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Human Rights

Selected e-articles

Abstract: Professor Theo van Boven sent this piece to the Netherlands Quarterly of Human Rights as part of his reflections on the 75 years anniversary of the UDHR. Professor van Boven is the former Director of the UN Human Rights Secretariat between 1977 and 1982, about which the film “The Subversives” was made in 2019. He was a Dutch representative on the UN Commission on Human Rights, an expert member of the Sub-Commission on the Prevention of Discrimination and Protection of Minorities, an expert Member on the Committee on the Elimination of Racial Discrimination, the UN Special Rapporteur against Torture, Consultant at the World Council of Churches and Professor of Human Rights at Maastricht University from 1982 to 1999.

Abstract: This article, drawing on Third World Approaches to International Law (TWAIL) and embracing the decentring agenda in European Union (EU) external relations, discusses the substance of human rights promotion in the negotiations of the Samoa Agreement. It documents how the EU has concentrated on civil and political rights, whereas Africa has advanced an innovative approach to economic, social and cultural rights underpinned by the right to development. More importantly, going beyond the ‘heaven–hell binary’, which draws neat lines between the good North and the bad South, and the ‘one‐way traffic paradigm’, which claims that human rights flow from the North to the South, it shows that the human rights corpus may be slowly evolving from its paradigmatic western orientation towards a truly universal project: the EU and Africa have started recognising each other as being holders of diverse yet legitimate perspectives on human rights.

Abstract: International courts face growing contestations to their authority. Scholars have conceptualized the forms and grounds of such resistance as well as the response of international courts. Much empirical research has focused on regional courts with human rights mandates. Yet, in focusing on overt resistance, not differentiating between authoritarian and democratic regimes, and depicting courts at the receiving end of resistance, scholarship does not account for discrete forms of resistance tolerated and enabled by courts. In addition, studies on the European Court of Human Rights (ECtHR) base their analyses exclusively on judgments, which constitute a mere 9 per cent of this Court's jurisprudence. This methodological bias, combined with a time frame limited to the post-2010s when the ECtHR has faced public contestations to its authority, have led to inaccurate and incomplete conclusions regarding the Strasbourg Court's response to backlash and illiberalism. This article calls for a goal-orientated conceptualization of resistance and a methodology that analyses the ECtHR's non-judgment jurisprudence in its entirety to reach accurate conclusions on its response to authoritarianism. Based on an in-depth and contextual analysis of the ECtHR-Turkey case, the article puts forth empirically grounded insights on authoritarian resistance and judicial complicity. It argues that authoritarian regimes seek to lessen international courts' oversight of their policies, not to undermine the authority of these courts as such, and that international courts are not always resilient 'vis-a-vis' authoritarian resistance but can also be complicit with it. The forms of authoritarian resistance and judicial response depend on the institutional set-up of the human rights regime in question as well as the ways in which international courts exercise their review powers. The two phenomena influence and reinforce each other, resulting in the simultaneous or consecutive occurrence of various forms of authoritarian resistance and judicial response depending on the particular political context in which they interact.

Abstract: How do we explain ASEAN – a non-western, traditionally ‘weak’ actor – and the degree to which it has successfully co-opted the EU into accepting its approach to human rights? This article considers the question of human rights in the ASEAN–EU relationship. It does so by reappraising the literature on constructivism and comparative regionalism, embracing the move beyond norm diffusion and Europe to norm contestation and local actors, namely ASEAN. Building on the literature of contestation, it operationalises Mattern's model of Representational Force to analyse the case study of the ASEAN–EU relationship from the 1990s to the establishment of AICHR in 2009 and beyond where we can see contestation in action. Interestingly, through the contestation over the ‘promotion’ and ‘protection’ of human rights, there is significant scope to see how it is ASEAN that has largely co-opted the EU into supporting a uniquely ‘ASEAN’ approach to human rights in Southeast Asia.

Abstract: A study of the EU's relations with the Organisation of African, Caribbean and Pacific States reveals that the EU wavers between supranational human rights commitments and insistence on resolving disputes through its own officials. This creates ambiguities and legitimation problems for the EU. Abstract The European Union has been characterized as a vanguard of a rights-based liberal international order. A prime example is making all cooperation agreements with third states conditioned on respect for human rights. But the EU's approach is contested on grounds of inconsistency and power imbalance. This article contributes to a more nuanced understanding of the relationship between authoritative human rights procedures and contestations of the liberal order. In doing so, the article brings to the fore ambiguities that are often glossed over in the literature related to representation in supranational political arrangements. Through a longitudinal case-study of the centrepiece of the EU's external human rights policy, the human rights clause, the article shows that the EU vacillates between supranational and intergovernmental political arrangements. It insists on a human rights clause that allows for sanctioning of non-compliance, but that also maintains core features of intergovernmental decision-making where executives in the EU and partner governments maintain the authority to initiate and settle disputes on human rights. The result is a half-hearted move towards a rights-based liberal order that neither fully respects nation-states' sovereignty nor fully allows for an impartial settlement of human rights disputes.

Abstract: Promoting respect for human rights and providing humanitarian assistance exemplify one of the core shared values and objectives of the EU-UN agenda, deeply rooted in the premise that universal values of peace, equal rights, freedom, and human dignity may be effectively defended through efficient multilateralism only. The paper aims to offer a deep analysis of the legal framework underpinning the EU-UN partnership and to underscore the critical intersections of the EU and UN systems of addressing human rights protection and unimpeded access to humanitarian assistance. The research builds on Article 21 of the Treaty on European Union, which sets the basis for the EU´s action on the international scene in line with the principles of the Charter of the UN and international law, including the promotion of multilateral solutions to common issues in the area of human rights and humanitarian assistance. Particular emphasis is put on the EU priorities for the UN, adopted annually by the Council´s conclusions guiding the EU´s yearly work adapted to the UN´s agenda and global affairs. Alongside the examination of the current positive law and corresponding scholarly literature, the paper also provides insight into the best practices of the EU-UN natural partnership on the ground, such as the early recovery of war-affected communities in Ukraine through the UN Development Programme (UNDP). Thus, the paper combines doctrinal legal research with the socio-legal approach in outlining the specificities of the EU-UN multi-layered cooperation with respect to human rights protection and humanitarian assistance.

Abstract: This article examines the EU's role as a global human rights actor through the example of its activity in the UN Human Rights Council (HRC). Whilst the EU has aimed to become an effective actor in the UN overall, the key focus is the extent to which the EU can be considered an effective actor in the HRC. Here, EU action is interpreted as the combined contribution of the EU and its Member States, thereby providing a comprehensive picture of EU engagement. The EU's effectiveness is evaluated by studying its input, engagement in negotiations and goal achievement. Furthermore, perceptions of effectiveness, based on interviews, are incorporated into the analysis. The article claims that the EU can be considered an effective actor in terms of its input and achieved outcomes. It has also improved its effectiveness in negotiations. However, EU effectiveness remains conditioned by the political context of the HRC.

Abstract: Corporate Social Responsibility ("CSR") is at the cutting edge of changing industrial practices. As such, it is at the forefront of the transition to sustainability. CSR can be both a national or regional policy and an organizational policy. The European Union ("EU") is the leading jurisdiction in terms of CSR and of a broader society-wide sustainability policy. With its immense market and political power, the EU is able to export its CSR policy priorities. Applying its policies extraterritorially through the inclusion of Trade and Sustainable Development ("TSD") provisions in its Free Trade Agreements ("FTAs") is an exercise of that power and a significant step in achieving global industrial sustainability. This Article argues that the EU requires certain specific institutional reforms to achieve its TSD objectives. Using a theory of coherent regulatory systems, empirical evidence and argumentation, this Article proposes a series of reforms that reflect the underlying normative change in FTAs from exclusively trade and finance focused agreements to those which include social and environmental objectives. This change requires other modifications in the regulatory system, as for example, inclusion of parties beyond trade and finance specialists, parties and institutions such as civil and business groups, domestic courts built on broadly accepted and well understood standards. We argue that the reform of FTAs with more robust private party rights, private standards and better use of the domestic courts would improve socially and environmentally responsible business practices in the EU and around the world with a positive impact on sustainability.

Abstract: Three years ago, the Oversight Board commenced its work ‘to make principled, independent, and binding decisions … based on respect for freedom of expression and human rights’ for Meta’s platforms Facebook and Instagram. From the very beginning, the vocabulary employed to talk about the Oversight Board was laden with court metaphors. Wary that these metaphors have stirred legal analysis into a specific direction, we move away from trying to fit the Oversight Board within established institutional categories. Instead, we shift the focus from institutions to interactions – that is, to the ‘in-between’. Rather than continuing to debate what the Oversight Board is, we focus on what the Oversight Board does. Our study maps different stages and modes of interaction between Meta, the Oversight Board and international human rights institutions. We show how different actors carefully craft entry points for constructing their respective semantic authority and what kind of strategies they pursue to contest semantic authority of others. Thereby, we uncover the first traces of emerging conversations between Meta, the Oversight Board and international human rights institutions and highlight who is included and excluded and who refuses to participate or to respond. With our intervention, we intend to offer empirically grounded insights into the dynamics at play and paint a more detailed picture of the various roles that novel actors, such as Meta and the Oversight Board, are beginning to assume in the protection of international human rights online.

Abstract: The European Union has a twofold system for human rights defenders within borders and in the international world. The European area of freedom, security, and justice applies for the system of human rights defenders having judiciary guarantees such as the CJEU, the judiciary of the EU, without a rapporteurship on human rights defenders. The Fundamental Rights Agency of the European Union is also concerned by the legal standards of protection for human rights defenders. In the international area, guided by the EU principles, the EU is a key stakeholder for the protection of human rights defenders through their external action service, focal points, and a consortium of NGOs to work in the field, to cope with the riskiest situations. The EU Guidelines are a key instrument for the external relations of the EU in a long-term basis to promote and protect human rights defenders while strengthening pluralism and democracy in the civic and political space. The new EU Plan of Action on democracy and human rights considers promoting and empowering human rights defenders a priority for these new years. Some constitutional trends are present under this EU twofold framework on human rights defenders.

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