The traditional dichotomy of rights between civil and political rights, on the one hand, and economic, social and cultural rights, on the other hand, has been increasingly eroded in scholarly and judicial discourse. The interdependence of the two sets of rights is a fundamental tenet of international human rights law. Nowhere is this interdependence more evident than in the context of the United Nations Convention on the Rights of Persons with Disabilities (CRPD or UN Convention). This article examines the indivisibility and interdependence of rights in the CRPD and, specifically, the positive obligations imposed on States Parties to the UN Convention, in particular the reasonable accommodation duty. The aim of the paper is to analyse, from a disability perspective, the approach adopted by the European Court of Human Rights (ECtHR or ‘Strasbourg Court’) in developing the social dimension of certain civil and political rights in the European Convention on Human Rights (ECHR), namely Articles 2 and 3 (on the right to life and the prohibition on torture, inhuman and degrading treatment, respectively), Article 8 (on the right to private and family life) and Article 14 ECHR (on non-discrimination). Ultimately, this paper examines the influence of the CRPD on the interpretation by the Strasbourg Court of the rights of persons with disabilities under the ECHR. It argues that, while the Court is building some bridges to the CRPD, the incremental and often fragmented approach adopted by the Court could be moulded into a more principled approach, guided by the CRPD.
Tsvetelina van Benthem
Terrorist propaganda spreads like a pandemic across online platforms. In this volatile climate, control over social media is increasingly seen as a determinant bastion of power by both terrorist groups seeking to exploit the ubiquity of internet platforms and states aiming to impose restrictions on content disseminated online. Social media actors are gradually taking centre stage in the fight against terrorism as they attempt to curb incitement to violence in its evolving manifestations via sophisticated algorithms. While such measures are necessary for the protection of the general population's right to life and security of the person, these measures carry inherent risks of over-caution and threaten freedom of expression – a core right in democratic societies. This article argues that, notwithstanding the risks in granting quasi-judicial functions to online intermediaries, they should be employed as a carefully tailored tool to secure protection against arbitrary domestic measures, particularly in the fight against terrorism.
Johanna Aleria P Lorenzo
More than being funders of development projects, international financial institutions (IFIs) should also be viewed as international law-makers, or more specifically as participants in the international law-making process relating to sustainable development. Achievement of the Sustainable Development Goals (SDGs), as endorsed by the UN General Assembly, relies not only on the IFIs’ continued performance of their economic functions, but also on their collective efforts to set and apply standards for integrating economic, environmental and social considerations in development projects. In presenting IFIs as law-makers in the field of sustainable development, this article focuses on the ‘safeguard systems’ that IFIs have individually created in order to ensure the sustainability of the development projects they finance. Through the safeguard system and its components’ respective functions, IFIs clarify, elaborate and operationalise the concept of sustainable development, and thereby participate in the international law-making process relating to this concept. Additionally, the IFIs’ participation involves enabling other non-state actors to also participate in development decision-making at the international level. The law-making functions of IFIs and the emergence of a droit commun among them bear valuable insights and implications on the current discussion surrounding the new institutions, whose entry into the multilateral development banking system has elicited anxiety about a race to the bottom in sustainability standards. This article shows why this speculated outcome is not a foregone conclusion. It suggests that preventing a race to the bottom in sustainability standards entails strengthening one component of the safeguard system, the independent accountability mechanism, which interprets the system's other component, ie the IFIs’ environmental and social policies. The ongoing efforts to harmonise the IFIs’ safeguard policies should likewise be encouraged. As specialised international organisations and members of the international community, the IFIs (and their member states) should react to adverse competitive pressures with the overarching consideration of responding to the demands and expectations of the international community. This approach means continuing to implement the global commitment to the sustainable development principles of integration and public participation, as well as maintaining the protection of the rights and interests of people affected by development projects.
Róisín A Costello
This article analyses the current duties of non-state actors, specifically digital platform providers, to preserve and report content useful in the later prosecution of international criminal offences. The article illustrates the shortcomings of current legal mechanisms both at an international and national level by which such duties to preserve and/or report are imposed and proposes solutions which countenance a more developed role for the International Criminal Court in collecting and preserving open source evidence independent of non-state actor cooperation.
Tania Penovic and Ronli Sifris
International civil society has played a key role in shaping the international consensus which has facilitated the normative expansion of international law to accommodate abuses experienced by women. We examine this process of ‘feminisation’ with reference to the extent to which international law has accommodated women's lived experiences of violence and their struggle to secure the means to control their own fertility through access to reproductive health services, including abortion. While the movement to recognise violence against women as a human rights issue has garnered substantial support, the efforts of women's groups to advance consensus around reproductive rights, and particularly the right of safe access to abortion, have been highly contested. Conservative religious actors have mobilised to obstruct consensus at the international level and taken direct action at the local level to impede access to abortions. This direct action will be examined through a case study drawing on empirical research conducted in Australia. We will examine the activities of anti-abortion protest groups, their impact on the rights of others and the effectiveness of legislation put in place to restrict these activities within the radius of designated geographic zones. The consistency of these legislative regimes with international norms is evaluated within the framework of feminisation of international law.
Edited by Richard Clements, Ya Lan Chang, Kaara Martinez and Patrick Simon Perillo
In recent years the question of the lawfulness of economic activities in occupied territories has emerged as a matter of significant debate in international law. A number of non-governmental organizations and scholars maintain that international law prohibits economic relations with occupying states and this extends to territories under their control. Still, the legal framework governing the lawfulness of such relations remains unclear. In light of this, the present contribution aims to explore the lawfulness, under international law, of economic dealings by third party private actors in territories under prolonged occupation. It is argued that, since corporations are not direct holders of international law obligations, the duties of non-recognition and non-assistance do not extend to their activities. Similarly, it is shown that the development of a law of individual criminal responsibility in international law has not yet been accompanied by a regime of corporate criminal responsibility, thereby affirming the absence of any formal international normative dimension of transnational corporate activity. In the light of the inadequacy of traditional legal instruments to regulate corporate activity in occupied territories, the article finally turns to one of the main soft-law instruments governing such activity, namely the 2011 UN Guiding Principles on Business and Human Rights (UNGPs). The article provides some concrete examples of how the UNGPs have been successful in dissuading companies from carrying out economic activities in the occupied Palestinian territories and in the occupied Western Sahara. The main argument advanced here is that, in the absence of a hard regulatory framework governing corporate activities, soft-law instruments, such as the UNGPs, show great potential in bringing about a change of corporate conduct towards occupied territories. More fundamentally, this practice will hopefully lead to the adoption of a hard instrument on the topic.
Agustín Ruiz Robledo
This article analyses the European Court of Human Rights’ (ECtHR) doctrine on the right to free elections established in Article 3 of Protocol 1. What was initially a state obligation to hold elections eventually evolved into a genuine subjective right. The article aims to spell out the precise content of the right to free elections in Europe as stipulated by the ECtHR.
Yo Sop Choi and Andreas Heinemann
The rapid development of the ‘New Economy’ on a global scale has brought new issues of competition law, one of them concerning the licensing of standard essential patents (SEPs). Standardization allows interoperability and compatibility and thus enhances not only static but also dynamic efficiency. However, the procedures in standard setting organizations (SSOs) may not be used to unduly restrict competition. In Asia, for example, most competition regimes have highlighted their focus on fair and free competition, making clear that the field of SEP is no exception. Recently, the competition authorities in Korea and China have concluded that a breach of ‘fair, reasonable and non-discriminatory (FRAND)’ commitments may constitute violations of their competition rules, apparently taking inspiration from the case law in the EU. Therefore, it seems overdue to look at recent developments in competition law and policies on SEP and FRAND worldwide and to enquire into the divergence and convergence of competition law in selected jurisdictions. Despite considerable differences, a common feature of all competition regimes discussed in this article is that their goal is to keep markets in the information and communication technology sector as open as possible, including – and especially – with respect to standard-setting procedures.