Medical-related expulsion and interpretation of article 3 of the European Convention on Human Rights

This article critically reviews the jurisprudence of the European Court of Human Rights (‘the Court’) in cases of expulsion of non-nationals receiving medical care for a serious health condition, based upon Article 3 of the European Convention on Human Rights. On only one occasion has the Court found a violation of Article 3. To date, critique of this jurisprudence has focused on two points: policy considerations evident in the case-law, and the Court’s refusal to find a violation in respect of applicants not in a terminal phase of illness. This article begins from an alternative perspective. It observes that the Court, whose approach has been mirrored by applicants and domestic courts, has not transparently situated the alleged inhuman or degrading treatment within circumstances of medical-related expulsion; a feature that is unique within the wider body of Article 3 jurisprudence. The extent to which recognising this atypical aspect can shed new light upon the past and future trajectory of the case-law is explored. Three ways of situating the Article 3 harm are considered: inhuman/degrading treatment brought about by sources within the receiving state; inhuman/degrading treatment inflicted by the expelling state; and inhuman/degrading treatment flowing from illness. It is argued that more explicit engagement with the nature of the alleged harm would be a progressive step towards a richer and appropriately justified jurisprudence. This is important for the reasoning of the Court in medical-related expulsion cases and, more broadly, for the development of the conceptual scope of Article 3

Interpretation of the prohibition of torture : making sense of 'dignity' talk

The right not to be subjected to torture, cruel, inhuman or degrading treatment or punishment is invariably associated with ‘human dignity’. The idea of dignity plays some role in this right’s interpretation, although the content of the idea in this context, as in others, is unclear. Making sense of the dignity idea involves a number of challenges. These challenges give rise to the methodological-type question at the heart of this article: how should human rights lawyers go about articulating the content of ‘dignity’? The article proposes, and models, a methodological approach in response. Its core argument is that human rights law needs the vocabulary provided by theorizations of dignity, but that these theorizations should be anchored in authoritative human rights jurisprudence. It argues that this approach can help make sense of the dignity idea in a way that facilitates a richer understanding of its influence on interpretation

Realising international human rights: Scotland on the global stage

Editorial to Special Issue of the International Journal of Human Rights

Exploring the prohibition of degrading treatment within article 3 of the European Convention on Human Rights

This thesis addresses the meaning and scope of application of the right not to be subjected to degrading treatment, a distinct form of harm within the absolute prohibition of torture, inhuman or degrading treatment or punishment under Article 3 of the European Convention on Human Rights. Through an interpretive case-law analysis, the thesis presents a deeper conceptual understanding of the meaning of degrading treatment than is found in existing human rights literature. It is a central argument of this thesis that the concept of human dignity occupies a key position in the interpretation of degrading treatment adopted by the European Court of Human Rights. Consequently, it is argued that the meaning of human dignity in this context ‘frames’ the potential boundaries of the right. The thesis aims to facilitate identification of situations that may convincingly be argued to amount to potential instances of degrading treatment through generating a richer appreciation of the right’s proper scope of concern. A comprehensive account of the meaning of degrading treatment and corresponding state obligations is offered. This account provides a framework for future application of the right that is both practical and plausible

The Underpinning Concept of 'Human Dignity'

This briefing paper is one of a series written by the Academic Advisory Panel to the National Taskforce for Human Rights Leadership, which was established in 2019 in response to the recommendations made in December 2018 by the First Minister's Advisory Group on Human Rights. The aim of the briefing papers is to consider some of the legal complexities involved in translating international human rights treaties into domestic legislation

Localising human rights law : a case-study of civil society interpretation of rights in Scotland

Literature, most notably in anthropology and international law, has explored experiences and contributions of local-level actors in efforts to realise international human rights. This article contributes a new and complementary perspective to one aspect of this scholarship, on the localisation of international rights language. It focuses on the localisation of legal language in a European context. It explores claims by civil society actors about the applicability of legal human rights standards, drawing upon data generated during the participative mapping process that underpinned Scotland’s first National Human Rights Action Plan. The article provides a qualitative case-study of engagements with three particular rights – the right to life, the right not to be subjected to inhuman or degrading treatment, and the right to respect for private and family life. It finds significant evidence of civil society actors using the language of human rights law to anchor interpretive claims about how the rights should apply, in a way that is prescribed, but not defined by, authoritative institutional interpretations. The case-study reveals how interpretive engagement with human rights law corresponds to a sense of entitlement to use the language of international human rights. It thereby contributes to a richer understanding of the drivers of, and risks to, local-level ownership of human rights language, highlighting insights for both scholarship and human rights advocacy

Transformative capacity building around a right to a healthy environment : what role for dignity as a human rights value?

For decades, scholars have explored the potential merits and risks of a formal, self-standing human right to a healthy environment. While some have advocated this right in a way that may be perceived as too 'thin' to connect to local experiences, others have critiqued it in a way that may be perceived as too disconnected from the benefits of human rights processes. In this article we discuss ongoing experiences in Scotland, where a new national human rights framework is being developed. Drawing on this experience, we highlight methods of capacity building as a different channel for thinking about the potential merits of new articulations of a right to a healthy environment, and for developing understandings of this right's substance applied to specific contexts. Specifically, we reflect on the potential role of the foundational human rights value of respect for dignity as an anchor in capacity building around the right to a healthy environment. We explore an idea of capacity building which facilitates local-level ownership over international human rights law and underpinning values and is focused on implementation. We suggest that this kind of ethos as part of mutual learning and alliance building should be further explored as a means of creating lasting, positive engagement with a rights-based perspective on environmental protection

Thirty Years On: Reflections on Haydn’s “Farewell” Symphony by James Webster

It has been just over thirty years since James Webster published his influential monograph Haydn’s “Farewell” Symphony and the Idea of Classical Style: Through-Composition and Cyclic Integration in His Instrumental Music (Cambridge University Press, 1991). To honor the anniversary of Webster’s groundbreaking book, the Encounters with Eighteenth-Century Music: A Virtual Forum steering committee asked L. Poundie Burstein, Elaine Sisman, and W. Dean Sutcliffe to offer perspectives on the book, and James Webster to respond to their perspectives. The interesting online session occurred on Tuesday, October 18, 2022, and included a lively open discussion following the presentations and Webster’s response. The three presenters and Webster graciously consented to publish their perspectives and response in this article to inaugurate the 2023 “Farewell” volume of HAYDN: Online Journal of the Haydn Society of North America