ABSTRACT

This contribution focuses on the framework of human and fundamental rights related to science: on the one hand, scientific research has been heavily influenced by the impact of Information and Communication Technologies (ICTs) and digital technologies; on the other hand, the COVID-19 pandemic has made clear the need to strengthen the Right to Science, ensuring its effective enforcement and the maximum sharing of scientific knowledge. The aim of this contribution is to participate in the debate on the Right to Science by proposing a configuration of a Right to Open Science. It is suggested, therefore, to interpret European policies on Open Science as an explicit embodiment of the human Right to Science. This approach should be adopted as a benchmark in the forthcoming national and local implementations of European policies on Open Science, in order to increasingly guarantee the maximum sharing of knowledge and, at the same time, the protection of the rights and freedoms of the individuals involved.

INTRODUCTION

In the current era of the digital revolution, the impact of new technologies and digital information and communication technologies (ICTs) on scientific research is readily apparent. Technologies such as cloud computing, highperformance computing (HPC) and artificial intelligence (AI) are no longer exceptions in the world of scientific research; in many fields, they have become essential elements of scientific projects. This radical transformation, triggered by digital technologies, in the field of scientific research is represented by the emergence of the Open Science paradigm. Open Science can be generally defined as the new way of conducting science, which aims to foster the openness of every phase of the scientific research process from data collection to the dissemination of scientific results, within the scientific community, and externally, towards society. In recent years, European institutions and Member States have taken a clear stance in supporting and promoting the Open Science paradigm in Europe: projects such as the European Open Science Cloud confi rm the relevance of this matter at European level.

ABSTRACT

The vital role that National Human Rights Institutions (NHRIs) play in the domestication of international human rights law has long been documented. It is, therefore, surprising that only marginal attention has been given to how these actors can help implement judgments of the European Court of Human Rights (ECtHR or Court). Recently, however, there has been a promising change of course, as scholars have started to take note of the procedural involvement of NHRIs in the European Convention (ECHR) system. In particular, Rule 9(2) of the Committee of Minister Rules, which empowers NHRIs to formally participate in the execution process of the Court’s judgments, has become a topic of interest. In its 2021 Recommendation on NHRIs, the Committee of Ministers of the Council of Europe affi rmed the importance of NHRI participation in the execution process of judgments of the ECtHR.

At this crossroads of scholarly and political attention to the importance of NHRI participation, this contribution discusses current and potential participation of NHRIs in the ECHR system to help advance the execution of judgments of the ECtHR. As such, it uses this momentum to revisit and add to proposals to further increase and strengthen their involvement. Against this background, this contribution sets out to provide insight into a wider array of procedural options available for NHRIs to participate within human rights systems with a view to contributing to effective human rights implementation. For this purpose, it studies the Inter-American Human Rights system, which is generally known for the strong participation of actors other than the state. Procedural possibilities for such actors, including NHRIs, are different from those under the ECHR system. A number of expert interviews with stakeholders of the Inter-American system carried out for this study help elucidate the role and impact of NHRIs. With due regard to institutional and contextual differences between the two systems, the contribution considers whether procedural opportunities and lessons learned from the Inter-American system can be kept in mind for bolstering and adding to proposals for further use of NHRIs in the European Convention context. In doing so, the present contribution seeks to help promote eff ective and full utilisation of NHRI potential in the European Convention system.

ABSTRACT

The present contribution analyses the developments in the case law of the European Court of Human Rights (ECtHR) in 2021. The relevant judgments and decisions have been selected on the basis of two criteria, namely qualifi cation as ‘key cases’ by the Court itself, and the attraction of the stakeholders’ attention and/or criticisms. Among the cases that met the above criteria, the author selected those cases that dealt with a common issue, namely the problem of the applicability (in terms of establishing states’ jurisdiction under Article 1 of the European Convention on Human Rights), and the interpretation and application (in terms of clarifying the content of states’ duties and determining whether they have been violated in the specific circumstances of the cases) of the Convention in situations of an international or cross-border nature. The analysis shows that the Court is, more and more, faced with similar situations. At the same time, although the Court is clearly willing to develop states’ Conventional duties and obligations in international and cross-border situations, a manifest preference for procedural instead of substantive obligation has been identified. In this regard, the specific topic dealt with in the present contribution confirms the more general tendency, identified by the literature on the Court’s case law, towards a ‘procedural review’ of Member States’ compliance with the Convention obligations.

INTRODUCTION

The point of departure for selecting the most relevant judgments and decisions issued by the European Court of Human Rights (‘the ECtHR’ or ‘the Court’) in one entire year seems to be the consultation of those that are qualified as ‘key cases’ by the Court itself. It can be assumed that those are the cases which raised complex legal issues and/or clarified, developed or overturned the jurisprudence of the Strasbourg Court. From an academic point of view, however, the selection must also take into account cases which attracted attention and/or criticism from governments, NGOs, academics and other stakeholders.

ABSTRACT

The present contribution provides a broad overview over the fundamental and human rights law jurisprudence of the Court of Justice of the European Union (CJEU) in the year 2021. To that effect, seven Grand Chamber judgments in fields such as the rule of law, the right to remain silent, respect for private and family life and the best interest of the child, freedom to conduct business, the right to strike, and non-discrimination are discussed. As a general conclusion, it can be stated that the jurisprudence reveals a holistic approach, and a tendency towards a constitutionalist approach.

INTRODUCTION

In 2021, the CJEU delivered a number of important judgments in the field of human rights protection. The following contribution will discuss a selection of seven judgments which are of particular relevance. While the case selection is based on personal preference, and by no means provides a full account of the Court’s human rights jurisprudence in 2021, the contribution tries to give as broad an overview of the Court’s case law as possible. To that effect, judgments concerning the rule of law, the right to remain silent, respect for private and family life and the best interest of the child, freedom to conduct business, the right to strike, and non-discrimination are discussed. All judgments included are Grand Chamber judgments of the European Court of Justice (ECJ) that were delivered following a reference for a preliminary ruling. Each analysis starts with a brief introduction (1); followed by a short summary of the facts and background to the case (2); a summary of the judgment (3); and ends with a short comment highlighting specifi c aspects of the judgment (4).

THE RULE OF LAW : PROKURATURA REJONOWA W MIńSKU MAZOWIECKIM

INTRODUCTION

As in previous years, this contribution will begin with a case relating to the rule of law. The conception of the European Union (EU, the Union) as a ‘Union based on the rule of law’ is paradigmatic for the Union’s self-image. However, in recent years, the rule of law has deteriorated quite dramatically in a number of Member States.

ABSTRACT

Social media and the Internet have undisputable usefulness and potential. However, they also entail risks and dangers, which may produce repercussions on human rights. This is demonstrated by the growing litigation before the European Court of Human Rights (ECtHR), which has dealt with novel questions, problematic issues and potential human rights violations associated with the use of social media. This contribution examines the Court’s approach to the use of social media as a new tool of communication. This is done by looking at three different perspectives, corresponding to the main sections of the text. The first section (section 2) is devoted to social media as used by the ECtHR itself, providing examples of how these means of communication are used in Strasbourg for different purposes. The second and third sections (sections 3 and 4) address the topic of social media in the litigation before the ECtHR from two angles: substantively, by looking at the relevant case law involving human rights violations; and procedurally, by considering the admissibility of the use of social media as a means of lodging an application with the Court, and the use of social media to maintain lawyer – applicant contact during the proceedings. In the analysis of the substantive and procedural issues stemming from the social media – human rights nexus, examples will be provided with regard to different tools, such as Facebook, YouTube, Instagram, Twitter and WhatsApp. The case law considered here covers different areas involving social media, such as freedom of expression, the right to respect for private life, prohibition of discrimination, hate speech and cyberviolence. By way of conclusion, the article will provide an overall evaluation of the ECtHR’s approach to social media.

INTRODUCTION

Social media and the Internet have become part of our daily lives. While they have undisputable usefulness and potential, they also entail many risks and dangers, which may produce repercussions on human rights. This is demonstrated by the growing litigation surrounding social media, which has gradually started to reach the European Court of Human Rights in Strasbourg (ECtHR or the Court) from the domestic level.

Cheltenham/Northampton, Edward Elgar Publishing Limited, 2021, 224 pages, £ 80.00

‘What happens to the fundamentality of human rights when one of the right to health’s most crucial components becomes operationalized under a private logic, and what does that say about the alleged indivisibility and protection on an equal footing of all human rights?’ (p. xii). This fundamental question provides the impetus for Eduardo Arenas Catalán’s timely monograph The Human Right to Health: Solidarity in the Era of Healthcare Commercialization . Published in the midst of the COVID-19 pandemic, a medical state of emergency that has exposed the fragility of national health systems worldwide, this book aims at uncovering ‘healthcare commercialization’ as the central contemporary challenge to the equality of health care access as an essential aspect of the human right to health. In order to counter this ongoing commodification of health care under a neoliberal dogma, the author suggests moving beyond predominant interpretations of the human right to health that disregard, and thereby even reproduce, the issue. As an alternative perspective, Catalán proposes the application of the principle of solidarity in the context of the right to health, and social rights in general, allowing for a focus on the rights’ collective aspects and their implications for positive obligations pertaining to states.

Given the pervasive interplay between human rights law, public health policies and socio-economic developments within the core themes addressed by the author, it is highly appropriate that this monograph was published in the Elgar Studies in Health and the Law series. The book comprises 224 pages and is divided into six chapters that coherently illustrate the author’s proposed approach to the human right to health. As regards methodology, the book moves from a critical, yet descriptive assessment of the status quo of the human right to health’s interpretation, to a normative discussion of the topic, and ultimately proceeds to address practical implications in judicial and political realms.

In the Preface and Chapter 1, the author introduces the issue of ‘healthcare commercialization’ in a political context, assesses its problematic stance in the mainstream interpretative practice concerning the right to health, and highlights to what extent it may reinforce the inequality of health care access.

ABSTRACT

Memory laws , inscribing an official version of history into law, are often conceptualised as a manifestation (or distortion) of the ‘militant democracy’ concept which denies certain democratic rights to the ‘enemies’ of democracy. However, a closer look at the case law of the European Court of Human Rights (ECtHR), a promoter of militant democracy, reveals ambiguities. Focusing on genocide denial bans, the strongest form mnemonic governance, this contribution seeks to illuminate the legal value that the ECtHR attributes to the militant democracy concept in the context of memory laws. It claims, first, that this doctrine’s significance for the justification of genocide denial bans is primarily only a conceptual one without clear normative value. Second, it argues that where the militant democracy concept is accorded normative value, it operates as an interpretative limit to genocide denial bans other than the Holocaust denial ban. Third, it is claimed that, on the grounds of the ECtHR’s reasoning, the identified conceptual value of militant democracy to justify genocide denial bans can be translated to other ‘self-inculpatory’ memory laws, i.e. laws promoting the memory of crimes for which the legislating state assumes responsibility. This excludes memory laws serving as means for self-exculpation or third-inculpation.

INTRODUCTION

Russian President Putin’s distortive drawing on history, in February 2022, to politically ‘justify’ the war of aggression against Ukraine was but a new momentous peak in the general ‘rise of memory’ that can be observed in politics, law and society in recent years. In particular, the increasing use of memory laws has led to veritable memory wars in Central Eastern Europe (CEE) during the last decade. The term ‘memory laws’ is used today to describe legal measures which inscribe a state-approved interpretation of history into law. At its core, the concept refers to laws that explicitly prohibit expressions deviating from this official version of history, oft en under the threat of criminal sanctions. The ban on Holocaust denial that exists in most European countries is a prominent example.

Leiden, Koninklijke Brill NV, 2021, 544 pages, € 281.00

With the publication of the latest, highly disturbing, report of the Intergovernmental Panel on Climate Change (IPCC), combating climate change has gained renewed relevance and public attention. In its multiple reports, the IPCC has repeatedly warned of the cascading effects of climate change, which is already causing widespread natural disruption and large-scale human rights violations. Still, the ever-alarming appeals of the scientific community, which require urgent action in the face of a closing window of opportunity, have not (yet) led to decisive political action. On the contrary, the international community is somewhat hesitant to implement ambitious climate protection measures, risking the occurrence of irreversible climate change: the so-called tipping points. Against this background, plaintiffs around the world file so-called climate lawsuits, seeking to oblige states and enterprises (mainly ‘carbon majors’) to implement more ambitious climate protection measures, or to try and obtain compensation for climate damage already suffered. The ultimate aim is to close the currently wide gap between scientific recommendations and projections, on the one hand, and climate policies implemented in practice, on the other, and to avert, or at least mitigate, dangerous climate change and its disastrous impacts on people and the environment. Climate change has, thus, become a legal issue that courts are increasingly concerned with. Even though climate lawsuits are oft en brought in national fora, there is a high degree of communication between different jurisdictions, and courts tend to reference each other’s arguments and reasoning on climate change to a large extent.

The publication at hand, edited by Ivano Alogna, Christine Bakker and Jean- Pierre Gauci, represents a most valuable contribution to this interjurisdictional communication. It provides profound insights into various litigation efforts and enables judges, lawyers, academics and representatives of civil society to map out possibilities and constraints in climate change litigation. The anthology, which emerged from a conference titled, ‘Climate Change Litigation: Comparative and International Perspectives’, held at the British Institute of International and Comparative Law in 2020, gathers high-profile climate change litigation experts from around the globe. It takes a comprehensive approach in combining academic and non-academic national and international perspectives.

ABSTRACT

The adverse effects of climate change on children’s life trajectories and human rights are widely recognised today. The negative impacts of climate change threaten children’s rights to life, health, food, water and sanitation, education, housing, culture, and development, among others. And while all children are exceptionally vulnerable to climate change, those who are already vulnerable or marginalised are, and will be, disproportionately affected. At the level of states, those whose populations are most vulnerable to the adverse effects of climate change have generally contributed the least to its causes and have fewer resources to mitigate climate change and protect their populations. Our contribution analyses how these different dimensions of justice have been addressed, thus far, in climate litigation, with a particular focus on youth-led climate cases recently filed before regional courts and international human rights bodies. It observes that procedural obstacles have hindered access to justice for children and young people in early rights-based climate cases. It then proceeds to reflect on the extent to which human rights bodies and courts can grapple with the procedural requirements of human rights litigation in a manner that aligns with the letter and spirit of human rights treaties, and responds to the legitimate expectations of those at the forefront of the climate crisis.

INTRODUCTION

Children are disproportionately affected by climate impacts both within and across societies. The United Nations Children’s Fund (UNICEF) has stated that, of today’s 1.8 billion young people, approximately 1 billion children live in states at ‘extremely high-risk’ of climate disasters, half a billion children live in areas of extremely high flood occurrence, 160 million children live in areas of high or extremely high drought risk, and 115 million children live in zones of high or extremely high tropical cyclone risk. Climate-related heatwaves, droughts and floods increase rates of vector-borne diseases, which disproportionately affect children. Further slow-onset events, such as sea level rise and resultant saltwater intrusion, threaten children’s access to clean water.

London, Routledge, 2021, 348 pages, £ 27.99 (Paperback)

For the last two years, no topic has been nearly as ubiquitous as the COVID-19 pandemic and all its repercussions. Nearly every aspect of our lives has been impacted by it in some way or other, inducing not only multifarious measures concerning our different ways of life, but also causing enormous human suffering. In order both to assess the first year of COVID-19 policy-making, and to provide a guideline from a human rights standpoint, Kjaerum, Davis and Lyons bring together international human rights scholars, focusing on the various aspects of the ongoing crisis, its interdependencies, and the necessary reactions from a human rights perspective.

The book is divided into three parts, each consisting of a varying number of contributions by international human rights experts. Part I concerns ‘Human rights during health crises’, while the second part covers ‘Vulnerability and inequality’. In the third part, ‘Cornerstones for social cohesion’ are addressed. Rounding up the three parts and providing several proposals for action, the editors present their conclusions in a closing chapter.

The first part of the book, ‘Human rights during health crises’, gives insights into previous pandemics and the corresponding historical approaches, as well as the diversity of human health policies concerning the ongoing crisis. Demonstrating the historical development, the author shows how past pandemics laid the groundwork for the recognition of health as a fundamental right in the World Health Organization’s Constitution. The neglect of this right, occurring especially oft en in populist responses to the pandemic, leads to prioritising the collective or privileged groups over one person. Human rights approaches to COVID-19, instead, recognise the equal value of individuals, and are, therefore, more democratic and evidence-based. Reflecting these aspects, the authors elaborate on the necessity for a human rights approach, in view of the adverse effects that can be triggered by a pandemic, for instance stigmatising infected people or groups unable to isolate themselves sufficiently. Therefore, it is of great importance to put a great effort into clear and understandable risk communication, allowing people to adequately form opinions on the matter.

ABSTRACT

Over the past two years, the international debate on artificial intelligence (AI) regulation has clearly escalated, with several initiatives led by the United Nations (UN), the Organisation for Economic Co-operation and Development (OECD), and the Council of Europe (CoE). Furthermore, at a regional level, the European Union (EU, the Union) proposal on a future regulation on AI, and several national strategies, have created fertile ground for a more mature and elaborate debate. In this regard, the initiative of the CoE, with the establishment of the Ad Hoc Committee on Artificial Intelligence (CAHAI), with its multi-stakeholder approach, the different legal cultures of Member States and Observers, and stakeholder participation process, offers an interesting case study on the tensions underpinning the ongoing regulatory process. Leaving aside the variety and creativity of ethical guidelines, developing binding provisions on AI entails addressing important and challenging issues relating to the scope of the regulation; the interplay between international, national and soft law; different approaches in crucial areas (dual-use technology, national security, deference, public sector, liability, etc.); and the role and nature of future AI supervisory authorities. In this contribution, we analyse all these different elements not only from a traditional legal perspective, focused on the main outcomes of the CAHAI, but also by looking at the process and highlighting the underlying tensions, different points of view, consultation methodologies and the dynamics that make the dialogue on AI regulation an extremely interesting laboratory for human rights law. The overall focus of our analysis is on the ambitions that characterise the debate on AI regulation, and how the initial high expectations of addressing crucial human rights issues risk being frustrated and limited to a general riskbased approach, as well as a minimalist regulation which looks more to industry and economic benefi ts than to human rights. This is occurring at a time when several academic researchers suggest adopting a broader perspective on the AI industry by considering its entire supply chain from a human rights standpoint, which also has relevance for the role of human rights in international business and competition.

Cham, Palgrave Macmillan, 2022, 349 pages, € 109.99 (Hardcover)

Stapel’s book examines why regional organisations create ‘regional institutions’, and how such institutions are implemented. Regional institutions are ‘sets of rules and standards that govern the behaviour of states’ within or of a regional organisation [3]. The book focuses on regional institutions that promote and protect democracy, human rights, and the rule of law. According to Stapel, of the 73 regional organisations in the world, more than 40 had adopted at least one of the three fundamental governance standards by 2020 [5,7], and only about 20 have not yet adopted any of these three standards. This monograph discusses the adoption and design of these regional institutions, but without addressing their effects and effectiveness [4]. The adoption and design of democracy, the rule of law, and human rights institutions in regional organisations depend, pursuant to the central argument of the book, on two different factors that affect each other: demands and diffusion [11 et seq]. On the one hand, these fundamental governance standards are fleshed out according to the interests of the Member States in pursuing their distinct objectives (‘demands’). And, on the other hand, regional organisations will model their institutions after those already existing in other regional organisations (‘diffusion’). In the analysis, Stapel employs a mixed methods approach [cf. 15 et seq]. He fi rst analyses data collected in two so-called ‘GTRO-data sets’ (acronym undefi ned) that he developed [90 et seq], before empirically testing the interplay between demand and diffusion. The analysis is complemented by two case studies that examine, in detail, the governance standards of the Organization of American States (OAS), on the one hand [201 et seq], and the African Union (AU) and its predecessor, the Organization of African Unity (OAU), on the other [237 et seq]. The selection of these two case studies already suggests that the book follows a different path to comparable works in the field.

Leiden, Koninklijke Brill NV, 2021, 116 pages, € 84.00

Hate speech is often used as a tool for discriminating against people that belong to a marginalised group or minority. When it comes to the LGBTQIA+ community, hateful expressions oft en contain a religious background. Phrases such as ‘homosexuality is a sin!’ , ‘homosexuals will go to hell!’ or ‘it goes against God!’ are only a few examples of homophobic/transphobic hate speech. This poses a special dilemma, from a legal perspective, as, on the one hand, the right to freedom of religion and belief (FORB), as well as the right to freedom of expression, are expressly stated in various international human rights sources, whereas, on the other hand, international provisions banning discrimination do not explicitly include discrimination on the grounds of sexual orientation or gender identity.

In his book Religious Speech, Hatred and LGBT Rights, Jeroen Temperman deals with this dilemma, and questions such as: what constitutes as hate speech under international and regional standards? Where does the line lie between freedom of expression, religion or belief and the prohibition of discrimination? Can a right against discrimination on the basis of sexual orientation and gender identity be derived from international obligations without being expressly named therein? To what extent can homophobic/transphobic speech be justified when quoting religious beliefs?

By giving an extensive and comprehensive overview of the legal framework and existing case law on a national, regional and international level, the author methodically answers these questions, and establishes a possible benchmark for balancing FORB and LGBTQIA+ rights. He first addresses the problem of whether the LQBTQIA+ community can, in fact, be qualified as a group that is protected against incitement and discrimination under international human rights law. He concludes that such a qualification is not only possible, but is indicated, and is already in practice. The UN Human Rights Committee, as well as the European Court of Human Rights (ECtHR), have recognised LGBTQIA+ rights, making a balancing of rights, and thus a limitation of other substantial rights, possible.