New book on litigating transnational and human rights obligations

Mark Gibney and Wouter Vandenhole, both excellent human rights scholars, have edited a new book on Litigating Transnational Human Rights Obligations – Alternative judgments. This book is unique in the sense that9780415858113 it includes eighteen hypotetical judgments and decisions from several international human rights bodies, including the European Committee of Social Rights and the European Court of Human Rights. Here is the book abstract :

Human rights have traditionally been framed in a vertical perspective with the duties of States confined to their own citizens or residents. Obligations beyond this territorial space have been viewed as either being absent or minimalistic at best. However, the territorial paradigm has now been seriously challenged in recent years in part because of the increasing awareness of the ability of States and other actors to impact human rights far from home both positively and negatively. In response to this awareness various legal principles have come into existence setting out some transnational human rights obligations of varying degrees. However, notwithstanding these initiatives, judicial institutions and monitoring bodies continue to show an enormous hesitancy in moving beyond a territorial reading of international human rights law.

This book addresses the issue in an innovative and challenging way by crafting legally sound hypothetical “judgments” from a number of adjudicatory fora. The judgments are based on real world situations where extraterritorial or transnational issues have emerged, and draw on existing international human rights law, albeit a progressive interpretation of this law. The book shows that there are a number of judicial and quasi-judicial systems where transnational human rights claims can, and should be enforced. These include: the World Trade Organization; the International Court of Justice; the regional human rights monitoring bodies; domestic courts; and the UN treaty bodies. Each hypothetical judgment is accompanied by detailed commentary placing it in context in order to show how international human rights law can address issues of a transnational character.

And here is its table of contents :

1. Introduction: Transnational human rights obligations, Mark Gibney and Wouter VandenholePart 1: International Economic Governance Structures 2. U.S. Trade Santions (World Trade Organization, Panel, Claire Buggenhoudt 3. Biofuel and the Right to Food (World Trade Organization, Panel), Alexia Herwig 4.Land Grabbing and Gender Issues (International Finance Corporation and Compliance Advisor Ombudsman), Joss Saunders Part 2: Global (Human Rights) Monitoring Bodies 5. Putting an End to Victims without Borders: Child pornography (Committee on the Rights of the Child), Gamze Erdem Türkelli 6. Extraterritorial Shared Responsibility for the Right to Health (Committee on Economic, Social and Cultural Rights),Rachel Hammonds and Gorik Ooms 7. Economic, Social and Cultural Rights of Nuba Peoples (Committee on Economic, Social and Cultural Rights), Jernej Letnar Černič 8. “Only the Little People Pay Taxes”: Tax evasion and Switzerland’s extraterritorial obligations to economic, social and cultural rights (Committee on Economic, Social and Cultural Rights), Nicholas Lusiani 9.Labour Rights in a Transnational Perspective (Committee on Economic, Social and Cultural Rights), Arne Vandenbogaerde 10. Climate Change (Human Rights Committee, Ad hoc Conciliation Commission), Margreet Wewerinke 11. Land Grabbing in Uganda by a Multinational Coporation (World Court of Justice), Christopher Mbazira 13. Structural Adjustment and Farmers’ Suicide in India (International Court of Justice), Anita Punj 14. (Economic) Crimes against Humanity (International Criminal Court), Michael Wabwile Part 3: Regional Human Rights Monitoring Bodies 15. Public Duties for Private Wrongs: Regulation of multinationals (African Commission on Human and Peoples’ Rights), Takele Soboka Bulto 16. Forced Evictions in Zimbabwe (African Commission on Human and Peoples’ Rights), Khulekani Moyo17. Land Grabbing in South America (Inter-American Human Rights Commission), Ana Maria Suarez-Franco 18/ Enforcing Extraterritorial Social Rights in the Eurozone Crisis (European Committee of Social Rights), Matthias Sant’Ana 19. Military Interventions in Non-European States (European Court of Human Rights), Nico Moons Part 4: Domestic Courts 20. Extraordinary Rendition (U.S. Supreme Court), Mark Gibney.

ESIL IHRL Interest Group Call for Papers

European Society of International Law’s Interest Group on International Human Rights Law has posted call for papers for “a roundtable on the relationship of international human rights law to other bodies of international and domestic law” at the ESIL Vienna Conference in September 2014.

Judgment in W. v Slovenia

The European Court of Human Rights has on 23 January 2014 delivered judgment in W. v Slovenia (no. 24124/06), which we have discussed before. The Court held that Slovenia violated its procedural obligations under Article 3 of the European Convention. More specifically, it held that :

69. … the Court agrees with the applicant that the prolonged state of uncertainty and other negative implications of the lengthy proceedings, in particular having to relive the painful events a number of times in three separate retrials, caused her unnecessary suffering and frustration which could have been avoided had the criminal-law mechanisms aimed at deterrence of and punishment for criminal acts of sexual abuse been applied in an effective and prompt manner. In this regard, the Court would add that the failure of the State to ensure effective prosecution of rape cannot be justified by the backlog of cases in the relevant courts (see, mutatis mutandisScordino v. Italy (no. 1) [GC], no. 36813/97, § 183, ECHR 2006‑V, and the references cited therein). Neither can it be justified by the frequent changes of the sitting judges who were dealing with the applicant’s case. Namely, as the Court has already emphasised on many occasions, it is for the State to organise its judicial system in such a way as to enable its courts to comply with the requirements of the Convention (see, for example, Šilih, cited above, § 210).

The Court also held that redress obtained by an applicant was not sufficient. It reasoned as follows :

84.  In the Court’s opinion the effects of the prolonged uncertainty as to the outcome of the criminal proceedings and related mental distress endured by the applicant over the period of seventeen years, coupled with the short prison sentences imposed on the defendants, are comparable to the breaches found by the Court in the cases cited in the previous paragraph, which should be reflected in the amount of compensation awarded to the applicant. This finding cannot be changed by the fact that the outcome of the present case, in which eight out of ten defendants were eventually convicted and sentenced to imprisonment, was, as pointed out by the Government, favourable to the applicant.

85.  Therefore, the Court considers that the compensation awarded to the applicant by the domestic courts did not constitute sufficient redress and thus she may still claim to be a “victim” of a breach of Article 3 of the Convention.

FRA Report on data protection remedies

The European Union Fundamental Rights Agency has recently published report on “Access to data protection remedies in the EU Member States”. The report highlights the “victims’ lack of understanding and awareness about data protection and the authorities that serve to help them”.

Judgment in O’Keeffe v Ireland

The Grand Chamber of the European Court of Human Rights has on 28 January 2014 delivered a land-marking judgment in the case of O’Keeffe v Ireland (n. 35810/09) concerning sexual abuses of children in Irish catholic schools in 1970s. It found that Ireland has violated article 3 (prohibition of inhuman and degrading treatment) and article 13 (right to an effective remedy).

168.  To conclude, this is not a case which directly concerns the responsibility of LH, of a clerical Manager or Patron, of a parent or, indeed, of any other individual for the sexual abuse of the applicant in 1973. Rather, the application concerns the responsibility of a State. More precisely, it examines whether the respondent State ought to have been aware of the risk of sexual abuse of minors such as the applicant in National Schools at the relevant time and whether it adequately protected children, through its legal system, from such treatment.

The Court has found that it was an inherent positive obligation of government in the 1970s to protect children from ill-treatment. It was, moreover, an obligation of acute importance in a primary education context. That obligation was not fulfilled when the Irish State, which must be considered to have been aware of the sexual abuse of children by adults through, inter alia, its prosecution of such crimes at a significant rate, nevertheless continued to entrust the management of the primary education of the vast majority of young Irish children to non-State actors (National Schools), without putting in place any mechanism of effective State control against the risks of such abuse occurring. On the contrary, potential complainants were directed away from the State authorities and towards the non-State denominational Managers (paragraph 163 above). The consequences in the present case were the failure by the non-State Manager to act on prior complaints of sexual abuse by LH, the applicant’s later abuse by LH and, more broadly, the prolonged and serious sexual misconduct by LH against numerous other students in that same National School.

169.  In such circumstances, the State must be considered to have failed to fulfil its positive obligation to protect the present applicant from the sexual abuse to which she was subjected in 1973 whilst a pupil in Dunderrow National School. There has therefore been a violation of her rights under Article 3 of the Convention. Consequently, the Court dismisses the Government’s preliminary objection to the effect that this complaint was manifestly ill-founded.