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171. The Dawn of Article 18 ECHR: A Safeguard Against European Rule of Law Backsliding?

Author:
Floris Tan
Publication Date:
12-2018
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
This article examines an underexplored avenue for the protection of the rule of law in Europe: Article 18 of the European Convention on Human Rights. This provision prohibits States from restricting the rights enshrined in the European Convention for any other purpose than provided for in the Convention. In this contribution, the author argues, based on a combination of textual, systematic and purposive interpretations of Article 18, that the provision is meant to safeguard against rule of law backsliding, in particular because governmental restrictions of human rights under false pretenses present a clear danger to the principles of legality and the supremacy of law. Such limitations of rights under the guise of legitimate purposes go against the assumption of good faith underlying the Convention, which presupposes that all States share a common goal of reinforcing human rights and the rule of law. Article 18 could therefore function as an early warning that European States are at risk of becoming an illiberal democracy or even of reverting to totalitarianism and the destruction of the rule of law. The article then goes on to assess the extent to which the European Court’s case-law reflects and realizes this aim of rule of law protection, and finds that whereas the Court’s earlier case-law left very little room for an effective application of Article 18, the November 2017 Grand Chamber judgment in Merabishvili v. Georgia has made large strides in effectuating the provision’s raison d’être. As the article shows, however, even under this new interpretation, challenges remain.
Topic:
Human Rights, International Law, and Rule of Law
Political Geography:
Europe

172. The Arctic Railway and the Sámi: Reconciling national interests with indigenous rights

Author:
Agne Cepinsktye
Publication Date:
12-2018
Content Type:
Working Paper
Institution:
Finnish Institute of International Affairs
Abstract:
Finland and Norway are planning to build the Arctic Railway, stretching from Rovaniemi to Kirkenes through the homeland of the indigenous Sámi people. The state governments have acknowledged their duty to consult with the Sámi, whose culture and livelihoods the railway would affect, but the Sámi have dismissed the consultation efforts thus far as inadequate and have denounced the project. The dispute has exposed the ambiguity of the state’s duty to consult with indigenous peoples: international law firmly establishes the duty but does not prescribe specific rules for carrying it out. In Norway, the domestic regulatory framework concerning the consultation duty is more evolved and the practice of implementation is more consistent than in Finland, but both states still lack an effective legal incorporation of the duty. Despite the ambiguity, the scope of the consultation duty is determined by its purpose: creating favourable conditions to reduce power disparity between the state and indigenous peoples in order to reach an agreement that reconciles national interests with indigenous rights.
Topic:
Human Rights, Regional Cooperation, Indigenous, Transportation, and Railways
Political Geography:
Europe, Finland, Norway, and Arctic

173. The Case for Foreign Electoral Subversion

Author:
Cecile Fabre
Publication Date:
09-2018
Content Type:
Journal Article
Institution:
Carnegie Council
Abstract:
Most foreign policy is not implemented through war. Yet, with a few recent exceptions—like James Pattison’s 2018 monograph The Alternatives to War—political and moral philosophers have yet to explore all options between war and doing nothing.1 Here I consider one such option: subversive interference in a democracy’s nationwide elections. In that regard, the years 2016–2017 have proved rich in controversies. In France, Russian banks with close ties to the Kremlin provided cash loans to the National Front in the run-up to the 2017 presidential elections. In December 2017, the Australian premier announced a tightening of restrictions on foreign funding of political parties out of concern with alleged and undue Chinese influence on some Australian politicians. Last, but far from least, in the United States the Office of the Director of National Intelligence along with the CIA, FBI, and NSA all take the strong view, backed in part by social media data, that Russian authorities actively sought to undermine Hillary Clinton’s 2016 presidential campaign and to bolster Donald Trump’s.2 Interestingly, however, some of President Putin’s critics are vulnerable to the charge of hypocrisy. To give but two examples, the United States has a long history of interfering in the institutions and elections of its Latin American neighbors and, indeed, at the height of the Cold War, of its European allies. More recently, many believe that, absent U.S.-driven assistance, the Democratic Opposition of Serbia would have lost the 2000 Yugoslavian presidential election to Slobodan Milošević.3 Attempting to subvert the democratic elections of a putatively sovereign country is a time-honored way of bending the latter’s domestic and foreign policy to one’s will. However, it seems to elicit far more condemnation than war and, indeed, other forms of coercive diplomacy. Perhaps this is because, to many people, the rights of democratic participation have primacy over all other rights; or because most often electoral subversion takes place covertly. Either way, given how destructive those other modes of interference are, this is puzzling. I frame my inquiry as follows. I focus on the state-sponsored, nonviolent, nonkinetic subversion of nationwide elections (for short, subversion). Moreover, because I am interested in exploring whether there are any situations in which subversion may be justified, I consider cases in which subversion is used as a means to prevent or end large-scale human rights violations, though my argument also has implications for subversion as a tool of foreign policy in general. In addition, my aim is not to evaluate subversion as an alternative to war or, for that matter, to other measures, such as economic sanctions. Due to space constraints, I simply wish to show that, under certain conditions and subject to certain constraints, subversion is pro tanto justified. Whether it is justified all things considered—and, in particular, once one has taken into account other options—is another matter and one that I cannot settle here. Finally, although subversion affects election candidates, it above all undermines a citizen’s right to vote. Accordingly, in what follows I focus on the latter and not the former. Attempting to subvert the democratic elections of a putatively sovereign country is a time-honored way of bending the latter’s domestic and foreign policy to one’s will. However, it seems to elicit far more condemnation than war. Before I begin, let me outline the overall normative framework on which my arguments rely. I take it for granted that all individuals, wherever they reside in the world, have rights to the freedoms and the resources they need to lead a minimally flourishing life—in other words, human rights. Moreover, they hold those rights against all human beings and their respective governments. Put differently, on this cosmopolitan view, all of us, wherever we reside in the world, are under duties to all other individuals, wherever they reside, to respect their human rights. How precisely we discharge those duties partly depends on the institutional structures under which we live. Be that as it may, I am not under a stronger duty to respect my compatriots’ human rights—for example, not to be killed or to be given means of subsistence—than I am to respect those same rights of noncompatriots, and vice versa
Topic:
Foreign Policy, Human Rights, Sovereignty, Elections, and Election Interference
Political Geography:
Global Focus

174. The Universal Declaration of Human Rights at Seventy: Progress and Challenges

Author:
Ş. İlgü Özler
Publication Date:
12-2018
Content Type:
Journal Article
Institution:
Carnegie Council
Abstract:
On December 10, 1948, the United Nations General Assembly passed the Universal Declaration of Human Rights (UDHR), the most significant statement from the global community regarding what constitutes the ideal human life in any society and the rights to which all people are entitled. On the basis of the principles laid out in the UDHR, the international community has since negotiated a large number of human rights treaties and conventions and has developed plans of action in relation to all aspects of living a dignified life. The UDHR is arguably one of the most important documents in the history of human civilization; and to the extent that words on paper can change the world, the impact of the UDHR has been profound. However, despite providing a solid foundation for our collective understanding of the rights to which human beings are endowed, today we are still far from realizing these goals, and threats to the very principles enshrined in the UDHR continue to emerge. The declaration has now endured for seventy years, roughly the global average human life span. Thus, this occasion presents a good opportunity to take stock of what has been achieved, what has yet to be accomplished, and to consider the future longevity of this seminal declaration. As with any interpretation of something as complex as the impact of a document on the world, assessments of the UDHR and its ongoing role are mixed. Many in the field of human rights see a glass half full, characterizing the UDHR as a powerful tool that has dramatically shaped political and economic development throughout the world.1 Others focus on the space that remains empty, emphasizing the flaws that inhibit the realization of the document’s goals.2 Indeed, it must be admitted that, even given the indisputable progress that has been made over seven decades, there are today growing threats to human rights. These threats are the consequence of a number of global developments, including shifting geopolitical balances, extreme economic and social inequality, climate change, and a weakening of democratic institutions. These threats are very real, and it is important that human rights proponents monitor and respond to them. But here I argue that the threat to human rights is ever present. And thus, rather than focus on the advances and setbacks of this particular moment, this anniversary is an opportunity to consider the overall historical progression toward human rights as embodied in the UDHR and the obstacles that stand in the way of its full realization. Taking this broader view, there are two issues in particular that stand out as barriers to be overcome. The first is tied to the Westphalian state system, which has come to dominate human political organization. State sovereignty presents a fundamental challenge to any effort to establish universal norms. Implementing universal human rights will always be tremendously difficult in a system that affords final authority to state leaders who lack the necessary incentives. This is nothing new or surprising, of course, and it is not unique to human rights. But it nonetheless requires a careful consideration of how international declarations make their way from ideas on paper to practice. A declaration is only significant to the extent to which it is adhered. As a document with universal endorsement, the UDHR does indeed have power, and it can shape the behavior of actors who otherwise risk appearing to stand against history and human civilization. It can also be used as a normative weapon, both by citizens and by the international community, to shame hypocrites who violate the principles to which they and every nation in the world have agreed. But it is, nonetheless, just a document, and without correspondingly strong global institutional mechanisms to ensure implementation and compliance, its impact is limited. The second major issue is the way in which human rights ideals have been segmented. The separation of rights into social/economic and civil/political has enabled states to focus on some rights to the neglect of others. Global power shifts, especially under the hegemony of the post–Cold War United States, have led to exaggerated selective emphasis on just some of the rights embedded in the UDHR, when in fact none can be fully realized without a comprehensive approach. Political rights cannot be effectively exercised by those lacking access to basic economic necessities. And those meeting their economic needs may find that their voices as citizens are meaningless in a system characterized by vast inequality or in which national institutions are infected by mechanisms that leave them politically marginalized. Rights must be recognized as interconnected and they must be advanced in tandem. Emphasis on some principles to the exclusion of others undermines the comprehensive advancement of human rights. Thus, the current state of affairs is a product of the collective failure to address human rights holistically and to implement real monitoring and accountability measures for states, which are directly charged with upholding them within their borders.
Topic:
Human Rights, United Nations, Hegemony, and State Formation
Political Geography:
Global Focus

175. Our Voice Makes a Difference: A Civil Society Guide to Advocacy on Women, Peace and Security

Author:
Eleonore Veilet Chowdhury, Katrina Leclerc, and Kelly Yzique Zea
Publication Date:
01-2018
Content Type:
Working Paper
Institution:
Global Network of Women Peacebuilders (GNWP)
Abstract:
This publication, “Our Voice Makes A Difference: Civil Society Advocacy Toolkit on Women, Peace and Security,” was developed by GNWP, with support from Cordaid, to aid women’s advocacy efforts during the CSW sessions. It provides women’s rights and peace activists with information and insights on how to navigate global policy spaces such as the CSW to effectively advocate on issues they care about
Topic:
Security, Gender Issues, Human Rights, Women, Peace, and Advocacy
Political Geography:
Global Focus

176. The Impact of the European Court of Human Rights on Justice Sector Reform in the Republic of Moldova

Author:
Judithanne Scourfield McLauchlan
Publication Date:
11-2018
Content Type:
Journal Article
Journal:
Journal of Liberty and International Affairs
Institution:
Institute for Research and European Studies (IRES)
Abstract:
For this study, I reviewed the judgments of the European Court of Human Rights against the Republic of Moldova and the corresponding reports of the Committee of Ministers from 1997 through 2014. In addition, I interviewed more than 25 lawyers, judges, and human rights advocates. After analyzing the effectiveness of the Court in terms of compliance with the judgments in specific cases (individual measures), I will assess the broader impact of these decisions (general measures) on legal reforms and public policy in the Republic of Moldova. I will evaluate the effectiveness of the decisions of the ECtHR in the context of the implementation of Moldova’s Justice Sector Reform Strategy (2011-2015), the Council of Europe’s Action Plan to Support Democratic Reforms in the Republic of Moldova (2013-2016), and Moldova’s National Human Rights Action Plan (2011-2014). My findings will offer insights into the constraints faced by the ECtHR in implementing its decisions and the impact of the ECtHR on national legal systems.
Topic:
Human Rights, Reform, European Union, and Judiciary
Political Geography:
Europe and Moldova

177. The Narrative of Political Islam: Constitutionalism and Human Rights

Author:
Nikola Gjorshoski
Publication Date:
06-2018
Content Type:
Journal Article
Journal:
Journal of Liberty and International Affairs
Institution:
Institute for Research and European Studies (IRES)
Abstract:
One of the essential postulates of political orientation and determination for the building of stable societies and a functioning political system in its content recognizes and imposes the need to examine the relation of relevant political actors to constitutionalism and human rights as concepts and preoccupations for any modern society. Also, constitutionalism and human rights and freedoms as its inseparable category manifest the political values and the corpus of essential and common political goals and commitments of a particular political community. Political Islam as an ideological political subject has its own sources and a valuable orientation framework through which prisms and perceptions can be interpreted or extracted by individual axiological determinants to certain issues. This paper analyzes exactly the relations of political Islam with constitutionalism and human rights, and similarly to the so-called framework it draws attention to the concepts of power, the mechanisms of control and compliance with the Sharia regulations. At the same time, the importance of human rights and freedoms in the Islamic narrative, their nature and scope, as well as the differences with the western established documents in this area are emphasized and analyzed.
Topic:
Government, Human Rights, Islam, Constitution, and Sharia
Political Geography:
Middle East, North Africa, and Global Focus

178. The Scope of Application of the Charter’s Right to Good Administration of the European Union

Author:
Irena Cuculoska
Publication Date:
02-2018
Content Type:
Journal Article
Journal:
Journal of Liberty and International Affairs
Institution:
Institute for Research and European Studies (IRES)
Abstract:
Article 41 of the Charter for Fundamental Rights of the EU guarantees the right to good administration as a fundamental right of the EU citizens. It seems from the wording that Article 41 applies only to the institutions, bodies, and agencies of the Union, without mentioning the Member States. This gives it a narrower scope than that given in Article 51.1 concerning the scope of the Charter as a whole. This paper discusses the question of applicability of the right to good administration regarding the implications of Article 41 in this respect. The doubt that stems from this is whether the content of 51.1 prevails or, on the contrary, it must be ignored and taken as reference to the particular provision in Article 41.
Topic:
Human Rights, Treaties and Agreements, Governance, European Union, and Political Rights
Political Geography:
Europe

179. Committing to Justice for Serious Human Rights Violations: Lessons from Hybrid Tribunals

Author:
Elena Naughton
Publication Date:
12-2018
Content Type:
Working Paper
Institution:
The International Center for Transitional Justice (ICTJ)
Abstract:
Hybrid courts (or mixed tribunals combining international and national components) are no longer a novel approach to pursuing criminal accountability for egregious crimes of international concern (war crimes, crimes against humanity, and genocide). Created and implemented in diverse contexts around the globe for over a decade, they provide countries with an alternative to a fully domestic or international judicial process to hold perpetrators to account for mass atrocities. Over time, hybrid jurisdictions have proven themselves to be a viable model of justice in difficult circumstances. Although almost all have faced funding shortfalls at some time during their mandate and most have been met with strong opposition from those hostile to rigorous accountability efforts, each has investigated crimes and brought about justice where few if any other justice options existed. Their inherent strength rests, in part, on the flexibility they offer for responding to complex international crimes at the national level and on the opportunity they provide for promoting the exchange of information and expertise and for building capacity. There is no model hybrid tribunal. Rather, each hybrid court is established in response to the particular needs of the context and may be “internationalized” in varying ways and to different degrees. The degree of international involvement has almost always been negotiated to meet the needs of domestic authorities who were reluctant to cede sovereignty and to address the concerns of international actors who were uncertain about the adequacy of existing due process norms or wary of limitations in the state’s judicial, legal, and institutional capacity. As a result, a hybrid tribunal usually reflects the political compromises reached among the negotiating parties, most often the United Nations (UN) and the host state. The negotiation process itself can provide space for different factions to come together to build consensus around a common and sustainable approach to achieving accountability. They can also make accountability processes more responsive to the needs of victims and communities, including by giving victims the right to participate in the proceedings. Because of this process of give and take, hybrid tribunals offer the promise of independent justice within a mechanism that is capable of responding to complex international crimes at the domestic level.
Topic:
Human Rights, Humanitarian Intervention, Transitional Justice, and Humanitarian Crisis
Political Geography:
Global Focus

180. The Role of Victims in Criminal Proceedings

Author:
Howard Varney and Katarzyna Zdunczky
Publication Date:
05-2018
Content Type:
Working Paper
Institution:
The International Center for Transitional Justice (ICTJ)
Abstract:
This briefing paper focuses on the role of victims of human rights violations in criminal proceedings. This paper will provide examples of recent developments in the advancement of victim participation in criminal proceedings in international criminal law and domestic jurisdictions.
Topic:
Human Rights, International Law, Transitional Justice, Domestic Policy, and Human Rights Violations
Political Geography:
Global Focus