Tag: Human Rights

UDHR@75: Article 14 and Climate Refugees

Climate Change, Human rights, Inequalities, Refugees, UDHR

Photo credit: Priscilla Du Preez

This blog forms part of a series celebrating the 75th anniversary of the Universal Declaration of Human Rights (UDHR). Recognising the numerous conflicts and the daily breaches of human rights taking place across the globe, this series aims to highlight both the challenges and the opportunities to respect, protect and fulfil the human rights elaborated in the UDHR.

 

 

Article 14 and Climate Refugees 

Article 14(1) of the UDHR

‘Everyone has the right to seek and to enjoy in other countries asylum from persecution.’

Article 14 of the Universal Declaration of Human Rights (UDHR) states that people have the right to seek asylum from persecution. This right traditionally applies to those who are persecuted due to race, religion, nationality, membership of a particular social group or political opinion, as specified in the subsequently adopted Refugee Convention. However, the understanding of what necessitates seeking asylum has evolved over the last 75 years since its inclusion in the UDHR. In the 21st century, this is now changing again to adapt to new challenges such as climate and environmental displacement. According to the Institute for Economics and Peace, current predictions suggest that by 2050, there could be 1.2 billion people displaced from climate and environmental threats, making climate refugees a ‘top priority’ for the UNHRC going forward.  

Throughout its history, the right to asylum in the UDHR has evolved to encompass situations beyond its original understanding. Internally displaced persons (IDPs) are an example that demonstrates the dynamic nature of the right to asylum. IDPs are individuals who are forced to relocate on similar grounds as refugees, although they do not cross international borders. Despite bearing similar protection needs described in Article 14, internally displaced persons (IDPs) were not traditionally considered under the asylum framework. However, international protection gradually became applicable for IDPs, expanding the grounds for receiving protections under this right. Additionally, this framework has recently been applied to people displaced by natural disasters. Although the term “refugee” has been avoided, the support processes share many similarities with those of refugees and have therefore also been addressed under this framework. 

The ongoing changes to international protection needs that emerge as a result of climate change threats suggest the necessity to broaden the scope of Article 14. Inhabitants of certain island nations, such as Kiribati, have already needed international protection due to displacement from rising sea levels. However, with a traditional understanding of asylum, it remains difficult to extend protections to people displaced by environmental factorscreate an applicable framework to resolve the discrepancy between the need and access to protection. The current use of the asylum regime in state practice and the acknowledgement of the limitations of a persecution-based understanding of protection demonstrates both the opportunities and challenges of utilising this framework for future problems. 

The future is expected to bring an increasing number of individuals impacted and displaced by climate change and environmental threats. As a result, it is imperative to develop how international law can support these individuals. The past success of Article 14 and the broader asylum framework to adapt dynamically to changing necessities demonstrates its applicability in addressing climate refugees. Since the need for international protection remains the same from the traditional understanding of refugees to climate refugees, Article 14 is becoming highly significant in the search for solutions to this global problem.  

 

As part of the GJA UDHR@75 celebration, we invited present and past students to contribute their personal reflections on the relevance of the UDHR today. This blog is by Şükrü Kağan Sürücü and Lucy Tomkins. They are PhD Law Candidates at the University of Edinburgh.

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UDHR@75: Right to Effective Remedy

Human rights, Incorporation, Right to Remedy, UDHR

Photo credit: Priscilla Du Preez

This blog forms part of a series celebrating the 75th anniversary of the Universal Declaration of Human Rights (UDHR). Recognising the numerous conflicts and the daily breaches of human rights taking place across the globe, this series aims to highlight both the challenges and the opportunities to respect, protect and fulfil the human rights elaborated in the UDHR.

 

 

Right to Effective Remedy 

Article 8 of the UDHR

‘Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.’

The right to an effective remedy is the bedrock of human rights protection, offering a lifeline to those victimized by violations. It ensures access to justice through domestic courts, a critical element in upholding the rule of law and societal order. Without this avenue, vulnerable individuals are left without recourse, paving the way for unchecked impunity and the perpetuation of human rights abuses. However, pursuing an effective remedy isn’t a straightforward path, often proving practically unattainable, particularly for victims facing multiple violations or encountering legal and bureaucratic obstacles. Factors like exorbitant court fees, unfair time constraints, restricted legal aid, or the inability of domestic courts to apply international human rights law due to unincorporated treaties pose significant challenges, a reality observed in Scotland’s legal landscape. 

I was nominated by the University of Edinburgh’s School of Law for a Work-based Placement, in lieu of a traditional dissertation, to explore access to justice in collaboration with the Human Rights Consortium Scotland. This immersive experience delved deep into Scotland’s legal dynamics, emphasizing the complex relationship between the Scottish Government and the UK’s central Government, the limitations surrounding international human rights law within domestic contexts, and, most crucially, the barriers individuals encounter daily while accessing justice. At this pivotal juncture, the Scottish Government faces an opportunity—considering the incorporation of core human rights treaties. This step could empower the people of Scotland to assert their rights fully, especially in cases concerning economic, social, and cultural rights, thereby reinforcing the right to an effective remedy. 

My professional background in Sweden’s public sector and multiple publications on the topic of international criminal justice align closely with the insights gained during this program. In short, the necessity of the right to an effective remedy is as fundamental as core human rights such as the right to not be arbitrarily detained or the right not to be discriminated against. It serves as the linchpin ensuring the practical applicability of human rights, tearing down barriers for victims of abuses, and transforming the abstract as well as aspirational content of human rights treaties into tangible, actionable rights.  

The evolution of human rights and the ongoing quest for meaningful protection remain in constant flux. National contexts present diverse challenges at different stages of advocacy. Yet, this diversity underscores the immutable truth—human rights efforts must never stagnate. Despite past progress, the call to fortify human rights and advocacy remains unyielding. In conclusion, the right to an effective remedy is not merely a legal doctrine; it is a shield for the oppressed, a beacon guiding justice, and a cornerstone of a society built on fairness and equality. Scotland’s stride toward incorporating core human rights treaties could mark a transformative leap toward equitable justice. It’s a testament to the evolving landscape of human rights—an evolving journey where stagnation finds no room. The pursuit of justice and the fortification of human rights remain perpetual endeavours, resonating with the essence of Article 8—never static, always advancing. 

 

As part of the GJA UDHR@75 celebration, we invited present and past students to contribute their personal reflections on the relevance of the UDHR today. This blog is by Alexander Pedersen, who graduated from the LLM in Human Rights in November 2023.

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UDHR@75: Recognition Before the Law

Human rights, UDHR

Photo credit: Priscilla Du Preez

This blog forms part of a series celebrating the 75th anniversary of the Universal Declaration of Human Rights (UDHR). Recognising the numerous conflicts and the daily breaches of human rights taking place across the globe, this series aims to highlight both the challenges and the opportunities to respect, protect and fulfil the human rights elaborated in the UDHR.

 

 

 

Recognition Before the Law 

Article 6 of the UDHR

‘Everyone has the right to recognition everywhere as a person before the law.’

Article 6 is beautiful in its simplicity and profoundly important. It underpins all other rights within the UDHR. It is premised upon two interconnected ideas, that a person retains their humanity and the protection of human rights regardless of where they are on our planet, transcending borders; and that everyone is entitled to recognition as a person before the law.

A person has human rights, no matter where they are. Whether you are a ‘tourist, a student, a refugee or an immigrant,’ Article 6 brooks no distinctions upon the basis of nationality, citizenship or statelessness. Where human rights are premised upon nationality or citizenship, they are often denied to entire groups of people due to ethnicity and religion, such as the Rohingya in Myanmar. Statelessness becomes an unwanted gift of disenfranchisement, passed down to the next generation.

Historically, a denial of personhood in the law has been the handmaiden perpetuating the slave trade, colonialism, and the annihilation of indigenous peoples and their way of life; utilised to exclude women, persons with disabilities or with mental health issues, children and victims of enforced disappearance such as those in Argentina, from the succour of the law.

Article 6 underpins all other rights within the UDHR. It is the foundation upon which a person can hold rights such as equality within marriage (Article 16), own and dispose of property (Article 17), have their privacy and bodily integrity respected (Article 12) and rely upon their rights and seek redress when they are violated (Article 8). A denial of personhood before the law, means that a person no longer has rights, but is dependent upon charity, a state of vulnerability and likely servitude.

As a human rights lawyer, having represented people, who the law has historically denied personhood to – women, children, persons with physical disabilities and mental health issues; this is an article of faith for me.

 

As part of the GJA UDHR@75 celebration, we invited present and past students to contribute their personal reflections on the relevance of the UDHR today. This blog is by Smita Shah. Smita is a PhD researcher at the University of Edinburgh, examining how child fair trial rights are implemented by military courts. She has practised as family law and international human rights law barrister at Garden Court Chambers, UK.

[1] Article 16 ICCPR, Article 15(2) CEDAW, Article 24 of Convention on Migrant workers, Article 12 on Convention of Rights of persons with disabilities, and Article 5 of African Charter, linked to slavery.

[2] Shah, S ‘The Legal Status of Intersex Persons in India and the Decision of the Supreme Court of India’  in (Eds) Jens M. Scherpe, Anatol Dutta, Tobias Helms The Legal Status of Intersex Persons, (Intersentia 2018)

 

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UDHR@75: Dignity Brings About Change

Crime and Criminal Law, Global Justice Academy, Human Dignity, Human rights, incarceration, Punishment, UDHR

This blog forms part of a series celebrating the 75th anniversary of the Universal Declaration of Human Rights (UDHR). Recognising the numerous conflicts and the daily breaches of human rights taking place across the globe, this series aims to highlight both the challenges and the opportunities to respect, protect and fulfil the human rights elaborated in the UDHR.

 

 

 

Dignity Brings about Change 

Article 1 of the UDHR 

‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.’ 

When I was a prisoner at 19 in Taiwan, I slept on the floor of my cell between two other men. We did not have running water and so filled buckets to use for cleaning and washing. Twice a week we were allowed 20 minutes of exercise. We had no rights which I was aware of, but I felt deeply that this was not how people should be treated and convinced it would not reduce reoffending.  

I was eventually transferred to prison in the United Kingdom which had its own challenges. Prisoners would queue at a shuttered window clutching a stinking prison jumper or wet pair of joggers to trade for a fresh one, only to be told there weren’t enough to go around. During the Beast from the East, I piled everything I had around me, including a damp towel, so I wouldn’t freeze to death as there weren’t enough blankets. Days would sometimes pass without being let out of our cells, and when we were, we had to choose between a shower, posting important forms, or exercise. Grime and slime coated the showers, with only the foolhardy or unfortunate braving them barefoot. Dignity was nowhere to be found.

I reached an open prison and was elected by my fellow prisoners to lead the Prison Council. I was determined to act with reason and conscience to change the injustices which had so grated on me – and to discover new injustices and fight those also. Previously the Council had been viewed as self-serving, but I endeavored to change that, and proceed in the spirit of brotherhood.  

Alongside my co-leader, we set up targeted forums to identify issues affecting prisoners. Black, Asian, and minority ethnic offenders felt they were being overlooked for jobs within the prison. We drafted, negotiated, and implemented a new employment policy which ensured that all jobs were properly advertised and interviewed for. Prisoners complained of swarms of rats, lack of heating in winter, and broken showers. We liaised with the works department and put-up posters informing people of how to report such issues, which resulted in faster fixes. We held regular meetings with senior management, sat on the prison equalities board, and lobbied for better access to work and education. Essential forms for day or overnight release were overcomplicated, creating barriers to rehabilitation for those offenders with poor literacy. We leveraged the goodwill we had built up with management and were permitted to rewrite the forms ourselves to be far more accessible. The improvements I secured made the prison safer, more effective, and not by coincidence – more dignified.  

Despite what some in Government would have us believe, we should not be meeting demand for prisons, but reducing it. When we take a person’s freedom that they were born into, we must not rob them of their dignity also. For it is dignity which inspires hope, and hope which inspires change. 

 

As part of the GJA UDHR@75 celebration, we invited present and past students to contribute their personal reflections on the relevance of the UDHR today. This blog is by Chris Walters. Chris is a law student and Longford Trust scholar.

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The Ruth Adler Human Rights Lecture 2023 – Ms Mama Fatima Singhateh

Child participation, Children's Rights, Human rights, Incorporation, International Law, Sale and sexual exploitation, Scotland, Sexual Violence, UK, UNCRC

 

On 14 March 2023, the Global Justice Academy hosted the Ruth Adler Human Rights Lecture by  Ms Mama Fatima Singhateh, the UN Special Rapporteur on the Sale and Sexual Exploitation of Children. Focussed on the importance of child participation, she talked about her functions as Special Rapporteur, the human rights law regulating the principle of participation, the importance of applying this principle and the challenges and opportunities it faces. The connection between Ms Singhateh’s work as Special Rapporteur and focus on children’s participation is highly relevant here in Scotland in light of the role of child participation envisioned in the pending UNCRC Incorporation legislation and the Committee on the Rights of the Child’s most recent Concluding Observations on the UK’s implementation of the UNCRC.Ms Mama Fatima Singhateh is being presented by Dr Kasey McCall-Smith, Director of the GJA.

The Special Rapporteur began by explaining her functions: In annual reports to the UN Human Rights Council and UN General Assembly on thematic studies, she addresses thematic issues such as the sexual exploitation of children online, sexual exploitation of children in travel and tourism, including in the context of major sports events; the sale and sexual exploitation of children through prostitution and child trafficking; and sale of children for illegal adoption, transfer of organs, child marriage and forced labour. Furthermore, she analyses the root causes of the sale and sexual exploitation of children, identifies new patterns of the phenomena, exchanges good practices to combat this scourge, promote measures to prevent it, and make recommendations for the rehabilitation of child victims and survivors of sale and sexual exploitation, primarily targeted towards Governments, UN bodies, the business sector and non-governmental organisations. In addition to the annual reports, the Special Rapporteur undertakes country visits, sends out communications to States and other stakeholders on individual cases of reported violations and concerns of a broader nature, engages in awareness-raising and advocacy to promote and protect children’s rights, provides advice for technical cooperation, and contributes to the development of international human rights standard. In exercising these functions, the Special Rapporteur prioritises access to child-friendly spaces. Furthermore, she dialogues with children and hears their thoughts on the issues her mandate addresses.

Then, the Special Rapporteur turned to the issue of child participation and the human rights law regulating the topic. Children’s participation is a principle emanating from Article 12 of the UNCRC on the right to be heard. Even though the UNCRC does not expressly use the term’ child participation’, she affirmed that ‘the term has evolved and is now widely used to describe ongoing processes, which include information-sharing and dialogue between children and adults based on mutual respect, and in which children can learn how their views and those of adults are taken into account and shape the outcome of such processes.’  The Special Rapporteur also referred to the UNCRC, in general terms, as the most widely ratified human rights treaty in history. She recognised that children’s lives had been transformed by the UNCRC but affirmed that ‘there is, however, more work to be done to better promote and protect the rights of all children’. Finally, she made a particular reference to the UNCRC Incorporation (Scotland) Bill: While celebrating Scotland’s bold step in fully incorporating the UNCRC into Scottish legislation, she noted that the Scottish government must ensure that it follows through by reintroducing revised legislation so that effective implementation can begin.

When referring to the importance and application of child participation, the Special Rapporteur reminded the audience of the extent of article 12 of the UNCRC: ‘Children have a right to participate in any decision-making process affecting them as well as influence decisions taken on their behalf’. She affirmed that participation helps children develop confidence in their worldviews and value. Additionally, she recalled practical approaches that have created positive changes in ways of working with children, such as using child-friendly spaces and forums and including them in public policy development and monitoring.

End FGM

Scottish Women’s Right Centre

A concrete example helped the audience to clearly understand Ms. Singhateh’s argument. The case was about role that children participation played in work carried out by an NGO against female genital mutilation (FGM). She explained that this secret practice was part of an initiation rite in a particular country. From focus groups with girls between 12 to 18 years old, the NGO learned about FMG and the rejection and embarrassment that it caused among them. With the active involvement of children, the NGO proposed restructuring the rite towards an ‘initiation without mutilation’. This turned into a successful campaign that produced a change in the places where it intervened and that was replicated in other communities. The lesson the Special Rapporteur takes from this example is ‘that deliberate and strategic actions to facilitate and create a conducive environment for children to participate in decisions about their lives can make a great difference in how the world perceives, protect, and promote their rights’.

In the last part of her lecture, the Special Rapporteur addressed the challenges and opportunities to child participation. By taking the audience through real-life stories she learned from survivors during her country visits, she highlighted the importance of raising awareness of the different manifestations of sexual abuse and sexual exploitation. She also referred to the government’s responsibility to design child protection policies that provide education and awareness raising, as well as ensure children have access to professionals where they can speak freely on any issue happening to them at home. In addition, she highlighted the need to provide professionals with skills and tools to effectively communicate with children, especially victims and survivors who have suffered abuse. Ms Mama Fatima Singhateh with Dr Kasey McCall-Smith and students from human rights the legal clinic

The Special Rapporteur also recommended involving children as trainers and facilitators of child participation and explained how they could participate at international-level gatherings designed for children and adults. Ms Singhateh concluded her lecture by ’emphasising the need to provide children with the opportunity to be heard, influence decision-making and achieve change’.

In line with the practical approach that Ms Singhateh gives to her mandate, she also accompanied the director of the GJA, Dr Kasey McCall-Smith, to a session of the human rights clinic. Students working on issues relating to the prohibition against torture and child rights budgeting were able to share their work with her and receive her questions and comments.

Ms Singhateh’s mandate as Special Rapporteur on the Sale and Sexual Exploitation of Children was extended for another three years. We look forward to reading more about her innovative efforts on enhancing children participation in her endeavours on promoting and advancing their human rights.

 

 

Valentina Rioseco Vallejos

This post was written by Valentina Rioseco Vallejos. Valentina is a Chilean lawyer who holds an LLM in Human Rights from the University of Edinburgh. She is currently studying a PhD in Law, focused on incorporating a human rights approach to irregular migration. Valentina is a Research Assistant for the Global Justice Academy.

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AHRI Statement on the Russian Aggression against Ukraine

Conflict, Eastern Europe, Human rights, ICCPR, International Law, Russian Federation, Security, Ukraine, UN

The Secretariat for the Association of Human Rights Institutes (AHRI), hosted by the Global Justice Academy (GJA) and Strathclyde Centre for the Study of Human Rights Law, along with the full AHRI Executive Committee, today published its statement on the Russian Federation’s violations of fundamental international law, including human rights law, and the danger it poses to the post-World War II peace and security architecture.

The Russian Federation’s invasion of sovereign Ukrainian territory is a clear violation of international law and endangers the post-World War II peace architecture that has prevailed over Europe these last seven decades.

The Russian Federation is bound by seven of the core UN human rights treaties as well as the European Convention on Human Rights. We recall the position of the Human Rights Committee that States parties of the International Covenant on Civil and Political Rights who are engaged in acts of aggression as defined in international law, resulting in deprivation of life, violate ipso facto the right to life as protected by Article 6 of the Covenant. Each step it takes in Ukraine negates its commitment to respect and protect the rights of civilians in Ukraine and those in Russia who are unable to safely voice their opposition to their government. This unprecedented use of force and blatant breach of the UN Charter, the Charter of Paris, and the Helsinki Final Act brings suffering and misery to Ukraine and its people.

As the largest global network of human rights research institutes, AHRI stands together with its colleagues, students and friends in the Ukraine and those in Russia who have been intimidated and forced to remain silent in the face of Russia’s acts of aggression.

Photo of protestors holding Ukraine flags

Photo by: Beth LaBerge

Read the full statement here: AHRI Statement on Russian Aggression against Ukraine

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Interpretive Convergence at the European Court of Human Rights: Strength in numbers or a cause for concern

Case Law, ECHR, Europe, Global Justice Academy, Human rights, International Law, Law and Legal, Uncategorized


On 25 January, the Global Justice Academy hosted its first event of the new year, ‘Interpretive Convergence at the European Court of Human Rights: Strength in numbers or a cause for concern?’. In this seminar, Dr Conall Mallory, Senior Lecturer at the University of Newcastle School of Law, presented his current research on the voting patterns of the judges within the European Court of Human Rights (ECtHR). In particular, his research scrutinizes judgments of the ECtHR that seem to often be unanimous with infrequent dissents. Drawing on extensive quantitative data analysis he furthermore explores potential wide-ranging implications on the authority of the court, the cohesion of Convention rights and the credibility of the judges.

It is widely acknowledged that the provisions of the European Convention on Human Rights (ECHR) are peppered with grey language that requires the judges to interpret the Convention’s specifications. The fact that the 17 grand chamber judges, deriving from various cultural, legal, educational, professional and linguistic backgrounds unanimously agree on the interpretation of highly contentious human rights provisions, motivated Dr Mallory to further investigate the judges’ convergence. In the two ECtHR judgments Banković v Belgium and Al-Skeini v United Kingdom which were both concerned with the extraterritorial application of human rights law, the Court in both cases voted unanimously. However, the second case substantially deviated from the principles set out in its previous judgment.

Analysing approximately 400 Grand Chamber judgments between 1998 and 2021, Dr Mallory considered each judge’s individual vote on individual issues. He found that almost every time there was coherence across the judges’ votes. The judges took differing stances in only 10% of the votes on individual questions on whether a Member State had violated an article of the Convention.

Image credit: ECHR

Scholars before Dr Mallory have examined the motivation and incentives behind judges’ decision-making process in the courtroom. These previous studies revealed that judges tend to vote strategically, whether for individual benefits, to embed personal ideologies in judgments, or to pursue broader goals serving stakeholders. However, Dr Mallory’s research is focused more on the general legal culture of the Court and the implications for the Court as a whole. He suggests that by predominantly voting unanimously the judges aim to seek sociological legitimacy to remain a credible force in the European human rights adjudication. Contrary to normative and legal legitimacy, sociological legitimacy is concerned with the external perception of the court. In order to secure its authoritative and influential status the court attempts to project legitimacy in a manner that is compatible with the objectives of stakeholders.

In international law, sociological legitimacy is characterized by judicial constraint, consistency, coherence, and fair and unbiased decision making. The convergence of the judges voting pattern in Dr Mallory’s data implies that the court’s strategy is to adhere to those standards through voting in agreement. Notably, Dr Mallory was also able to identify voting patterns regarding the affected context of the violation. Namely, the Court disagrees more when voting on potential violations of the right to privacy and freedom of expression.

Dr Mallory concluded his talk by addressing the question whether this interpretative convergence is a cause for concern. In his opinion, the findings are not as alarming as one might think at the first glance. However, the voting patterns may suggest a sense of group thinking in the courtroom which may lead judges to develop a personal aversion for dissenting. This should be considered seriously, as the Court’s apparent strategy in striving for sociological legitimacy through convergent voting may create cascade conformity – meaning that judges who would normally disagree abandon their conviction and follow suit with the other judges. Returning to the initial consideration of the divergent rulings in Banković v Belgium and Al-Skeini v United Kingdom, Dr Mallory observed that the main problem is the fact that the court, depending on the composition of judges, may deviate so fundamentally in its judgments that it will fail to offer reliability and consistency.

 

 

This post was written by Juliane Müller. Juliane is currently reading the LLM in International Law at the University of Edinburgh. She is from Germany, where she completed her LLM in Law at the University of Mannheim. Juliane is also an Ambassador for the Global Justice Academy.

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Free Speech Protection for ‘Public Watchdogs’ in the European Court of Human Rights

Eastern Europe, ECHR, Freedom of Expression, Global Justice Academy, Human rights, Hungary, Newspost

For the second Global Justice Academy event of the current academic semester, Dr Dimitrios Kagiaros, Assistant Professor in Public Law and Human Rights at Durham Law School, presented his current research exploring the fundamental principles of freedom of expression under Article 10 of the European Convention on Human Rights (ECHR). In particular, his work scrutinizes the meaning of the term ‘public watchdog’, which is a term applied to certain speakers (eg the press) who carry out the function of keeping the public informed on matters of public interest. The European Court of Human Rights offers such speakers added protection under the Article 10 framework.

Until recently, the courts identified only the press and NGO’s as those who would be eligible for this protected status, but after a 2016 Grand Chamber decision in Magyar Helsinki Bizottság v Hungary the status was further extended to academics, authors of public literature, bloggers and popular social media users. In this case, the claimant was an NGO who was denied official information from the state police and challenged this under Article 10 of the ECHR. Dr Kagiaros explained what this extension of watchdog status means for rights and duties attributed to not only speakers, but also to the public who benefits from access to information and the state in terms of its obligations towards these public watchdogs.

According to the Court’s case law on public watchdogs and the Magyar Helsinki Bizottság ruling, public watchdog status creates a negative obligation on the state to refrain from taking any action which would obstruct the watchdog of carrying out its function. It also includes positive obligations on the state to adopt a specific legal framework to protect public watchdogs and also to release official information to them, under circumstances, following a request . The decision also clarified that Article 10 places duties on public watchdogs to act responsibly when disseminating information which could be in the public interest. Increasingly, these duties are attributed to actors such as bloggers and popular social media users which Kagiaros argues that in today’s social media culture is too broad of a concept to understand who exactly would be eligible for public watchdog protection and also who, as rights-bearers, should be obliged to fulfil certain duties when exercising their right to free speech. Kagiaros says these legal obligations and broadly identified eligible actors must be better specified. To that end, he suggests that rather than limiting the protection offered to public watchdogs to specific groups (eg, academics, journalists, NGOs) the Court should carry out a functional test when presented with a case relating to speakers disseminating information in the public interest.

This research is particularly relevant within today’s social media climate and the frequent use of mobile phones to capture or record instances of everyday state injustice, like police brutality. Social media platforms have become an accessible space for receiving information and imparting information, which means determining who is a mere ‘ordinary speaker’ or a ‘public watchdog’ is becoming more complex. Along with this complexity is the matter of prioritising speech and how and what the courts consider information which is of public concern. Kagiaros emphasises the importance of protecting the act of imparting information which is of public interest as this is a prerequisite for a well-functioning democracy. These considerations become even more urgent in the context of transparency when dealing with matters such as climate change or interference with elections.

Kagiaros’ lecture points to the important role played by certain public and private actors to draw attention to public wrongdoings, particularly of public officials, and the need to protect those who come forward with this information that is important to enable meaningful democratic participation. As explained by the court, Article 10 of the ECHR is the bedrock of democracy. So, in order to protect the person’s right to freedom of speech and the public’s right to receive information, we must ensure an effective free speech legal framework to protect those who impart information of general concern.

 

 

Photo of Judi MartinThis news item was written by Judi Martin. Judi is currently reading the LLM in Human Rights at the University of Edinburgh. She is from Ireland where she completed her BA in History at Trinity College Dublin.

 

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Reflections on UN Special Procedures

Asia, Blog, Global Justice Academy, Human rights, UN

On 4 November 2021, the Global Justice Academy together with the Edinburgh Centre for Global and International Law hosted their first in-person seminar for the 2021-22 academic year at Edinburgh Law School. Professor Rhona K.M. Smith, who served two three-year terms as UN Special Rapporteur on Human Rights and Cambodia, engaged the audience with her reflections on UN Special Procedures. She is a Professor of International Human Rights and was head of Newcastle Law School at Newcastle University from 2016 to 2020.

Photo of Rhona Smith

UN human rights envoy Rhona Smith holds a press conference at the conclusion of her mission to the Kingdom yesterday. KT/Khem Sovannara

To ground her reflections, she opened with an overview on the Special Procedures of the Human Rights Council, and the distinctions between country and thematic mandates. She took the audience through the procedures for appointing the mandate holders and gave insight into gender and geographical balances and imbalances. Many in the audience were shocked to hear about the amount of time a UN Special Rapporteur dedicates to their mandate and particularly in light of the fact it is an unpaid position. Prof Smith critically reflected on the reasons given by the UN Human Rights Council for maintaining the unremunerated status of these roles. The Human Rights Council asserts that this gives independence to the experts, however, Prof Smith recognized that, in reality, not all experts or potential experts could afford this privilege. Ultimately, she said ‘you need money to live’. This subject stimulated a lively discussion later in the session.

The core of Prof Smith’s discussion focused on her behind-the-scenes experiences as a Special Rapporteur. She elaborated the three main roles of UN Special Procedures: advising, monitoring and reporting. Each of these roles serves a specific purpose in relation to fulfilling the mandate and each is enabled or limited in direct relation to the resources allocated to facilitate the work.

Photo of Cambodian Child

The Office of the United Nations High Commissioner for Human Rights (OHCHR) plays a fundamental role is supporting the UN Special Procedures mandates. Prior to the Covid-19 outbreak, Prof Smith travelled on missions to Cambodia twice a year and reinforced the importance of communicating with the country through the OHCHR. Security measures were of upmost importance as every UN Special Procedure faces common death threats and other harassment. During missions, Prof Smith was able to gather information on the ground and meet with high-level government actors in order to develop a multilayered picture of human rights in Cambodia. She reflected on how she could make the most out of these visits because she knew the country already since she had lived there before being appointed to the UN mandate. During these meetings, she highlighted situations that would entail human rights violations, and suggested concrete actions that State actors could adopt to protect, respect and fulfil the human rights of people living in Cambodia.

In the end, Prof Smith reinforced that being a UN Special Procedure was both ‘a huge honour and an amazing challenge’. On the one side, she was able to deepen her knowledge of human rights in practice and steer the improvement of the human rights for Cambodians. On the other, she faced the challenge of becoming a public figure in Cambodia and the risks associated with that publicity.

In closing the event, Prof Smith narrated a day in the shoes of a UN Special Procedure during a mission and reflected on how her experience contributed to her human rights teaching. Her frankness and honesty helped the audience understand what it means to be a UN Special Rapporteur. While there are clearly challenges, the rewards in assuming such a role within the UN, she demonstrated the practical importance that UN Special Procedures play in advancing the global protection, promotion and respect for human rights.

 

 

This post was written by Valentina Rioseco Vallejos. Valentina is a Chilean lawyer who holds an LLM in Human Rights from the University of Edinburgh. She is currently studying a PhD in Law, focused on incorporating a human rights approach to irregular migration. Valentina is a Research Assistant for the Global Justice Academy.

 

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#Act2EndFGM – The relationship between international human rights law and female genital mutilation (FGM)

Africa, Asia, Gender, Health, Middle East, SDG, South America, UNCEDAW, UNCRC, Women

 

This is the fourth blog in a series written by LLM students on the Human (In)Security course at Edinburgh Law School. This series celebrates the top five blogs selected in a class competition. This blog is by Evelyn Strutynski. Evelyn is  currently reading the LLM in International Law at the University of Edinburgh. She also obtained a Bachelor of Arts degree in Political Science and Law at the Ludwig-Maximilians-Universität München in Germany.

#Act2EndFGM – The relationship between international human rights law and female genital mutilation (FGM)

Over the last decades, much has been achieved to reduce the prevalence of FGM around the world. In 2015, the UN announced new development goals, including the initiative to completely eliminate FGM by 2030. Nonetheless, the procedure still is a highly salient issue. In 2021, more than four million girls are at risk of undergoing FGM and, overall, approximately 200 million girls and women alive today have been subjected to the practice in 31 countries. This blog post will examine the relationship between FGM and international human rights law as well as the global efforts to eliminate FGM.

What is female genital mutilation?

The WHO defines FGM as “all procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons”. The procedure is predominantly carried out by traditional circumcisers who use scissors, razor blades or broken glass. Increasingly, trained health care providers perform FGM (‘medicalisation’). The WHO has identified four different types of FGM; one of them is called infibulation which narrows the vaginal opening with a covering seal by, for instance, repositioning the labia minora or stitching.

FGM affects girls and women worldwide, the majority of them are cut before their 15th birthday. It is predominantly practised in Africa; furthermore, it occurs in countries in the Middle East and Asia, and in certain communities in South America. The practice is nearly universal in Somalia, Guinea and Djibouti where more than 90% of girls and women have undergone FGM. The practice is cultural rather than religious, since no religion requires it; nonetheless, religion is often used as a justification. Other reasons for FGM are, inter alia, psychosexual, for example, to control women’s sexuality, or sociological/cultural, to guide a girl into womanhood. FGM causes severe health issues; they range from infections, mental health or menstrual problems to the need for surgeries or even death.

FGM photo

Photo by UNFPA/George Koranteng

The relationship between FGM and international human rights law

FGM “violates a number of recognized human rights protected in international and regional instruments”[1]. Kandala and Komba identified five rights that are breached by the practice:[2]

  1. Child rights – Most girls and women undergo FGM before their 15th birthday. Art. 16 of the Convention on the Rights of the Child, for instance, prohibits any interference with the privacy of children; furthermore, Art. 24 (3) urges states to adopt “measures with a view to abolishing traditional practices prejudicial to the health of children”.
  2. Right to health – FGM causes serious health issues, which breaches, inter alia, Art. 12 (1) of the International Covenant on Economic, Social and Cultural Rights. The provision guarantees the right to the highest attainable standard of physical and mental health.
  3. Right of women to be free from discrimination – According to an Interagency Statement, the procedure is a “manifestation of gender inequality that is deeply entrenched in social, economic and political structures” and it “represents society’s control over women”. Hence, Art. 1 of the Convention for the Elimination of all Forms of Discrimination Against Women is applicable, as well as Art. 2, which urges states to fight discrimination.
  4. Right to life and physical integrity – FGM violates Art. 9 (1) of the International Covenant on Civil and Political Rights (ICCPR), which guarantees the right to liberty and security of a person.
  5. Right to be free from torture – FGM might also amount to torture, which is prohibited by, inter alia, Art. 7 of the ICCPR. The Convention Against Torture has a high threshold for torture; this fact might be problematic, as not all FGM procedures legally qualify as torture.[3]

Supporters of FGM point out that the right to culture, religious freedom and the rights of minorities justify the practice.[4] However, the breaches of the aforementioned human rights are more severe, since FGM undeniably harms the bodily integrity of girls and women and intensifies gender inequality. Furthermore, the conflicting rights are not absolute and may be limited[5] in order to protect girls and women. Generally, there is a lack of jurisprudence regarding FGM and human rights[6]; many cases, such as M.N.N v. Denmark or M.J.S. v. The Netherlands, focus on the risk of undergoing FGM in the event of a deportation.

International response to FGM

A range of international organisations and institutions takes part in the effort to eliminate FGM. For instance, the UN General Assembly adopted Resolution 67/146, which emphasises that FGM is an “irreversible abuse that impacts negatively on the human rights of women and girls”. The UN Secretary-General published a report, which demands that states should, inter alia, implement legislation that criminalises the procedure. Furthermore, the Committee on the Elimination of Discrimination against Women published General Recommendations Nos. 14, 19, 24 with regard to FGM. In 2020, the UN Human Right Council adopted Resolution 44/L.20, which “urges States to condemn all harmful practices that affect women and girls, in particular female genital mutilation”.

#Act2EndFGM logo

UN Photo

Are human rights enough?

The universal recognition that FGM undoubtedly breaches international human rights law is an important step in order to eliminate the practice. Because of human rights, FGM is now part of a broader social justice agenda and of an increasing effort to hold governments accountable[7]; additionally, FGM is “viewed through a prism that recognizes the complex relationship between discrimination against women, violence, health and the rights of the girl child”[8].

However, this recognition alone is not sufficient, the law must be implemented and enforced on a national level. Furthermore, since FGM is such a deeply entrenched practice, a deep-seated social change within each community is needed; the Interagency Statement suggests initiatives like ‘empowering’ education, public dialogue or using alternative rituals. Overall, the efforts so far have been at least partly successful, as the prevalence of FGM declines steadily; however, the progress needs to be ten times faster in order to reach the 2030 goal. Population growth and COVID-19 are further impediments to meeting the target.

 

[1] Anika Rahman and Nahid Toubia, Female Genital Mutilation: A Guide to Laws and Policies Worldwide (Zed Books Ltd, 2000), 20.

[2] Ngianga-Bakwin Kandala and Paul Nzinga Komba, Female Genital Mutilation Around The World: Analysis of Medial Aspects, Law and Practice (Springer International Publishing AG, 2018), 190-192.

[3] Ngianga-Bakwin Kandala and Paul Nzinga Komba, Female Genital Mutilation Around The World: Analysis of Medial Aspects, Law and Practice (Springer International Publishing AG, 2018), 192.

[4] Anika Rahman and Nahid Toubia, Female Genital Mutilation: A Guide to Laws and Policies Worldwide (Zed Books Ltd, 2000), 31.

[5] Ibid., 38.

[6] Ibid., 20.

[7] Anika Rahman and Nahid Toubia, Female Genital Mutilation: A Guide to Laws and Policies Worldwide (Zed Books Ltd, 2000), 39.

[8] Ibid.

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