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7719 results in Intersentia

Page 294 of 386

  • Chapter 7 - Special Procedures in the International and Regional Systems

  • from PART II - ACCOUNTABILITY IN INTERNATIONAL AND REGIONAL HUMAN RIGHTS LAW: PROCESSES, PRACTICE AND LIMITS
  • Arne Vandenbogaerd
  • Book:
    Towards Shared Accountability in International Human Rights Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    11 May 2016, pp 155-170

  • Summary

    PROCEDURES

    In the following sections we will discuss the system of special procedures in the international and regional human rights systems. There are currently no special procedures under the European Social Committee and therefore this regional system is not included in our analysis.

    SPECIAL PROCEDURES OF THE HUMAN RIGHTS COUNCIL

    The system of Special Procedures of the Human Rights Council has been inherited from the Commission on Human Rights. In what was probably one of its greatest achievements, the Commission on Human Rights developed an extensive web of Special Procedures in the form of thematic and country-specific rapporteurs/independent experts and Working Groups.

    While the thematic procedures focus on one specific issue across all countries, the country-specific procedures focus on all relevant issues in one specific country. The thematic procedures can thus investigate the human rights situation in any given country, irrespective of the ratification of a human rights treaty. The special procedures can thus address human rights situations at the global, country and local level. The special procedures can also cover all the substantive rights, civil and political as well as ESC rights.

    The mandates generally relevant to dealing with ESC rights are the Special Rapporteur (SR) on the right to food (SR food), the SR on extreme poverty and human rights (SR on extreme poverty), the SR on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (SR health), the SR on the rights of indigenous peoples (SR indigenous), the SR on the human rights of migrants (SR Migrants), the SR on the right to education, the SR on the human right to safe drinking water and sanitation (SR water), and the Independent Expert (IE) on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment (IE Environment).

    In addition, some mandates are particularly relevant as they were in essence created to address extraterritorial or transnational issues.

  • Chapter 2 - The Concept of Accountability

  • from PART I - UNDERSTANDING ACCOUNTABILITY
  • Arne Vandenbogaerd
  • Book:
    Towards Shared Accountability in International Human Rights Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    11 May 2016, pp 21-44

  • Summary

    OBJECTIVE

    Power is a central notion in the concept of accountability. Yarwood has indicated that ‘while the form of accountability is context specific (both in terms of the factual and disciplinary context), the objective in seeking accountability is consistent'. Schedler finds that ‘today, it is the fashionable term accountability that expresses the continuing concern for checks and oversight, for surveillance and institutional constraints on the exercise of power'. Yarwood echoes this definition and considers that accountability is ‘a tool for regulating and responding to the abuse of power […]'.

    In its study of accountability for international organizations the International Law Association has found that ‘[p]ower entails accountability, that is the duty to account for its exercise'. It finds that international law seeks to restrain and regulate States exercising power. In international legal scholarship we find a reference to ‘power breeds responsibility', that is, the acknowledgement that if a State exercise power over another actor it must be held responsible. Nollkaemper finds that the proposition that power breeds responsibility is reflected in the various dimensions of legal responsibility: jurisdiction, wrongfulness and attribution. We will come back to the connection with jurisdiction in a moment.

    Keohane has also asserted that accountability is closely related to power relationships since ‘[…] accountability requires some ability of accountability holders to sanction power-wielders, a relationship of accountability can only exist if the accountability holder can exercise some degree of influence over the power-wielder'. Mulgan similarly points out that an accountability process between actors can only be considered as occurring in an authority relationship' and thus accountability entails ‘rights of authority', that is the right of accountholders to hold power-wielders accountable. The accountability holder needs to be able to request information from the power-wielder and if necessary have the opportunity to impose, or to have imposed, sanctions. Schedler also considers this in his more abstract definition of accountability: ‘A is accountable to B when A is obliged to inform B about A's (past or future) actions and decisions, to justify them, and to suffer punishment in the case of eventual misconduct'. As have other scholars, Schedler thus finds that for an accountability relationship to exist there must be obligation for the power-wielder to give account; the accountability holder must be able to discuss and interrogate the power wielder and be able to sanction in the event of misconduct.

  • Conclusions Part II

  • from PART II - ACCOUNTABILITY IN INTERNATIONAL AND REGIONAL HUMAN RIGHTS LAW: PROCESSES, PRACTICE AND LIMITS
  • Arne Vandenbogaerd
  • Book:
    Towards Shared Accountability in International Human Rights Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    11 May 2016, pp 171-174

  • Summary

    The aim of Part II was to identify clearly the accountability gaps that exist in the international and regional systems of ESC rights protection. The objective of the above review of the international and regional accountability mechanisms designed to deal with ESC rights was to analyse their scope, procedure and practice. We can make a number of overarching conclusions in this regard.

    A first conclusion is that the accountability mechanisms in international and regional human rights law are not territorially restricted. There are no inherent restrictions of a procedural or substantive nature that limit a priori the accountability of States to what happens within their borders. Most of the accountability mechanisms have a broad mandate to accommodate extraterritorial issues. The communications procedures have the most detailed set of rules or ‘roadmaps’ of accountability. This is because they can determine the responsibility of the State for a violation. There is less need for procedural and substantive rules and regulations in accountability procedures that do not result in a finding of responsibility. The communications procedures, despite having detailed rules, do not reveal any formal hurdles against the extraterritorial application of a treaty. What about the practice?

    A second consequent observation is that the international and in particular the regional mechanisms have not produced much relevant practice for this research. The communications procedures of the CRC and CESCR have only recently entered into force and therefore have not yet produced any relevant practice. The case law in relation to extraterritorial obligations is found at the regional level and in the field of civil and political rights. We have indicated that the ECtHR, the IACHR and the ACHR have recognized the extraterritorial application of human rights treaties but so far only in limited instances. As a consequence, the case law does not enhance our understanding of the attribution of extraterritorial obligations in the field of ESC rights, in particular in relation to positive obligations such as the duties to fulfil and protect.

    Most practice at the international level is found in the State reporting procedure, to a certain extent the UPR, and the special procedures. The treaty bodies are supposed to be the most authoritative bodies, yet the vagueness of the CESCR in dealing with States’ extraterritorial obligations only exacerbates the indeterminacy surrounding extraterritorial violations.

Optional Instruments of the European Union
  • A Definitional, Normative and Explanatory Study
  • Volume 149
  • William Bull
  • Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    11 May 2016
  • This rise of a particular kind of European Union legislation known as the 'optional instrument' is a novel trend in the context of EU law, and one that until now has not been comprehensively mapped or explored. This study examines and discusses existing and proposed EU Optional Instruments (OIs) in different fields of European law, including company law, intellectual property law and procedural law (such as the European Company, the Community Trade Mark and the European Small Claims Procedure, respectively), as well as contract law. The study identifies the core elements that define Optional Instruments of the EU and distinguish them from other kinds of EU legislation, especially so-called approximating measures. It provides a detailed overview of a total of twelve OIs in the aforementioned policy areas, charting their development, characteristics and (where appropriate) usage in practice. It investigates the case for and against the use of optional instruments as an alternative means of EU law-making, by analyzing and evaluating the principal arguments in the debate surrounding the use of this legislative method. Finally, it offers an explanation of the varied degree of 'success' of EU OIs already in existence, by identifying possible factors that play a role in this respect and testing the significance of these factors with reference to available empirical data. In doing so, the author provides a framework for future research into this developing phenomenon, as well as guidance for the elaboration of future Optional Instruments of the European Union.

  • Valorization Addendum

  • William Bull
  • Book:
    Optional Instruments of the European Union
    Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    11 May 2016, pp 263-266

  • Summary

    The Societal Relevance of this Thesis

    The rise of Optional Instruments of the European Union is a phenomenon that provokes a multitude of profound and far-reaching questions, and this thesis offers a response to the most pivotal of them. The phenomenon of EU OIs is connected with a number of highly relevant issues in current legal research. These include (but are by no means limited to) the new governance debate and the exploration of alternative ways of lawmaking in the Europeanization process; the issue of how to find solutions for problems that cannot be solved at the national level while at the same time preserving Member State sovereignty; the question of whether to encourage the transnational application and enforcement of law amidst fears of ‘forum shopping’ and a ‘race to the bottom’; and how to reconcile pleas for greater choice of law for private actors with concerns of social justice. All of these issues constitute central themes in the academic discussion of EU Optional Instruments.

    There is, however, a conspicuous paucity of academic literature on Optional Instruments of the European Union as a general legislative method, and the need for an innovative and profound inquiry into the phenomenon of EU OIs is therefore indubitable. Of course, there is still much to be said about this important legislative trend happening with the EU, but this study serves to elucidate the main points and evaluate the key arguments and viewpoints on the subject, thereby addressing the definitional, normative and explanatory gaps in the existing literature. Accordingly, the present study is of great relevance to an academic discussion that is still in its infancy. By defining, mapping and analysing in detail existing and proposed optional instruments in the EU, as well as identifying pertinent similarities and differences between them, the research serves to advance knowledge of this novel legislative trend in academia. In particular, the study's analysis and evaluation of the normative issues surrounding EU OIs is of especial academic relevance, as this is intended not only to provoke but also to provide a framework for further academic debate on the subject of OIs, primarily (though not necessarily only) in the field of European private law. Hence, it is expected that the results of the research could both inspire and serve as the basis for further exploration into the topic.

  • Chapter 4 - Individual, Collective and Inter-State Complaint Procedures in the International and Regional Accountability Framework

  • from PART II - ACCOUNTABILITY IN INTERNATIONAL AND REGIONAL HUMAN RIGHTS LAW: PROCESSES, PRACTICE AND LIMITS
  • Arne Vandenbogaerd
  • Book:
    Towards Shared Accountability in International Human Rights Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    11 May 2016, pp 89-140

  • Summary

    INTRODUCTION

    The most used legal dimension of human rights accountability - in the sense of invoking and determining responsibility - has materialized in the international and regional accountability system through two accountability procedures or mechanisms:

  • - The individual complaints procedure; and

  • - The inter-state complaint procedure

    • In line with our definition of accountability these procedures entail a relationship between an accountholder and a power wielder where the latter is under the obligation to provide information about its conduct and may face consequences if it has failed to fulfil its obligations. In other words, they both present a legitimate accountability procedure.

    The main difference with the State reporting procedures is that individual complaint procedures lead to a formal decision on the legal responsibility of the State. They are thus more adversarial accountability procedures than the State reporting procedure. Consequently, the procedures contained detailed procedural and substantive rules in relation to the complaints submitted.

    A second common feature is that the decisions - or ‘views’ as they are called - of the CESCR, CRC, IACHR and African Commission have a non-legally binding character as a quasi-judicial body issues them. Quasi-judicial refers to ‘an organ that is not judicial and is not presided over by judges who render judgement, but is a forum/body that is presided over by members with other titles […], who examine cases of alleged human rights violations and apply the international legal norms as standards with which to judge a State's action'. In contrast, the African Court on Human and Peoples’ Rights (ACtHR), the European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights (IACtHR) are judicial bodies and thus their decisions are legally binding.

    Nevertheless, the quasi-judicial bodies strive to function as a genuine human rights court when deciding cases. In other words, they apply strict procedural and substantive rules and thus provide a formal accountability process for victims of human rights violations. The rules and their interpretation determine whether or not complaints in relation to the violation of extraterritorial obligations will be dealt with. In the sections below we will focus on issues of standing, material scope and jurisdiction in the international and regional human rights mechanisms that can deal with ESC rights.

  • Chapter 1 - Introduction

  • Arne Vandenbogaerd
  • Book:
    Towards Shared Accountability in International Human Rights Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    11 May 2016, pp 1-18

  • Summary

    THE TENSION BETWEEN LAW AND FACT

    The starting point of this book is that international human rights law is out of sync with the daily realities of our globalized world. This affirmation is not new and had already been raised more than a decade ago. In 1997 scholars noted for example that ‘it is no longer taken for granted that the realization of economic, social and cultural rights (ESC) depends significantly on action by the state, although, as a matter of international law, the state remains ultimately responsible for guaranteeing the realization of these rights'.

    Scholars in political science and international relations have studied globalization from the standpoint of the changing role of the State in order to understand the effects of globalization on global governance. From a human rights perspective scholars have assessed the value and impact of globalization on development and the advancement of human rights. A common concern in both scholarly fields is the reconfiguration of power that is taking place. Keohane and Grant described it as follows:

    The interdependence of states, globalization of business, expansion of the scope and authority of multilateral organizations, and rapid increases in the number of nongovernmental organizations (NGOs) have heightened concerns about the way power is used and abused on the world stage. Controversy about globalization pivots around the twin issues of accountability and democracy.

    According to Held the process of globalization can be understood as being ‘[…] to express the expanding scale on which power is reorganized and exercised […] it involves the reordering of power relations between and across the world such that key sites of power and those who are subject to them are often oceans apart'. This diffusion of power contributes to the feeling that there is a ‘growing significance of “remote” forces on our lives', which ‘complicate the presumed naturalness of nation-state communities’ and territory. The axiom that power entails responsibility is considered basic to any democratic order. Evans and Hancock assert that ‘people begin to question what national democracy means if their government is impotent in exercising any control over economic factors that affect their daily lives'. An illustration of the diffusion of power away from the State is the global economic crisis that swept across the world in 2008.

  • Summary

  • William Bull
  • Book:
    Optional Instruments of the European Union
    Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    11 May 2016, pp 259-262

  • Summary

    This thesis is about a particular kind of European Union legislation known as the ‘optional instrument’. The thesis examines and discusses existing and proposed EU Optional Instruments (OIs) in different fields of European law, including company law, intellectual property law and procedural law (such as the European Company, the Community Trade Mark and the European Small Claims Procedure, respectively), as well as contract law.

    In general terms, the principal aims of this research are fourfold. First and foremost, the thesis aims to identify the core elements that define this kind of EU legislation, and that distinguish it from other kinds of EU legislation, notably ‘harmonization’. The second main objective is then to describe in detail and ultimately ‘map’ a number of EU OIs that have been adopted or proposed in the various EU policy areas mentioned above, charting their development, characteristics and (where appropriate) usage in practice. Thirdly, the thesis seeks to assess and evaluate EU OIs by investigating the advantages and disadvantages of creating optional private law instruments at European level as an alternative to harmonization. And, last but not least, the research aims to explain the apparently varied degree of ‘success’ of EU OIs already in existence, by identifying and analysing possible factors that could play a role in this respect.

    While there does already exist considerable literature on optional instruments as a distinct form of legislation in specific areas of European law, a general account of Optional Instruments as a distinct kind of EU legislative method that transcends individual policy areas is much harder to come by, and to date no research project has conducted an in-depth theoretical study of the nature, object, advantages, drawbacks and usage of EU OIs. Such a study is therefore needed in order to build upon the existing academic research into this fast-evolving phenomenon.

    Chapter 2 concerns the question of what defines EU Optional Instruments. More specifically, it is focused primarily on identifying the grounds or core elements on the basis of which the various legislative measures under examination in this study can be classified as EU OIs. In addition, this chapter seeks to place EU OIs in the wider context of optional instruments in general, as well as contrasting EU OIs with other kinds of EU legislation, and particularly EU ‘approximation’, both in a conceptual and in a technical, legal sense.

  • Preface

  • Arne Vandenbogaerd
  • Book:
    Towards Shared Accountability in International Human Rights Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    11 May 2016, pp v-vi

  • Summary

    Although “international human rights law” is a commonly used phrase, the term is slightly misleading in the sense that so little of this law has been international in nature or in scope. Rather, what has evolved over time has been a system where the responsibility to protect universal human rights - and even the responsibility for violating human rights standards - has been confined to the territorial boundaries of each country. Moreover, although the essence of human rights is to protect the dignity of each and every human being, the law that has been created for this purpose has placed a straightjacket on itself by ignoring some of the most insidious threats to human security.

    In this extraordinarily thought-provoking book, Arne Vandenbogaerde attempts to bring international human rights law much closer to what he refers to as the “daily realities of our globalized world.” What this reality shows is this: that so often human insecurity is the result of the acts and omissions of a confluence of actors operating from a variety of places. To be sure, in many instances these harms will come from the hands of one's own state. However, as globalization gallops forward, there are many more instances and opportunities for the policies and practices of one state to have a profound effect - both positive and negative - on human rights protections in other lands, and this is particularly the case in the area of economic, social and cultural rights.

    Beyond this, what empirical evidence is now starting to show is that non-state actors pose just as great a threat - arguably, even more of a threat - to human wellbeing than do states. If one doubts this, consider the fact that many of the wealthiest entities in the world are privately held corporations. And one of the things that make them so rich and so powerful is that they frequently set up their operations in countries where governments are weakest and, not coincidentally, where large segments of the host population are destitute and deprived of their human rights.

Page 294 of 386