Posner on the Twilight of Human Rights Law

Eric A. Posner (University of Chicago Law School) announced on his blogdownload that Oxford University Press will be this November publishing his new book on “The Twilight of Human Rights Law”. Here is its thought-provoking abstract :

Countries solemnly intone their commitment to human rights, and they ratify endless international treaties and conventions designed to signal that commitment. At the same time, there has been no marked decrease in human rights violations, even as the language of human rights has become the dominant mode of international moral criticism. Well-known violators like Libya, Saudi Arabia, and Sudan have sat on the U.N. Council on Human Rights. But it’s not just the usual suspects that flagrantly disregard the treaties. Brazil pursues extrajudicial killings. South Africa employs violence against protestors. India tolerate child labor and slavery. The United States tortures.

In The Twilight of Human Rights Law--the newest addition to Oxford’s highly acclaimed Inalienable Rights series edited by Geoffrey Stone–the eminent legal scholar Eric A. Posner argues that purposefully unenforceable human rights treaties are at the heart of the world’s failure to address human rights violations. Because countries fundamentally disagree about what the public good requires and how governments should allocate limited resources in order to advance it, they have established a regime that gives them maximum flexibility–paradoxically characterized by a huge number of vague human rights that encompass nearly all human activity, along with weak enforcement machinery that churns out new rights but cannot enforce any of them. Posner looks to the foreign aid model instead, contending that we should judge compliance by comprehensive, concrete metrics like poverty reduction, instead of relying on ambiguous, weak, and easily manipulated checklists of specific rights.

With a powerful thesis, a concise overview of the major developments in international human rights law, and discussions of recent international human rights-related controversies, The Twilight of Human Rights Law is an indispensable contribution to this important area of international law from a leading scholar in the field.

Problem-Ridden Nomination Process for Judge on behalf of Slovenia at the European Court of Human Rights

We have already reported that the mandate of the incumbent judge at the European Court of Human Rights on behalf of Slovenia expires on 31 October 2015. The Ministry of Justice of the Republic of Slovenia has therefore this May started selection procedure for nomination of three candidates to the Parliamentary Assembly of the Council of Europe by publishing call for applications. Seven candidates applied, among them seven men and one woman. The Judicial Council of the Republic of Slovenia prepared a ranking of candidates and proposed to President of Slovenia to send the names of three highest-ranking candidates to the Parliament, which has to vote on the list of three candidates in order to be sent to the Parliamentary Assembly of the Council of Europe. However, Mr Pahor, the incumbent President of Republic of Slovenia, last week refused to send the list of three high ranking candidates to the Parliament and requested that the Ministry of Justice repeats the call for applications. It is not entirely clear why Mr Pahor rejected the list approved by the Judicial Council, but it appears that the merits of the candidates did not impress him. Surprisingly, the Ministry of Justice at this point does not plan to repeat the call for application.  It seems we are witnessing situation so often seen in the Central and Eastern European countries where the merits of the candidates play only side role in the nomination process and where the nomination of the candidates to the European Court of Human Rights comes down to brutal power politics. Stay tuned for future developments on this issue.

New publications

Some interesting new articles worth reading on the European Court of Human Rights have been published in past couple of months. Here are three of them :

  • Lourdes Peroni, Religion and culture in the discourse of the European Court of Human Rights: the risks of stereotyping and naturalising, International Journal of Law in Context, Volume 10, Issue 02, June 2014, pp 195-221. Here is the abstract :

This paper critically examines the ways in which the European Court of Human Rights represents applicants’ religious and cultural practices in its legal discourse. Borrowing tools from critical discourse analysis and incorporating insights from the anti-essentialist critique, the paper suggests that the Court has most problematically depicted the practices of Muslim women, Sikhs and Roma Gypsies. The analysis reveals that, by means of a reifying language, the Court oftentimes equates these groups’ practices with negative stereotypes or posits them as the group’s ‘paradigmatic’ practice / way of life. The thrust of the argument is that these sorts of representation are problematic because of the exclusionary and inegalitarian dangers they carry both for the applicants and for their groups. In negatively stereotyping applicants’ practices and in privileging certain group practices over others, these types of assessment underestimate what is at stake for the applicants and potentially exclude them from protection. Moreover, these types of reasoning risk sustaining hierarchies across and within groups. The paper concludes by sketching out an approach capable of mitigating stereotyping and essentialising risks.

  • María José Añón, The Antidiscrimination Principle and the Determination of Disadvantage, Dignitas – Slovene Journal of Human Rights, 2013, no. 59-60, pp 196-214. Here is the abstract :

This paper examines some of the limits of antidiscrimination law in its present form, focusing on the major trends that underlie it from the perspective of legislation and case law. It reflects on the traditional principles of interpretation and the impediments to incorporating standards offering both justification and explanation in the test of equality; standards that might detect the patterns or social structures of discrimination and identify individuals with greater accuracy. To this end, it proposes to further develop the debate on indirect discrimination and material equality through additional interpretative criteria that originate in categories such as structural discrimination and the intersectionality of discrimination.

  • Ed Bates, Analysing the Prisoner Voting Saga and the British Challenge to Strasbourg, Human Rights Law Review (2014)14 (3): 503-540. Here is the abstract :

This article examines the development of the prisoner voting saga concerning the UK and Strasbourg, setting it in the context of the strained relationship existing between the former and the latter in recent years. It examines and offers a critique of the relevant Strasbourg jurisprudence, commencing with the Grand Chamber judgment in Hirst v United Kingdom (No 2). It discusses the ‘brinkmanship’ that ensued between Strasbourg and the UK as regards the enforcement of that judgment, and how Strasbourg responded via a further Grand Chamber judgment (Scoppola v Italy (No 3)). The reaction to that judgment is contextualised by a detailed examination of why the relationship between the UK and Strasbourg has been a difficult one recently, at least from the former’s perspective. These issues are then reflected upon in a final section.

2014 Half-year ECtHR Statistics

The European Court of Human Rights has published provisional statistics for first six months of 2014. The numbers illustrate that applications allocated have decreased comparing to the first half of 2013. Similarly, also number of applications by a judgment or decision has decreased comparing to 2013. In the meantime, the press team of the Court has published an excellent Storify presentation of so far key 2014 cases.

Procedure for electing judges to the European Court of Human Rights

The Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe has published updated Information document on the procedure for electing judges to the European Court of Human Rights. More general info on the election of judges can be read here. Updated information on the forthcoming elections of judges to the European Court of Human Rights for each Contracting Party is available here.