Category Archives: Institutions

Process-based fundamental rights review: what about the applicant?

L.M. (Leonie) Huijbers

Afb blog Leonie

What if you see a runaway train moving toward five people tied-up on a track. Would you pull a lever to redirect the train to another track? Yes, of course. No doubt about it. But what if there was another person tied-up on the other track? The decision whether to pull the handle or not becomes inevitably harder. This famous philosophical conundrum applies in a similar, yet – fortunately – less gruesome way, to the European Court of Human Rights. The backlog in cases, the failure of states to implement the Court’s judgments, the increasingly harsh (political) criticism on the Court, and the shortage of resources have put a strain on the proper functioning of the European Convention on Human Rights’ system. This has given rise to the question of whether the Court should continue to provide justice to each applicant, possibly at the cost of the Convention system (track one), or whether it should focus on providing general justice, by ensuring justice for as many individuals as possible, even when it may come at the cost of the applicants before the Court (track two). This dilemma between individual and general justice is also relevant for the Court’s recent procedural turn… Continue reading

“Practically unimportant”? A poor excuse or well-executed sarcasm? — On China’s constitutional amendment removing the limitation on the President’s term of office

Shuai Zhang in response to a previous blog post by Cong-rui Qiao

chinese constitutionThe National Congress of China has recently passed a highly controversial constitutional amendment removing the limitation on the President’s term of office. Consequently, it is no longer limited to two consecutive terms. While some consider this amendment as a step towards dictatorship, many are seemingly trying to interpret it in a more sympathetic way. A very popular discourse regards the change merely as a “practically unimportant” technical fine-tuning. Ironically, this argument is roughly supported by two rival groups. This blog elaborates why neither of these groups is right in labelling such a change as “practically unimportant”, and argues that the constitutional amendment is in fact very important. Continue reading

‘Every Organ of Society’: Exploring the Role of Social Institutions in the Effective Implementation of International Human Rights Law

Julie Fraser

ThiEleanor_Roosevelt_and_Human_Rights_Declarations blog was written by Julie Fraser who will defend her PhD at Utrecht University on 31 May at 10.30am.

This year we celebrate the 70th anniversary of the Universal Declaration of Human Rights (UDHR). This document continues to represent a landmark achievement of the international community. Since 1948, much progress has been achieved, with numerous human rights treaties and instruments adopted nationally, regionally, and internationally. Despite this momentum, human rights continue to be violated in all states around the world, revealing the gap between law and practice. The challenge of implementation – of making legal norms a lived reality – is now most pressing. How to address this challenge was the focus of my PhD research completed earlier this year. This research focused on criticisms of state-centricity in international human rights law, as well as its tendency to take a legalistic approach to implementation. Identifying the shortcomings of state-centric legalism, my research proposed involving informal social institutions the domestic implementation of human rights due to their cultural embeddeness and ability to guide human behaviour.

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Constitutional Amendments to China’s Presidency and Supervisory Commissions

China_State_Visit_(21706073543)Cong-rui Qiao

This blog is the first in a series on the amendments to the Chinese constitution. 

This blog is about an important affair in today’s China: the set of 21 amendments made to China’s Constitution in March 2018. It will interpret the political and practical implications of two high-profile amendments: 1) the constitutional change to the term limitation on the Presidency, which is the head of State; and 2) the constitutional inception of the State Supervisory Commission (“SSC”), which is the highest national supervisory body. It will do so in two dimensions. One is a textual reading of what has been amended in the Constitution. The other goes beyond textual aspects, explaining what changes these alterations imply. Where possible English translations to the text have been provided in the links. Continue reading

The Proof is in the Pudding: The Value of Traditional Justice Mechanisms for Post Conflict Africa

justiceThe dynamics of contemporary conflicts reveal the difficulties inherent in countries transitioning from conflict to peace and has given birth to transitional justice. The latter is the field of study where justice is not relegated to criminal or retributive justice only but to a holistic range of processes, the ambit of which includes accountability, truth recovery and reconciliatory processes.  Kofi Anan former UN Secretary General defines transitional justice as the “ full set of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuse, in order to secure accountability, serve justice and achieve reconciliation.”  In keeping within these processes and within this framework, particularly with regard to Africa, there has been resurgence in the use of traditional or local justice mechanisms.  In this blog I will thus briefly attempt to highlight the political contingencies that certain states face, which catalyze the use of traditional justice mechanisms and make it so popular within the African transitional justice landscape. I will contend that in some instances traditional mechanisms can adequately address massive human rights violations and establish peace and reconciliation in post-conflict settings. I suggest that the value of traditional justice within politically laden contexts is that they act as catalysts for the promotion of unity. They draw on cultural and religious linkages of interconnectedness that are of value to many African societies, such as the way in which ubuntu was ingrained in the TRC process and the traditional strands of Gacaca conformed into a modern version of Gacaca. This therefore, arguably creates a more “culturally familiar and socially secure” space for people to participate in.   Continue reading

Why is a legal “case” literally called a “desk” in Chinese?

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Sjaak Zhang

Trials in China largely consist of written documents collected in a dossier rather than in oral debates. This perception and administration of (criminal) justice is deeply entrenched in China’s legal culture, which can be well illustrated by China’s peculiar terminology on (criminal) trial.  Continue reading

Procedural review: a solution for the European Court of Human Right’s problems?

ECHRJanneke Gerards

Human rights cases often concern politically sensitive matters. An example is the case the European Court of Human Rights decided two weeks ago on the Beslan hostage taking drama. In 2004, about 800 children and 300 of their parents were taken hostage in a school in Beslan, Russia, and were held in the school building under very harsh conditions. Several of the male hostages were executed in full view of the children. After unsuccessful negotiations with the hostage takers, the authorities decided to storm the school and end the siege. Much is unclear about what happened, but some powerful explosions occurred, killing dozens of people, and a fire broke out, which killed even more children and their parents. Over 330 people lost their lives and hundreds more were wounded. Not satisfied with the way in which the authorities responded to the occurrences, some of the victims and their relatives approached the European Court of Human Rights and asked it to examine if the Russian authorities had done enough to protect their lives and safety. Given the context of terrorism and civil strife in the North Caucasus, the case was of tremendous political sensitivity. Moreover, the facts were disputed and it was far from clear who should be considered to bear primary responsibility for the killing of so many children and their parents – the terrorists or the Russian authorities. Clearly, thus, this is an extremely hard case for the European Court of Human Rights to decide, and the question may arise what approach it should choose in dealing with it. Continue reading

The Rainy Season in Java: Researching the Role of Islamic Law and Institutions in Promoting Women’s Right to Family Planning in Indonesia

blogFraserJulie Fraser

Six weeks of melting humidity, spicy food, tropical vegetation, and endless traffic. I was in Indonesia to research how women’s reproductive rights and family planning are protected, with a particular focus on the role of Islamic laws and institutions. This is a complex topic, requiring expertise in matters of women’s rights, public health, demographics, and Islamic law. My visit to Indonesia was part of a crash course in all these fields – a type of sink or swim scenario. My experience there highlighted the role of non-state actors in the promotion and protection of human rights, and the need for domestic constituents working within their communities to secure such rights. I chose Indonesia as my case study as it is the largest Muslim state in the world, has strong plural legal systems and Islamic institutions, and has faced barriers in promoting and protecting women’s reproductive rights. As it turned out, Indonesia was an excellent choice, and a good teacher.

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Unity of law in the application of the duty of consistent interpretation?

Sim Haket

This blog considers whether unity of law should be strived for in the EU law remedy of the duty of consistent interpretation and, if so, how this could be achieved. I explain why it is necessary to differentiate between the national and the EU level when addressing this question. I argue that unity of law is not a pie in the sky on the EU level but that, on account of differences in the national methods of interpretation, the degree of unity will probably not be the same on the national and the EU level. To conclude this blog, I suggest three ideas to achieve a high degree of unity in the application of the duty of consistent interpretation on the national level, and that the Dutch could perhaps learn something from the Germans in this respect.
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Duality or Complementarity?The Political and Legal Orientations of the Chinese Petitioning Mandate

china_administrative_claimed_included-svgCong-rui Qiao

On 14 September 2016, the Chinese State Bureau for Complaint Letters and Visits (“Bureau”) in Beijing saw 24 lawyers providing legal advice for the petitioners. This was the first experiment of the joint-program between the Ministry of Justice and the Bureau, which aims to resolve litigation-related petitions. With much attention given to the ongoing reforms, this blog offers a brief analysis on the major characteristics and challenges of the Chinese petitioning system. Continue reading