally, courts adjudicate fundamental rights cases by
applying substantive tests of reasonableness or proportionality.
Increasingly, however, European courts are also expressly taking
account of the quality of the procedure that has led up to a
fundamental rights interference. Yet this procedural review is far
from uncontroversial. There still is a lack of clarity as to what
'procedural review' really means, what its potential for judicial
decision-making is, how it relates and should relate to substantive
review, and what its limitations are. Featuring contributions from
experts in the field, this book is the first in-depth study into
procedural review, considering the theoretical and conceptual
issues at play, as well as the applicability of procedural review
in different legal systems. It will therefore be of great
importance to scholars and practitioners interested in fundamental
rights adjudication in Europe, judicial reasoning and procedural
justice.
Traditionally, courts adjudicate fundamental rights cases by
applying substantive tests of reasonableness or proportionality.
Increasingly, however, European courts are also expressly taking
account of the quality of the procedure that has led up to a
fundamental rights interference. Yet this procedural review is far
from uncontroversial. There still is a lack of clarity as to what
'procedural review' really means, what its potential for judicial
decision-making is, how it relates and should relate to substantive
review, and what its limitations are. Featuring contributions from
experts in the field, this book is the first in-depth study into
procedural review, considering the theoretical and conceptual
issues at play, as well as the applicability of procedural review
in different legal systems. It will therefore be of great
importance to scholars and practitioners interested in fundamental
rights adjudication in Europe, judicial reasoning and procedural
justice.
One of the most remarkable aspects pertaining to the legal bans and
societal debates on the face veil in Europe is that they rely on
assumptions which lack any factual basis. To rectify this, Eva
Brems researched the experiences of women who wear a face veil in
Belgium and brought her research results together with those of
colleagues who did the same in four other European countries. Their
findings, which are outlined in this volume, move the current
discussion on face veil bans forward by providing a much-needed
insider perspective. In addition, a number of legal and social
science scholars comment on the empirical findings and on the face
veil issue more generally.
In fundamental rights adjudication, a court first has to determine
whether the interest at stake falls within the scope of the
fundamental right invoked. Whether or not an individual interest
falls within the scope or ambit of one of the fundamental rights
protected by the European Convention on Human Rights determines
whether or not the European Court of Human Rights can decide on the
merits of a case. This volume brings together a variety of legal
scholars in order to examine the scope of fundamental rights.
Topics range from the nature of human rights and the real or
imagined risk of rights inflation to theories of positive
obligations and social and economic rights. It contains
contributions of a theoretical nature as well as analytical
overviews of the ECtHR's approach. In addition, comparisons are
made with domestic, EU and international law.
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