Networks of European National Human Rights Institutions

This article concerns the networks of European national human rights institutions (NHRIs). It examines how the sharing of best practices takes place through networks and how NHRIs achieve cooperation at both the international and regional levels. The article also analyses NHRI cooperation within three organisations: the United Nations, the Council of Europe and the EU. While cooperation at the international level facilitates their accreditation according to their compliance with the Paris Principles and enables them to participate in the sessions of the Human Rights Council, cooperation at the European level allows them to exchange information on issues of common concern and strengthens their relationship with regional bodies. In Europe, NHRIs cooperate with the Commissioner for Human Rights of the Council of Europe and might also do so with the recently established Fundamental Rights Agency of the EU.     

Towards a common standard of protection of the right to housing in Europe through the charter of fundamental rights

The trend towards the financialisation of housing since the 1980s and the global financial crisis exposed a dramatic lacuna in the legal protection of the right to housing. Yet, the right to housing features not only in national and international human rights instruments, but also in the EU Charter of Fundamental Rights. Charter rights are increasingly finding expression in the case law of the Court of Justice of the European Union (CJEU). In particular, drawing on the Charter, the CJEU's interpretation of EU consumer law is moving towards a recognition of housing rights as inherent components of consumer protection. On the basis of such developments, this article examines whether there is scope to extend this human rights approach to new areas – namely, to the Mortgage Credit Directive (2014) – a major EU harmonising measure – and to the work of EU institutions now responsible for banking supervision. The article concludes that, if guided by the Charter of Fundamental Rights, the case law of the CJEU and the practice of supranational banking supervision could significantly enhance the protection of the right to housing, both at EU and Member State level.     

From Cold War Instrument to Supreme European Court: The European Court of Human Rights at the Crossroads of International and National Law and Politics

The history of the genesis and institutionalization of the European Convention on Human Rights offers a striking account of the innovation of a new legal subject and practice—European human rights—that went along with, but also beyond, the political and legal genesis of Europe following World War II. The rise of the European human rights institutions shows not only how law and lawyers played key roles in the early politics of European integration but also how the subtle combination of law and politics—as both national and international strategies—continued to play a decisive part in the institutionalization of European human rights. The article generally argues that the interplay between law and diplomacy had a fundamental impact on the innovation of European law and that lawyers capable of playing an intermediary role between the two were particularly central to this development.     

Copyright ownership in university students' academic works

Legal context. The impact of human rights on intellectual property(‘IP’), particularly in the light of the Human RightsAct 1998 and growing criticism of IP by civil society. Key points. There can be a greater legal, as well as political,role for human rights in the development of IP. The place ofhuman rights in IP litigation is established: see decisionsin Levi v Tesco, Ashdown v Telegraph and ITP v Coflexip. However,the impact of human rights has been limited to extreme peripheralcases, without challenging the central priority accorded tothe interests of IP owners. After considering practical applicationsin ‘non commercial’, ‘hybrid’, and ‘commercial’fields, this article argues for a more pervasive and centralrole for human rights, by greater reference to the Human RightsAct 1998, the EU Charter, international human rights instruments,TRIPS and decisions of other jurisdictions. This should enablea more balanced outcome to be reached in many, but not all,cases. Practical significance. IP owners, those challenging IP rights,and those advising them should all consider greater use of humanrights in IP litigation—not just in exceptional cases.Those resisting infringement may increase their prospect ofsuccess; those arguing for infringement will be better placedto counter arguments which may be raised. However, revisionof national, regional and international IP legislation wouldbe required to address all perceived social difficulties withIP.     

Global rights and regional jurisprudence

This article asks whether a “law-as-integrity” approach to human rights adjudication provides a theoretical framework within which to make sense of authoritative regional interpretations of basic human rights for the global community. To focus analysis, I consider U.S. court interpretations of international human rights as an interpretive context. I argue that, with appropriate modification so as to include the world community as a “community of principle” for purposes of human rights adjudication, the law-as-integrity perspective permits disputes surrounding the legality of human rights to revolve around competing interpretive claims backed up by justifying legal theories, rather than as ideological battles external to a juridical philosophy of rights.     

Challenging Corporate 'Humanity': Legal Disembodiment, Embodiment and Human Rights

This article interrogates the corporate use of human rightsdiscourse. It does so in light of concern surrounding corporatedistortion of the Universal Declaration of Human Rights (UDHR)paradigm,¹ and in light of the fact that corporations can claimshelter under human rights documents, particularly—asrecently discussed by Emberland²—the European Conventionof Human Rights and Fundamental Freedoms (ECHR). The authoroffers a critical exploration of corporate human rights claims(and some arguments advanced in their favour), and identifiesthe phenomenon of legal disembodiment (or ‘quasi-disembodiment’),linking it to both a genealogical account of human rights andthe nature of liberal legal personality. This reading of humanrights genealogy invites the reader to focus on a series ofparadoxes surrounding human rights, including their nature asa form of sacral construct, and locates human rights at an entrenchedand challenging interface between historical and contemporarypatterns of inclusion and exclusion. Quasi-disembodiment emergesfrom the analysis as a key conceptual conduit for the legalreception of corporate human rights claims. Linking the ECHRto the liberal human rights tradition, the author suggests thatnotwithstanding judicial protection of corporations as beneficiariesof ECHR protection, it remains essential to engage in a normativecritique of the very notion of corporate human rights. Beneathhuman rights law (and the related closures of legal discourse)it is possible to trace a human rights-oriented critique thatadopts human embodiment (and its quintessential link with humanvulnerability) as the ethical foundation of human rights.³ Emphasisingembodied vulnerability as the foundation of human rights yieldsa significant and ethically relevant distinction between corporationsand human beings—a distinction with intriguing possibilitiesfor the future theorisation of human rights—and one thatarguably problematises the corporate use of human rights discourse.     

Reporting under International Human Rights Treaties: Perspectives from Timor Leste's Experience of the Reformed Process

This article explores Timor Leste's experience of reportingunder the reformed international human rights treaties reportingsystem during the period 2004–2007. Whilst consciousnesshas grown of the difficulties faced by states by the duplicationof treaty reporting processes and the resource burden representedby reporting, the reforms instituted to date have been comparativelyminor. Timor's experience with the new Common Core Document(CCD)/treaty-specificdocument format affirms that reporting serves useful purposes,particularly in stimulating human rights education initiatives,government/NGO collaboration and awareness of human rights gapsin practice. The reformed process highlights cross-cutting humanrights matters. Yet, significant challenges remain, particularlyfor developing, post-conflict states, before reporting willattain its desired potential of support for improved human rightspromotion and protection at the national level. The CCD itselfraises complex conceptual difficulties needing resolution. Thereremains a paucity of appropriate methodological tools to supportthe reporting process and facilitate the integration of humanrights and development goals. Further work is thus needed toshape a sustainable process for reporting.     

Shadows in Paradise - Exploring Non-Refoulement as an Open Concept

The principle of non-refoulement contains a paradox. While stateshave committed to respecting the principle by joining the 1951Refugee Convention and key human rights conventions, its contentis not established in international law. In other words, stateshave committed to a principle the content of which is indeterminate.Since no common definition exists, in practice, national andinternational bodies have extensive powers of discretion togive content to the terms ‘persecution’, ‘torture’,‘degrading’ or ‘cruel’ treatment. Thepurpose of this article is to explore non-refoulement as anopen and ambiguous concept. Acknowledgement of the indeterminacyis important, as open concepts never remain such in practicebut are always issued with content or interpreted. This approachcalls for a further question: how do interpretations come aboutand what kind of factors influence them? The conclusion of thearticle is that different national and international actorspromote their own ‘correct’ interpretations of thiskeystone of refugee protection.     

Security Council's Anti-terror Resolutions and their Implementation by Member States: An Overview

In the framework of the fight against international terrorismthe UN Security Council (SC) has adopted targeted sanctionsagainst individuals and corporate entities. Furthermore, ithas imposed on states a number of obligations of a general nature.The implementation of all these measures — some of whichbear on sensitive aspects of criminal law and procedure —is left to the Member States. This article attempts to providean overview of national implementation practices, based on thenational reports submitted by states pursuant to the relevantSC resolutions. Besides the many difficulties encountered bystates in implementing SC resolutions, the encroachment of anti-terrormeasures on human rights is a cause for concern. The currentattitude of the SC, which has integrated human rights considerationsinto the security concerns that inspire its action under ChapterVII of the Charter, should enhance the perception of legitimacyof its anti-terror policy and, arguably, improve the effectivenessof its measures.     

Towards an EC directive on plant breeder's rights?

Legal context: Although ‘Brussels’ has established many Directivesand Regulations in the field of IP law during the last two decades,there is still no Council Directive on plant breeder's rights. Key points: The article first examines the current national plant varietyprotection laws in force in the EC Member States. It then focuseson some figures with regard to national applications and Communityapplications for plant breeder's rights filed in the years 2001–2005.Subsequently, it discusses a number of optional provisions laiddown in the 1991 UPOV Convention and it points out the manydifferences in national laws that result from this UPOV text.In particular, it draws attention to national differences withregard to the protection of products made directly from harvestedmaterial, the farmer's privilege, and the term of protection. Practical significance: The article concludes that national applications for plant varietyprotection still play a significant role next to Community applications.It argues that the establishment of a Directive would be worthconsidering, as the differences between the laws of the MemberStates lead to barriers to the free movement of goods and toa distortion of the conditions of competition on the commonmarket.     

Market Fundamentalisms: Business Ethics at the Altar of Human Rights

In this article the author explores what he terms ‘anemergent trade-related, market-friendly paradigm of human rights’,in contrast to the paradigm of human rights enshrined in theUniversal Declaration of Human Rights (UDHR). It focuses ona reassertion of the UDHR paradigm in relation to corporategovernance and business conduct, looking specifically at theProposed Norms on the Responsibilities of Transnational Corporationsand Other Business Enterprises with regard to Human Rights (‘Norms’).The article examines, in this respect, five central themes:the intertextuality of the Norms; the ‘network’conception of trade and business conduct; ways of categorisinghuman rights obligations; duties regarding implementation ofthe Norms; and, finally, related ethical theory concerns.     

The health and human rights movement: progress and obstacles

There is a new maturity about the health and human rights movement as it endeavours to integrate human rights into health policies at the national and international levels. In addition to the traditional human rights techniques, such as "naming and shaming", the movement is also using new approaches such as indicators, benchmarks and impact assessments. However, it is confronted with a range of major obstacles and this article focuses on two of them: the inadequate engagement within the health and human rights movement of (i) established human rights non-governmental organisations and (ii) health professionals. This article argues that established human rights non-governmental organisations should work on health and human rights issues, such as maternal mortality, just as vigorously as they already campaign on disappearances, torture and prisoners of conscience. Also, it emphasises that health and human rights complement and reinforce each other. Nevertheless, many health professionals have never heard of the right to the highest attainable standard of health. The article argues that there is no chance of operationalising the right to health without the active engagement of many more health professionals, and it makes some preliminary observations about steps that might be taken to deepen health professionals' engagement in the health and human rights movement.     

What Happens to Law in a Refugee Camp?

How do people living in a refugee camp engage with legal practices, discourses, and institutions? Critics argue that refugee camps leave people in “legal limbo” depriving them of the “right to have rights” despite the presence of international humanitarian actors and the entitlements enshrined in international law. For that reason, refugee camps have become a highly visible symbol of failed human rights campaigns. In contrast, I found in an ethnography of the Buduburam Refugee Camp in Ghana, West Africa, that although people living as refugees faced chronic insecurity and injustice, they engaged extensively with several different facets of the law. I illuminate three interrelated dimensions of their experiences: (1) their development as international legal subjects; (2) their alienation from domestic legal institutions; and (3) their agency within the legal field. The article contributes to the research agenda on law in humanitarian settings an empirically grounded account of the subjective dimensions of legal alienation and mobilization in a refugee camp. More broadly, it contributes to international human rights debates by theorizing a mixed outcome of international human rights campaigns: the emergence of wards of international law, people deeply embedded in the international legal system, but alienated from local law.     

论欧洲理事会的人权保护制度对建立和完善国际人权保护制度的影响

欧洲理事会采取集体办法促进和保护人权的理论和实践对建立和完善国际人权保护制度产生了深远的影响 :区域性人权保护办法是在区域层面上施行《世界人权宣言》的有效途径 ;国际人权机构应通过改革不断提高人权的可司法性 ;主权国家应在采取集体办法保护区域人权方面积极行使主权权利 ;人权国际保护内在地要求增强个人的权利主体意识 ;国际人权保护机构应不断提高其工作效率。随着欧洲理事会的人权保护制度的不断完善 ,它在人权国际保护中的“领跑者”的形象和影响将得以继续显现。     

建立我国刑事侦查阶段的司法审查制度——源于人权保障的思考

在刑事侦查阶段中,国家安全价值的实现与公民个人自由价值权利的冲突时有发生,侦查机关为了查明案件事实、查获犯罪嫌疑人往往需要使用强制性措施,这直接关系到惩罚犯罪与保障人权目的的实现。我们必须通过建立我国刑事侦查阶段的司法审查制度来实现保障人权的价值目标。     

The Protection of Prisoners’ Rights in England and Wales

The system in England and Wales for the protection of prisoners’ rights relies on three institutions: a prisons inspectorate with right of entry to all prisons at any time, a prisons and probation ombudsman, and local independent monitoring boards. This contribution focuses on the Prisons Inspectorate and discusses its methodology and criteria for inspection, based on international human rights standards; the effectiveness of the inspectorate; its independence and relationships with other monitoring bodies, the government and the prison service; the application of the methodology to other countries outside the UK; and future developments and threats.     

The European Union and Human Rights: Towards A Post-National Human Rights Institution?

There is growing evidence that the European Union (EU) is becomingmore involved in human rights protection and has the capacityto turn into an unprecedented post-national human rights protectioninstitution. Based on that evidence, this article suggests differentarguments in favour of a further development in this direction.These arguments stem not only from a general global justiceapproach to post-national institutions’ responsibilities,but also from the concept of human rights itself and the specificneeds of human rights protection at the post-national level.The EU's institutional framework presents advantages that fitthe general criteria of institutional design in the human rightscontext. Of course, many doubts and critiques may be raisedagainst an entity which started primarily as a functional andeconomic institution, and important reforms, some of which areventured in the present article, are still needed to get theEU closer to this institutional ideal. More generally, the articleemphasises the unique example and precedent the EU may constitutefor normative institutional thinking about global justice atthe post-national level.     

Government(ality) by Experts: Human Rights as Governance

The suggestion that the general economy of power in our societies is becoming a domain of security was made by Michel Foucault in the late 1970s. This paper takes inspiration from Foucault’s work to interpret human rights as technologies of governmentality, which make possible the safe and secure society. I examine, by way of illustration, the site of the European Union and its use of new modes of governance to regulate rights discourse—in particular via the emergence of a new Fundamental Rights Agency. ‘Governance’ in the EU is constructed in an apolitical way, as a departure from traditional legal and juridical methods of governing. I argue, however, that the features of governance represent technologies of government(ality), a new form of both being governed through rights and of governing rights. The governance feature that this article is most interested in is experts. The article aims to show, first and foremost, how rights operate as technologies of governmentality via a new relation to expertise. Second, it considers the significant implications that this reading of rights has for rights as a regulatory and normalising discourse. Finally, it highlights how the overlap between rights and governance discourses can be problematic because (as the EU model illustrates) governance conceals the power relations of governmentality, allowing, for instance, the unproblematic representation of the EU as an international human rights actor.     

Law and Institutional Legitimacy in the Practice of Human Rights

The Heart of Human Rights develops an account of human rights as legal entities that serve important moral purposes in a legitimate international human rights practice. This paper examines Allen Buchanan’s general concept of institutional legitimacy and aims to expand that concept by emphasizing its connection with several ideas developed in the book about the nature and function of a system of international human rights. When it incorporates those ideas, Buchanan’s ‘Metacoordination View’ can be seen to set a standard of legitimacy not only for assessments of an international scheme of human rights institutions, but also for the basic institutional structures of domestic states. Furthermore, we can see how the nature and function of human rights in the international practice of human rights bears on legitimacy assessments of particular domestic institutions.     

Nomadic Territories: A Human Rights Approach to Nomadic Peoples' Land Rights

In most societies nomadic peoples face discrimination. At theheart of this discrimination frequently lies the crucial issueof property in land. The sharing of lands between nomads andsettled agriculturalist societies has often led to violent confrontation.Access to land is a determining factor for many nomadic peoplesas whether or not nomads have access to land will determinethe survival of their mobile lifestyle. Historically nomadicpeoples have not been regarded as having any rights to landbecause their nomadic lifestyle was not considered to fulfilthe criterion of ‘effective occupation’ of the land.By exploring the evolution of international law regarding nomadicpeoples’ land rights, this article analyses how humanrights law could provide nomadic peoples with rights to usetheir lands. Ultimately, this article argues that under thebanner of international human rights law, nomadic peoples aregaining the right to live on their land in their traditionalways through the gradual establishment of a specific corpusof law dedicated to the rights of nomads.