The Draft Convention on the Right to Development: A New Dawn to the Recognition of the Right to Development as a Human Right?

The draft Convention on the Right to Development is being negotiated under the auspices of the Human Rights Council. This article seeks to explore the merits and the added value of the draft in terms of its normative contents particularly compared with its soft law predecessor—the Declaration on the Right to Development. It argues that the draft is a momentous step in the recognition of the right to development as a human right not only because it is binding, if adopted, but also contains concrete, detailed and implementable norms. While it maintained the abstract and aspirational formulation of norms under the Declaration to a certain extent, the draft also addresses some of the prevailing gaps and limitations of the Declaration

Derogations to Human Rights during a Global Pandemic: Unpacking Normative and Practical Challenges

The derogation regime under international human rights law allows states to take measures that would otherwise be inconsistent with their human rights obligations in times of emergency of an extraordinary nature. Accordingly, several States have resorted to this prerogative to respond to the COVID-19 outbreak. In an effort to navigate the uncharted waters a global pandemic of this level of severity creates, States have taken emergency measures that have effectively altered life as we know it. These emergency measures have also highlighted the pre-existing and emerging normative gaps and practical challenges in international human rights law with regard to derogations. This article aims to identify and critically engage with these gaps and challenges

Speaking Crisis in the Eurozone Debt Crisis: Exploring the Potential and Limits of Transformational Agonistic Conflict

Agonism as a political theory emphasizes the ontological aspect of conflict in human political interaction. This article aims to shed light on the political practice of agonism – and in doing so on its limits – by viewing 'crisis discourse' as an agonistic political practice. As my analysis of the Dutch Socialist Party and the Freedom Party’s speech in the European Sovereign Debt Crisis shows, crisis discourse aimed to (re)create a ‘people’ and to justify radical change in economic and social structures. Crisis discourse is employed to construct an 'other' that can be based on ethnic and nationalist terms and to justify retroactive application of the law and the stripping of Dutch citizens of their rights. This attention to crisis discourse as an agonistic political practice highlights an unease within agonism itself: where must the agonist accepts limits to the conflict and contestation she so values? The article starts with Chantal Mouffe's answer to this question - her insistence that legitimate conflict must always recognize the shared values of equality and liberty - and proceeds to show that Mouffe's view unnecessarily relies on a deliberative democratic desire for consensus. Other than Mouffe, I draw on Honig’s emphasis of perpetual contestation to propose that the issue of limits can be best answered by reference to the core of agonistic thought: the preservation of the struggle over political norms and processes. It is not shared values or even a shared political space that matters, but that the political space of the ‘people’ – however contested membership therein might be – remains a place that the 'other' can re-enter

The Draft Convention on the Right to Development: A New Dawn to the Recognition of the Right to Development as a Human Right?

The draft Convention on the Right to Development is being negotiated under the auspices of the Human Rights Council. This article seeks to explore the merits and the added value of the draft in terms of its normative contents particularly compared with its soft law predecessor—the Declaration on the Right to Development. It argues that the draft is a momentous step in the recognition of the right to development as a human right not only because it is binding, if adopted, but also contains concrete, detailed and implementable norms. While it maintained the abstract and aspirational formulation of norms under the Declaration to a certain extent, the draft also addresses some of the prevailing gaps and limitations of the Declaration

The human rights turn in climate change litigation and responsibilities of legal professionals

Climate change is already being felt around the world, impacting a range of human rights including ultimately the right to life. While a healthy environment is a pre-condition for the enjoyment of rights, the environment is not mentioned in the foundational human rights document – Universal Declaration of Human Rights – nor is it specifically protected in subsequent international human rights treaties. This artificial division is partially a function of the separate development of international human rights and environmental law in the last century, which today needs urgently to be bridged. Progress is slowly being made, such as the 2021 Resolution recognising the right to a healthy environment by the UN Human Rights Council and the various petitions being lodged before human rights bodies. This column discusses the (long overdue) recognition of the human rights/environment nexus and the subsequent human rights turn in climate change litigation. In light of the challenges still faced when addressing the impacts of climate change under human rights law, we engage in (self-)reflection on the professional responsibilities of judges/decision-makers, lawyers, and scholars as active participants in the development of the law as well as the struggle for climate justice. We urge these legal professionals to be aware of the power they have in shaping these developments, and discuss how their role can be performed responsibly

Contestation of Kosovo’s Statehood from Within: EULEX Judges Adjudicating Privatization Matters through ‘Status Neutrality’

Kosovo’s statehood has been contested by foes as well as friends. Much is known about the former and less about the latter. This contribution explores the contestation of Kosovo’s independence by the judges of the European Union Rule of Law Mission in Kosovo (eulex) working on privatization matters before Kosovo courts. As put by the Constitutional Court of the Republic of Kosovo (kcc), eulex judges working on privatization matters, “simply continued to ignore the existence of Kosovo as an independent State and its legislation emanating from its Assembly”. The kcc stated this after eulex judges working on privatization matters had refused to respect Kosovo laws and institutions subsequent to the 2008 Kosovo Declaration of Independence. This paper explores the judicial dialogue on Kosovo’s independence between eulex judges and the kcc and identifies the limitations and risks of the ‘status neutral’ policy applied by international organizations to collaborate with Kosovar institutions without prejudging its political status. This submission suggests that ‘status neutrality’ leads to either acceptance or contestation of Kosovo’s statehood and thus brings more uncertainty than clarity to Kosovo’s position in international relations

The Right to Life in the Mothers of Srebrenica Case: Reversing the Positive Obligation to Protect from the Duty of Means to that of a Result

In July 1995, Bosnian Serbs killed between 7,000 and 8,000 Bosniac1 males in a matter of days. This took place in and around the region of Srebrenica, which ironically was designated a ‘safe area’ by the United Nations (‘UN’). At the time, the Dutch armed troops were on the ground in Srebrenica in a UN mission to establish peace. In the Mothers of Srebrenica case the Dutch courts had to decide whether the Dutch troops on the ground had failed to ensure the right to life and prohibition of torture of thousands of Bosniac males. In 2019, the Dutch Supreme Court found that, if the Dutch troops had allowed (only) approximately 350 Bosniac males to remain in their compound, those victims would have had 10% chance of survival. Nevertheless, the Court found the Dutch troops’ other actions, including the alleged failures to protect other victims in Srebrenica and to report war crimes to the UN, and the Dutchbat involvement in separation of Bosniac males, who were handed over to Bosnian Serbs, to be lawful. In this paper, I argue the Dutch Supreme Court reversed the test of positive obligations under Articles 2 and 3 of the European Convention on Human Rights (‘ECHR’ or ‘Convention’) from the duty of means to that of a result and failed to diligently examine the decision-making, planning and operations of Dutchbat to determine whether, at the time, the State authorities had done all they could have reasonably done to protect or, at the least, minimise the risk to life

Seksediscriminatie onder artikel 14 EVRM: over principes, pragmatisme en problemen

Dit artikel analyseert de seksediscriminatiejurisprudentie van het Europese Hof voor de Rechten van de Mens (EHRM) uit de periode 2012-2019. De jurisprudentie is niet consistent. Het artikel betoogt dat er geen overeenstemming binnen het Hof bestaat over de onderliggende doelen en concepten van artikel 14 EVRM. Het Hof is met name verdeeld over de vraag in hoeverre het meer principieel op moet treden tegen gender-stereotyperingen, vooral in gevallen waarin een maatregel vrouwen lijkt te beschermen