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doi: 10.1093/hrlr/ngac030pmid: N/A
ABSTRACTThe question of whether the monitoring bodies have competence concerning reservations is at the centre of the discussion of reservations to human rights treaties that has occupied many international legal scholars over the last few decades. The Istanbul Convention’s treaty monitoring body, GREVIO, is the only human rights treaty monitoring body with a direct competence concerning reservations. However, as practice to date shows, it does not make much use of this power. This is a big disappointment considering all the efforts of other bodies in the past and the doctrinal positions of various scholars. The main aims of this article are threefold to: present GREVIO’s practice to date concerning reservations, provide a brief historical overview of how other human rights treaty bodies have approached their role concerning reservations, and finally, attempt to explain why GREVIO has abandoned a more proactive position on reservations.
Fredman, Sandra; Donati, Georgina; Richter, Linda M; Naicker, Sara N; Behrman, Jere R; Lu, Chunling; Cohrssen, Caroline; Lopez Boo, Florencia; Raghavan, Chemba; Devercelli, Amanda; Heymann, Jody; Stein, Alan; ,
doi: 10.1093/hrlr/ngac024pmid: N/A
There is incontrovertible evidence that early learning opportunities shape long-term development and health. Nevertheless, early childhood care and education (ECCE) is not expressly mentioned as part of the right to education in the Convention on the Rights of the Child, the International Covenant on Economic, Social and Cultural Rights, and the Convention on the Rights of Persons with Disabilities. This paper argues that the right to education can nevertheless be regarded as including ECCE. We examine the treaties, General Comments, and 264 Concluding Observations by relevant UN monitoring bodies, covering 152 countries from 2015 to 2020, to determine whether the right to ECCE is regarded as part of States’ obligations and the content of the duty. These demonstrate consistently that States must provide affordable, accessible, quality, inclusive ECCE, with adequate resources. We argue that monitoring committees should draw these obligations together in one General Comment, thereby improving States’ accountability and guiding the delivery of ECCE.
doi: 10.1093/hrlr/ngac023pmid: N/A
This article examines European Court of Human Rights (ECtHR) jurisprudence concerning free elections and identifies relevant approaches that can be applied to electoral disinformation. The relationship between disinformation and freedom of expression has attracted considerable academic scrutiny in recent years. However, surprisingly little attention has been given to the right to free elections. This article addresses this gap by identifying key ECtHR approaches to free elections under Article 3 of Protocol 1 of the ECHR and evaluating the Court’s interpretive reasoning in the disinformation context. Focus is given to cases where the Court has addressed falsified information in the electoral process. Considering the special relationship between freedom of expression and free elections in Strasbourg jurisprudence, focus is also given to the Court’s contemplation of acceptable limitations to freedom of expression under Article 10 of the ECHR in response to deceptive political expression. Mapping the Court’s reasoning in key decisions, this article identifies informed democratic engagement as a crucial requirement that permeates the Court’s approach to elections. Considering the importance of democracy in the Court’s reasoning, this article argues that the Court should be more proactive in elucidating key standards for Contracting Parties to make democracies more resilient to electoral disinformation.
doi: 10.1093/hrlr/ngac026pmid: N/A
The last three decades have seen an explosion of academic, advocacy and policy-maker interest in both the theory and the practice of children’s rights. There is a growing global body of strategic litigation focused on the advancement of those rights through positive legal and/or social change.In this context, child rights have primarily played an ‘outward-facing’ role: used as a schema that should constrain or mandate the actions of external decision-makers that are the targets of litigation. However, children’s rights have not generally been used as a framework by which to assess, and as necessary, critique strategic litigation practice—i.e. as a lens to be turned inwards by litigators to consider the extent to which their practice is consistent with child rights standards.This article considers the case for child rights strategic litigation (CRSL) practice that is child rights-consistent. In doing so, it identifies CRSL-relevant rights under the UN Convention on the Rights of the Child and outlines how such rights arise in the litigation process. It ultimately posits that child rights can serve as a clear, multi-faceted framework that enables litigators to strengthen their existing practice in a legitimate, unified and coherent way.
Ligthart, Sjors; Bublitz, Christoph; Douglas, Thomas; Forsberg, Lisa; Meynen, Gerben
doi: 10.1093/hrlr/ngac028pmid: N/A
In recent years, there has been increased academic interest in the human right to freedom of thought (RFoT). Scholars from various disciplines are currently debating the content and scope of this right. In his annual thematic report of 2021, the United Nations Special Rapporteur on Freedom of Religion or Belief paid explicit and comprehensive attention to the RFoT, encouraging further clarification of the content and scope of the right. This paper aims to contribute to this end, setting the stage for further research, by offering a multidisciplinary analysis of the RFoT’s scope, relation to other rights, practical significance and moral foundations.
doi: 10.1093/hrlr/ngac029pmid: N/A
The COVID-19 pandemic caused an old problem to resurface in international law and governance—the question of access to medicines. In the twenty-first century, it is not a new question since it was a hotly contested debate during the aids crisis in the late 1990s and early noughties. The debate then centred on the role of intellectual property rights in particular patents and whether patent protection should be loosened in such a way that countries most affected by the aids crisis could access Western patented medicines at a cheaper price or at least provisions for licensing to manufacture cheaper versions. Since the COVID-19 pandemic the world have been asking those questions again—under what conditions during a pandemic should access to medicine be a human right? Or, in other words, should intellectual property rights on patented vaccines be waived to give poorer countries access to vaccines and other essential medicines to curtail the pandemic? It is a debate that has divided the intellectual property legal community, advocates of human rights and other actors. In his book, Patents, Human Rights, and Access to Medicines, Oke brings back to forefront these questions and provocatively demonstrates how countries in Africa and India that are most affected can develop a model of human rights into intellectual property protection. Thus, for Oke, the answer to the conundrum about access to medicines and patents is a model of human rights that is a form of ‘right to health’ incorporated into ‘national patent law framework (24)’ and does not breach international legal obligations (p. 65). To address the model of human rights, Oke systematically addressed case litigations concerning patents in Kenya, South Africa and India along with international legal rules mostly on human rights and the right to health through seven chapters that ultimately concludes that international legal instruments such as the TRIPs Agreement and the Doha Declaration (2003) on Health ‘does not prohibit countries from incorporating a model of human rights into their national patent laws (165).’ This is a finding that will not sit favourably with the defenders of intellectual property protection even during a global pandemic such as COVId-19 nor will that finding in the opinion of this reviewer be fully defendable in commercial litigations in international tribunals on the breach of international patent laws per se. It is, however, a finding that help to make the case for temporary waivers for patented vaccines. To fully understand how Oke arrives at such findings, one must appreciate how the arguments were laid out in an accessible and argumentative analysis that is appealing to readers of all calibre. The introductory chapter is enlightening and will entice the reader to dig deeper into the book. It observes how the attempts by developing countries to ‘reclaim the patent space’ at the international level yielded only ‘marginal gains in the form of the confirmation of the flexibilities that are already contained in the TRIPs Agreement’ (p. 23). What this argument illustrates is that despite the existence of international rules on intellectual property, for developing countries, they have little leverage to influence the extent they can override patent protections during pandemics. Thus, Oke argues, inter alia, that: ‘Incorporating a model of human rights into a country’s patent law system will not only help to preserve the country’s patent policy space, it will also help to facilitate access to medicines’ (p. 29). The second chapter turns to theoretical justifications of patent rights and among other things suggests that socio-centric theories of intellectual property ‘can be used to design a country’s patent system’ (p. 52). Although it is difficult to grapple with the various justifications for intellectual property rights, the narrative of a socio-centric paradigm to patent regulations helps Oke to evade the established justifications for intellectual property rights which he skilfully navigated in the second chapter to contend the merits of a human rights model. The third chapter then focuses on international instruments on human rights and health protection. It inquires as to whether patents are human rights? The simple answer to that provocative question is a resounding no, and therefore the road is wide open for a model of human rights in domestic patent laws. Setting out three arguments that have been established by other authors, the subjugation, integrated and coexistence approaches (p. 73), Oke suggests that some rights that exists under international human rights such as ‘material and moral interests’ should not be conflated with patent rights. Thus, in an attempt to dismiss the idea that ‘intellectual property rights are not fundamental entitlements’ (p. 76), Oke may have set himself up constructing a notion of intellectual property protection that is subjective. Nevertheless, a valiant attempt was made to persuade the reader that the jockeying by States during the drafting process of the international human rights interests is perhaps the root of different misconceptions of what the international human rights instruments say about intellectual property. The fourth chapter introduces the first case study on Kenya where that country, ironically, made good use of the flexibilities in the TRIPS Agreement to maximise access to patent medicines. Nevertheless, the chapter looks at cases from the Kenyan courts were patent infringements had been alleged and suggests that intellectual property rights are not necessarily human rights (pp. 114–116). The fifth chapter examines cases from South Africa and the question of the right to health. Although the fifth chapter is brief when compared with the previous discussions in chapter four, it was not entirely clear in that chapter what were the boundaries between human rights, the right to health and patent rights. The fault in the chapter appears to be the level of analysis or perhaps because the South African discussions have been so well documented, presenting something new was perhaps a challenge. The sixth chapter focuses on India and how the model of human rights has been incorporated into Indian patent litigations. In the chapter, and following the pattern in previous chapters on Kenya and South Africa, Oke argues that India has had success in preserving its patent policy space and ‘facilitated greater access to essential medicines’ (p. 163). Part of the success in India, Oke argues, relates to how the model of human rights is invoked by denying injunctions to patent holders (p. 160) in the Indian courts. In the final chapter, the book then show how for example intellectual property rights is best seen as a socio-centric paradigm. The general consensus that Oke admits that exists for states to incorporate the model of human rights is that states can ‘insist on the primacy of human rights obligations’ in national patent laws (p. 165). There are two critiques of this book. The first is that the book did not address questions on COVID-19. Regardless of when the manuscript was completed, a book that was finalised during the COIVD-19 pandemic could have been updated with a chapter that treats the pandemic in a distinct way including questions on distributive justice. Nevertheless, the broader implications of the arguments in the book relate to pandemics such as COVID-19. The other criticism is that of constitutional rights. The book would have benefited from a dedicated section or chapter that grounds or compare some of the arguments in constitutional rights given that certain rights, such as the right to health is also a matter of constitutional protection. Furthermore, the developments in South Africa have also shown that there is constitutional nexus when discussion right to health and access to medicine. In the post COVID-19, world states are also actively looking to how constitutional provisions can enable them to guarantee access to patented vaccines in light of pandemic and the national security concerns pandemics may have on states. Thus, the book could have made an attempt to further enrichen the debate. Nevertheless, Oke has written a concise, practical and vivid book that policymakers, lawmakers and students should read. Furthermore, because of the model of human rights that run throughout the book—it is a practical and appealing solution to the difficult questions of access to medicine and as such it is a timely book. For those seeking to deeper their knowledge on the relationship of patents and human rights, it is a recommended book and contributes to the literature. © The Author(s) [2022]. Published by Oxford University Press. All rights reserved. For Permissions, please email: [email protected] This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model) © The Author(s) [2022]. Published by Oxford University Press. All rights reserved. For Permissions, please email: [email protected]
doi: 10.1093/hrlr/ngac027pmid: N/A
The article analyses the application of criminal-head guarantees to European Union legislation requiring Member States to lay down rules on administrative fines. EU legislation requiring Member States to stipulate administrative fines for breaches of EU law has been on a steady increase. The proliferation of such sanctions with little harmonisation of applicable procedural safeguards opens doors for misuses of punitive power. The first part of the article analyses the application of the Engel criteria and the Jussila exception for offences falling short of the hard-core of criminal law. The article highlights the discrepancies in the case law and suggests an alternative to the moral stigma approach in applying the Jussila exception. The second part of the article assesses whether the case law of the ECJ provides similar results and to which extent has the Union’s legislator harmonised or precluded procedural safeguards regarding administrative fines.
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