Does the Osman Test Go to School? Recent Developments Concerning States’ Positive Obligations to Protect Children in SchoolLeisure, Patrick
doi: 10.1093/hrlr/ngae024pmid: N/A
ABSTRACTIn light of the recent Biba v Albania case, this article takes a closer look at states' positive obligations to protect children in school. It tracks a distinct divergence in judicial preference for how positive obligations apply in the school context and illustrates how the Strasbourg Court has inconsistently invoked and applied the Osman test in schooling cases. Recommending that the Strasbourg Court clarify in future case-law the Court's positive obligations doctrine on states to protect children in school, the article concludes with a reflection and a recommendation, based on Judge Tulkens' concurrence in Kayak v Turkey, regarding the Strasbourg Court's role in this important area.
Is the Obligation Not to Refoule a Positive Obligation? An Intermediate Approach Toward the Classification DilemmaKatsoni, Spyridoula
doi: 10.1093/hrlr/ngae027pmid: N/A
ABSTRACTAlthough the distinction of international obligations as positive or negative ones is well-established in international law, the classification of the obligation not to refoule has given rise to a disagreement in relevant academic writings. The present article contributes to this academic discussion by arguing for an intermediate position, whereby the obligation not to refoule is perceived as a mixed obligation, which is comprised of both negative and positive obligations. Doing so, the article outlines the series of positive and negative obligations that have been identified as stemming from non-refoulement and further evinces that the intermediate approach toward the obligation’s classification better corresponds to the recent scholarly and jurisprudential developments, embraces non-refoulement’s peremptory character, allows a consistent classification of the obligation in all fields of international law and enhances the overall protection that may be afforded to protection-seekers under non-refoulement by ‘hardening’ the obligations that are interpreted as stemming therefrom.
The Institutional Guarantee of the Human Right to ScienceBesson, Samantha
doi: 10.1093/hrlr/ngae023pmid: N/A
ABSTRACTThis article identifies and specifies the institutional guarantee of Article 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights’ human right to science and, on that basis, argues for the consolidation of an international law of science. Its contribution may be described as threefold. First, it argues that science should be understood as a public and common good and, more specifically, as a public participatory good in a non-instrumental notion thereof. On that basis, second, the article argues for the collective dimension of the human right to science qua right to a participatory good, specifying what that dimension entails in terms of both individual (collective and personal) scientific rights and group or communal scientific rights. Finally, the article argues for the positive obligations of States to adopt norms of domestic and international law of science and the corresponding domestic and international law statutes of scientific institutions.