Applying the Definition of Torture to the Acts of Non-State Actors: The Case of Trafficking in Human Beings

The question of whether the prohibition of torture and other ill-treatment extends to the acts of non-state actors continues to reflect a contentious issue in international human rights law. Through one of the most recent and under-analyzed manifestations of the debate, this article explores the extent to which the prohibition applies to trafficking in human beings. In doing so, it provides an analysis of the inherent limitations of the prohibition as applied to the acts of non-state actors, as well as suggesting possibilities for extension of the scope of the prohibition through the principle of due diligence. By defining the parameters in this way, this article submits that victims will receive more concrete protection, as opposed to assertions that trafficking constitutes torture on the basis of the severity of the act and attraction to the special stigma of the label alone

Looking to the Future: The Scope, Value and Operationalization of International Human Rights Law

The international human rights system of which international human rights law (IHRL) is a part has been critiqued for being ineffective, too legal, insufficiently self-critical, and elitist, with some claiming that it self-generates some of the challenges it faces. This Article challenges this presentation of IHRL and in doing so, sets out three priorities for its future development. These are first, that it should continue to engage in critical analysis of how IHRL can effectively respond to the complex and multifactorial challenges it faces. Second, rather than refrain from developing due to critiques of overexpansion, IHRL should prioritize the articulation and adaptation of how IHRL applies to groups who struggle to enjoy their rights in practice and to new contexts and global challenges, such as artificial intelligence. Third, it should develop and deepen the methodology to the operationalization of IHRL further to ensure that it embeds within the agendas of key actors that can bring about change, including across state agencies as well as within businesses and social movements

Should National Human Rights Institutions Institutionalize Dispute Resolution?

The UN has promoted the use of alternative dispute resolution (ADR) by national human rights institutions (NHRIs). This article critically examines this proposition by analysing the three assumptions that underlie it. First, that ADR is an appropriate means by which to resolve human rights disputes; second, that ADR should be provided in institutional form; third that an NHRI should play a role in the delivery of ADR. We argue that voluntary engagement with ADR is permissible subject to procedural and substantive standards of justice but identify the risk that the offer of ADR by an institution may turn into a de facto mandatory process if not set within a context in which the courts are also accessible. Rather than an outright rejection of a role for ADR in such circumstances, we examine the potential contributions an institution could make to redressing the deficiencies in access to justice landscape and identify the key factors states and other policymakers should take into account when determining which institution(s) assume a dispute resolution role

Accountability for Governance Choices in Artificial Intelligence: Afterword to Eyal Benvenisti’s Foreword

A growing body of literature examines how to make the use of new and emerging technologies more transparent and explainable as a means to ensure accountability for harm to human rights. While a critical part of accountability, a predominant focus on the technology can result in the design and adaptation of accountability principles to ‘manage’ the technology instead of starting from an assessment of the governance choices actors make when integrating new and emerging technologies into their mandates. Recognition of the governance choices underpinning the introduction of new and emerging technologies is often overlooked in scholarship and practice. Yet, without explicit recognition of the role played by technology in governance, the disruptive effects of technology on (global) governance may be underplayed or even ignored. In this response, I argue that if the ‘culture of accountability’ is to adapt to the challenges posed by new and emerging technologies, the focus cannot only be technology-led. It must also be interrogative of the governance choices that are made within organizations, particularly those vested with public functions at the international and national level

Alternative Dispute Resolution and Human Rights: Developing a Rights-Based Approach through the ECHR

The presumption that courts are the principal forum for dispute resolution continues to be eroded. Alternative forms of dispute resolution (ADR), including agreement-based ADR (such as mediation and conciliation) and adjudicative ADR (such as arbitration), continue to proliferate and are increasingly institutionalized, leading to their characterization as ‘appropriate’ or ‘proportionate’ dispute resolution. Interestingly, despite these developments, the position of international human rights law (IHRL) on two key questions regarding ADR and proportionate dispute resolution (PDR) is unclear. These questions are, first, the standards of justice expected of ADR/PDR (whether entered into voluntarily or mandatorily). Second, the permissible circumstances in which parties to a dispute can be required to use ADR/PDR instead of, or before, accessing courts. The attributes and challenges with ADR/PDR have been discussed extensively in socio-legal studies, feminist literature and the dedicated ADR/PDR literature. This article seeks to bring this vast theory on the diversification and institutionalization of dispute resolution into IHRL. Through the lens of the European Court of Human Rights, this article examines the types of tests that supranational bodies currently employ and advances a framework for assessing the choice, design and implementation of ADR/PDR in the future

International human rights law as a framework for algorithmic accountability

Existing approaches to ‘algorithmic accountability’, such as transparency, provide an important baseline, but are insufficient to address the (potential) harm to human rights caused by the use of algorithms in decision-making. In order to effectively address the impact on human rights, we argue that a framework that sets out a shared understanding and means of assessing harm; is capable of dealing with multiple actors and different forms of responsibility; and applies across the full algorithmic lifecycle, from conception to deployment, is needed. While generally overlooked in debates on algorithmic accountability, in this article, we suggest that international human rights law already provides this framework. We apply this framework to illustrate the effect it has on the choices to employ algorithms in decision-making in the first place and the safeguards required. While our analysis indicates that in some circumstances, the use of algorithms may be restricted, we argue that these findings are not ‘anti-innovation’ but rather appropriate checks and balances to ensure that algorithms contribute to society, while safeguarding against risks