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Integrated Human Rights in Practice

Rewriting Human Rights Decisions

Edited by Eva Brems and Ellen Desmet

This book aims to introduce concrete and innovative proposals for a 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.
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Eva Brems

The introductory chapter of the volume first introduces the concept of human rights integration and the methodology of rewriting. It then introduces the 15 rewritten opinions before analysing the contributors’ rewriting in terms of ‘what’, ‘how’ and ‘why’. In pragmatic terms, the implementation of human rights integration is expressed in the rewritten decisions mostly in terms of the introduction of references to external sources of human rights law (including soft law), in addition to some other sources of public international law. These include both primary sources (conventions, declarations), and the output of the monitoring bodies. The chapter gives an overview of these sources. It goes on to distinguish instances of implicit referencing from those of explicit referencing. Within the latter category the analysis of the rewrites reveals a range of different approaches. Finally, the chapter analyses contributors’ principled or pragmatic positions on human rights integration.

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Eva Brems

In this chapter, the author has rewritten a CEDAW case concerning coerced sterilization of a Roma woman. The CEDAW Committee established violations of three CEDAW provisions. Article 10(h) CEDAW obliges states to ensure access to information and advice on family planning. Article 12 CEDAW concerns access to health care services, including those related to family planning, as well as ‘appropriate services in connection with pregnancy, confinement and the post-natal period’. Article 16(1)(e) CEDAW states the equal right of men and women ‘to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights’. This rewriting exercise, which draws inspiration from ECtHR cases as well as from concluding observations of CAT, CERD and HRC, has two objectives: (1) beefing up the legal reasoning; and (2) adding a minority rights perspective (intersectionality). Under the first objective, the rewrite adds an explicit positive state obligation of a preventive nature, as well as a positive state obligation to investigate, and expands the references to external sources. Under the second objective, the rewritten text emphasizes two dimensions of the minority experience, by adding a cultural perspective, and an emphasis on vulnerability and marginalization.