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Human Rights under Threat

Essays on Current Issues in International and European


Human Rights Law
Stefan Kirchner

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The texts in this document have been published online at rladi.com in


2014 and 2015.
They are combined here for the first time and made available free of
charge at scribd.com.

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How the International Community is Breaking the Promise of


Human Rights: A Look at the Nuba Mountains and Beyond
Nicholas Kristof and Adam B. Ellick of the NY Times have produced an
important and powerful film of less than 10 minutes about the ethnic
cleansing in Sudan. Just east of Darfur and north of South Sudan,
where an other war rages a young nation, ethnic cleansing happens
every day in Nuba mountains.
http://www.nytimes.com/2015/07/13/opinion/the-worst-atrocity-youvenever-heard-of.html?_r=0
See

also

these

texts

from

June:

http://www.nytimes.com/2015/06/21/opinion/sunday/nicholas-kristofa-rain-of-bombs-in-the-nuba-mountains.html?rref=collection
%2Fcolumn%2Fnicholas-kristof

and

http://www.nytimes.com/2015/06/28/opinion/sunday/nicholas-kristofhes-jesus-christ.html

as

well

as

the

blog

by

Nicholas

Kristof

http://kristof.blogs.nytimes.com/2015/06/27/how-to-help-dr-tomcatena/
A few years ago the international legal community was talking a lot
about the responsibility to protect and the idea has been mentioned
in UN SC Resolutions, including on Sudan, but very little has come
from it. There might be a sense of being overwhelmed, the notion that
no single state can solve all problems overnight, such as the threat by
the Islamic State, Syria, Sudan, South Sudan, to name but a few.
Paper is cheap but unless own national interests are threatened, we
are unlikely to see European troops on the ground to protect people in
Africa against being displaced, raped or murdered. Rising numbers of
refugees are met with heroic efforts by aid organizations, seamen and

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navies in the Mediterranean but also with xenophobia and tougher


immigration laws in rich countries in the European Union.
Over the last months there has been a movement in the United States
shouting out that Black lives matter. In Europe, the lives of those
who live next door in the Middle East and Africa still seem to matter
only when they make it to the shores of Europe and even then (as
recent events on Lesbos show), they seem to matter very little.
Every life matters. A child born in poverty in Africa has the same right
to life as I have. If the developed world is to take human rights
seriously on a global scale, it is time to take protective action. The
people of Sudan, Syria, Iraq, the people of Honduras and El Salvador,
everybody, we all have the right to live in peace and security. If there
is truly a global community which deserves the name, then we all
have the obligation to take every action we can take in order to make
this promise of human rights a reality for everybody. It is time to put
R2P back on the agenda by implementing it. This might not be
popular domestically but it is essential if the international community
wants to uphold the promise of human rights and its own credibility.

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Discrimination against Children based on Parental Marital


Status in Finland
Under Finnish law, not all children born in the country automatically
acquire Finnish citizenship. Rather than the place of birth (as is the
case e.g. in the United States), Finnish law looks at the citizenship of
the parents in order to determine the nationality of children. This is
not that unusual in itself, but Finnish law makes a distinction which
discriminates against some children in a way which is not compatible
with Finlands international obligations, for example under the
European Convention on Human Rights (ECHR).

If the childs mother is Finnish, the child will always be Finnish. This
seems to be a remnant of the old Roman law principle mater semper
certa est, i.e., the mother is always known. Things start to become
tricky, indeed illegal under the ECHR, when the father is concerned
because having a Finnish father does not guarantee the child Finnish
nationality. Finnish law makes a distinction based on the marital
status of the parents. If the parents are married, the child will be a
Finnish citizen, if not, the child has to be born in Finland in order to
acquire citizenship.
Such a discrimination against children based on the marital status of
the parents is incompatible with the ECHR, specifically Articles 8 and
14 ECHR. It is more than surprising that Finnish law is still maintaining
such a distinction more than 35 years after the landmark case of
Marckx v. Belgium in which the European Court of Human Rights
found that states may not discriminate against what was then
referred to as illegitimate children. The marital status of the parents
must not have any effect on the legal status of the child and the
Finnish law in so far violates fundamental rights of the child.

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Germanys new Alien Residence Law: Predictable Disaster.


Again.

On 2 July 2015, Germanys parliament adopted a new law which will


change the legal situation of foreigners, especially from non-EU
countries, dramatically. The law will make it easier to deport
foreigners who are lacking a legal status and it will essentially make it
possible for the authorities to arrest and detain everybody who enters
Germany on land in search of asylum.
But Germany is not alone in toughening its stance on immigration,
similar, and even stronger, efforts can be seen in countries such as
Switzerland, Denmark or Hungary. There seems to be a tendency of
those who are rich today to view life as a zero-sum game and to try to
defend what they have against those who are thought to want to take
something away from them. What is not seen is that newcomers
actually contribute to the overall wealth of a nation and open borders
can be beneficial for everybody. If you do not believe in the benefits of
open borders just look at Greece and the effects the limitations
imposed on transferring money abroad has had on Greek businesses
(including health care!) in just a few days.
Neither is this the first time that German lawmakers have reacted to
an increase in the number of refugees with tougher legislation. 2015
sees, if not a repeat, then at least a reminder of the law reform
enacted in 1993 as many who fled the wars in the former Yugoslavia
fled to Germany in search of safety.
On the other hand will the new rules make some things a bit easier for
desired immigrants, i.e. those who already have special skills which
are sought after in Germany. When calculated based on the more

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realistic basis of the overall population, i.e. newborn children per


resident, rather than newborn children per woman of childbearing
age, Germany has the worlds lowest birth rate. Its aging society is in
urgent need to people who are willing to work in Germany. At the
same time is the country closing its doors to many and fails to attract
those who can also find work in English-speaking countries. The same
happened after the European Union grew eastward in 2004 and
Germany took as much time as possible before it really opened its
borders to EU citizens from the new member states to the East. This
resulted in a brain drain from countries like Poland or Lithuania to the
UK and Ireland and to lost opportunities for Germany. Rather than
giving everybody who wants to work a chance to live in Germany and
work on providing a better future for their families, successive
German governments, led by both major political camps, have
provided a disservice to both Germany and those interested in it. The
value of a human being is not based on his or her education, age,
gender or other status. Helping refugees is a question of basic human
decency (not to mention international law and human rights), not
opening doors to those who actually want to work is simply a long
term error the price of which will be paid by future generations. 1993
was senseless, 2004 was a lost opportunity but there is no need to
repeat the same mistake again in 2015. Unfortunately, this is exactly
what happened in the German parliament this summer.

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The Beauty of Free Speech


In late May 2015, it was reported that the current Miss Russia, Sofia
Nikitchuk, a student at a university in Yekaterinburg, has been
interrogated for participating in a photo shooting which led to photos
for the cover of a glossy magazine. Ms Nikitchuk is wearing material
which resembles the Russian flag. From a report on the German
website spiegel.de it appears that she has been interrogated in
context with accusations of desecrating the Russian flag. The fact
that this is even an issue in Russia is troublesome. While a number of
states have flag desecration laws, it must not be forgotten that they
have to justify infringements with free speech. In is particularly true in
the context of the right to freedom of expression under the European
Convention on Human Rights, the material scope of which is very
wide. Also shocking statements and publications are protected under
Article 10 (1) of the Convention. Interrogating somebody after such a
publication has been made can contribute to the creation of an
atmosphere of self-restraint and fear. This is even more so since the
freedom of expression has already come under more pressure e.g. in
Russia and Turkey, in recent years. Russia has to provide a
justification under Article 10 (2) ECHR for such limitations of the
freedom of expression and from the publicly available information
there is nothing to indicate that this would be possible. Free speech
and a free press are essential in a democratic society, on all levels
and in all forms. It is essential to defend this right. If anybody is
desecrating the Russian flag (which assumes that a national flag is
something sacred in the first place, which seems rather doubtful)
then it is those who wear it or have it fly in front of their offices in
Moscow and elsewhere while they are committing crimes against
innocent people, Russians and foreigners alike. Russia is an important
member of the European family, the source of great cultural

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contributions and the people of Russia have the right to live in


freedom and democracy and to enjoy respect for all of their human
rights.

Access to Health Care for Undocumented Migrants in Finland


and Sweden from the Perspective of Human Rights
Due to its geographic location, widespread opposition to immigration
among large parts of the local population and of course the language
barrier, Finland is hardly a top destination for refugees. But there are
cases of undocumented immigration. While the situation for many
refugees is already very difficult, immigrants who are lacking the
required paperwork are at risk of falling into a kind of black hole. Fear
of

discovery

and

of

being

sent

back

(although

in

case

of

undocumented migrants who would also qualify as refugees, there is


the non-refoulement principle which has to be taken into account also
in

such

circumstances)

are

only

one

aspect

of

life

as

an

undocumented migrant. The other aspect is the fear of seeking


medical services. Many undocumented migrants are unwilling to see
physicians even if it were medically necessary because they want to
avoid all form of contact with any public institution. When it comes to
pregnancy or the health of children, though, it is essential that
medical services are accessible without fear.
As has been reported by the Red Cross already some time ago
(https://www.redcross.fi/news/20120927/undocumented-immigrantsright-health-services-finland-needs-improvement),

Sweden

has

researched health care options for undocumented migrants and in an


model tested in Skane has been able to keep health care costs level
while improving the access to medical services for undocumented

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migrants. Access to health care is a universal human right and it is


not dependent on any kind of status. It is a right which has a strong
positive dimension and all states have to make sure that everybody
who needs medical attention also receives it. The Finnish system of
making undocumented foreigners pay for health care is likely to
prevent those who need help from seeking the help they are entitled
to. Finland therefore should implement the model which has already
been tested successfully in Sweden in order to protect the right to
health for everybody.

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Negative interest rates as a human rights problem?


In recent weeks, banks in the Eurozone have handed down the
negative interest rate imposed on them by the European Central Bank
(ECB) to savers. Essentially, it now is within the realm of the possible
that banks customers pay for the service of the bank storing their
money. Until now, the basic idea behind banking was that the bank
was better equipped than individual customers to make profitable
investments and that the bank pays interest and still makes a profit
based on the possibility to work with the clients money. The
expectation to receive interest for making money available to the
bank is no longer as valid as it used to be. As the money deposited
with the bank is the savers property, it is protected under property
rights.
That raises the question whether the EU is violating the human rights
of savers by lowering interest rates to the point that banks will charge
negative interest essentially, the customer pays the bank for the
service of keeping the money in the bank. This is a fundamental
departure from the way banks used to work. The idea that the bank
works with the money and is able to pay an interest therefore is a
thing of the past for at least some customers. While general
fluctuations in the macroeconomic situation are not human rights
issues per se, the active involvement of the ECB raises significant
questions. Having lived a large part of my life in West-Germany I am
still used to the idea of political independence of the central bank.
The ECB, though, might have its home in Frankfurt but it is not a
bigger version of the Bundesbank. If one accepts that the ECB is less
independent than the Bundesbank, a bigger role for politics becomes
visible. At some point, the question has to be asked on the EU level
which human rights obligations the ECB hast. So far it is not the ECB

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but the banks which cause costs to consumers, but the ECB does not
exist in a vacuum and human rights, too, are something that has to
be taken into account in the long run.

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Asylum Law in Germany: Moral Poverty in a Rich Country


Globally, the number of asylum seekers has reached a 20 year high
and already in March the leading German quality newspaper,
Frankfurter Allgemeine Zeitung, reported that, although other states
take in more asylum seekers per inhabitant, Germany now receives
173,000 asylum applications per year. This number is now thought to
reach 800,000 or even one million this year. Given that German
society is aging and that new citizens who are willing to work and to
make the country at the heart of Europe their home should be more
than welcome, the existing asylum law system in Germany is not
conductive to integration of asylum seekers.
A number of features stand out from German asylum law:
First of all, it is hard to be accepted as an asylum seeker. Many are
deported back to secure countries or to their countries of origin.
Secondly, the process takes very long. Indeed, the process takes so
long that teenagers who might have lived in Germany most of their
lives or who might have been born in Germany (unlike in the case of
e.g. the United States, being born in Germany does not guarantee
German citizenship) might face deportation to a country they do not
know regardless of how well they do in school or how well they are
integrated into German society. In some cases, the authorities have
allowed kids to finish school. Think of a 17 year old girl whos parents
fled some war-torn country with her when she was a toddler and who
is about to finish school in Germany and dreams of going to university
to become a physician, a scientist, an engineer or a teacher. She will
have no guarantee that she will be allowed to finish school, let alone
attend a university in Germany. A few years ago the nationalization

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law has been made a bit easier, but citizenship requires a regular
residence status. Many families of asylum seekers are merely
tolerated, meaning that they do not have a legal right to live in
Germany but the authorities temporarily refrain from deporting them.
How long such a status lasts is only in the hands of the authorities.
And what many asylum seekers do not know: as asylum seekers they
will not be allowed to work. They will spend their days in centers for
asylum seekers, an environment which often is not safe. They will not
be legally permitted to earn a living and to support their families but
will depend on small payments by the state which are hardly enough
to survive. They will be restricted to live in a specific area.
Finally, it must not be underestimated that there are parts of
Germany which are not welcoming towards asylum seekers. Indeed,
there have been violent attacks on asylum seekers in Germany.
Fortunately in many towns the local people are more welcoming and
many police officers do a good job protecting asylum seekers just like
other residents. But there is discrimination.
There is unemployment. There is despair.
Today, Europe tries to discourage potential asylum seekers from
coming to Europe in the first place and the asylum law in Germany
will hardly contribute to make asylum seekers feel at home in
Germany. This is a huge moral failure. Those who are forced to leave
their homes deserve our support. As a society, both Germany and
Europe in general can do better. It is morally essential to do better
and to see refugees as our neighbors and to treat them with the
respect every human being deserves, everywhere.
The Comeback of Natural Law

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In the early 20th century, as a result of enlightenment and a move


towards

anti-religious

societies,

positivism

became

the

ruling

approach to law. Law, essentially, was what was created by man.


Natural Law has long been seen as something outdated. This is not
the case: the renaissance of Natural Law after World War II might not
have brought it back to the same standing it enjoyed before and the
growing importance of treaties in international law during the last
decades might cast doubts on the importance of unwritten legal
concepts, Natural Law is about to make a major comeback. Earlier I
have argued in favor of a role for Natural Law in Biolaw (Stefan
Kirchner, Natural Law as Biolaw, in: 20 Jurisprudencija (2013), pp. 2339). But can Natural Law also be used in international law in general,
beyond these challenging biolegal questions? I believe that this is
possible and that this is indeed happening. In the past, this was not
much of a question as what we know today as international law was
still part of an other discipline: moral theology. The question of what
was right or wrong used to be asked directly of personal rulers, kings,
queens, emperors. Vitoria and Suarez, who were trailblazers of human
rights (cf. Mark Weston Janis, A Sampler of Religious Experiences in
International Law, in: 22 Mississippi College Law Review (2003), pp.
233-238, at p. 235) and international law as a whole (ibid. pp. 234 et
seq.), based their discoveries on faith-based (in their case, Catholic)
sources (ibid., p. 235), and also Grotius work was not disconnected
from religion (ibid., p. 235), as was the work of later scholars (ibid., p.
236). Then states took over core functions in international relations,
leading to this dimension to be fairly forgotten. But even though
states remain the key actors on the international legal stage, today
individuals play a much bigger role. This is reflected in the
development of both international human rights law and international
criminal law in the last decades. There is no reason why Natural law
should be less valid as a legal argument than it was back then. The

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Enlightenment might have changed the majoritys view on religion but


the argument of Natural law is as strong as it used to be but the newfound role of the individual justifies a look at Natural Law again when
trying to understand rights and obligations under international law. As
national, international, supranational and transnational law evolves
into a multifaceted global law, Natural Law will have a role to play on
a global scale.

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Fighting Ebola: Immigration Law, Quarantines and Human


Rights
The 2014/2015 Ebola outbreak has cost tens of thousands of lives and
has led to fear around the world. States have taken different
measures to prevent the spread of Ebola, e.g. Australia has
temporarily halted the issuing of new vise for applicants from the
most affected countries. Elsewhere quarantines of suspected virus In
this brief the human rights situation in particular from the perspective
of returning aid workers will be highlighted.
The Ebola crisis has been one of the major news stories of 2014 but in
early 2015 it almost seems to have dropped out of the public
consciousness. That the crisis is out of the news does not mean that it
is over far from it. As of late January 2015, more than 22,000
persons had been infected and almost 9,000 have already died from
it(1) and scientists emphasize that the virus is mutating quickly.(2)
While the rate of new infections seems to be going down,(3) this still
means that new persons get infected with the disease every day.
While there have been some cases outside West Africa, the epidemic
has been regional. Some states have gone to extreme lengths to limit
the risk of infected persons entering their territory and to prevent the
spread of the disease once it had been diagnosed by a person in
country. In addition to medical measures this also included legal
measures, which at times were not uncontroversial. Among these
states is Australia.
The controversy surrounding the decision by Australia to put a stop on
the issuing of temporary visas for persons from countries affected by
Ebola(4) and a quarantine debate in the United States have led to
controversy and to a court order on 31 October 2014.(5) There can be
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cases in which a quarantine can be justified under international


human rights law(6) if there are medical reasons for the quarantine.
The law has to take into account new scientific knowledge and its
application must not be guided by paranoia.
While it is hard to judge the decision by the Australian government
because without the information which are available to the Australian
government and which led to this decision, in principle states are of
course free to decide who gets to enter their country and who not.
However, fear should not lead to destroying the benefits of
globalization, such as freer travel. Governments have a positive
obligation to take responsible measures which protect public health
but also respect the human rights of patients and those who are
suspected of being infected. Keeping in mind that it is possible to test
for Ebola and that, as far as the disease is understood today, it is
necessary for a patient to show symptoms in order to be infectious
(although contact with corpses of deceased Ebola victims is blamed
for a large number of infections(7) and according to the World Health
Organization sperm of former Ebola patients remains infections for
some seven weeks after the patient has recovered from Ebola(8))
requiring a doctors certificate to be Ebola free would provide a less
intrusive solution which would lead to the same result but would not
ban travel outright.
Also quarantining e.g. foreign humanitarian workers who return from
the countries most affected by Ebola raises serious issues.
Humanitarian workers who return to their home countries should not
be treated by criminals and while governments have the duty to
protect public health, any such measures have to be based on science
rather than panic. It has to be kept in mind that the current Ebola
outbreak is unprecedented and that knowledge about the disease is
still gained every day. This is a global health problem which needs
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rational solutions, based on science, not based on fears or


discrimination. Many local volunteers in the West African countries
most affected by Ebola have suffered from discrimination e.g. from
their landlords, neighbors and even family members. Such behavior is
unacceptable. Without the work of people who risk their lives to care
for others, including proving as dignified a burial as possible under
the circumstances, the situation in the affected countries would be
even more dire than it is already. There must not be any
stigmatization of Ebola survivors or of health care workers.
At this time, while some countries are sending professionals who in
one way or the other are employed by the state, including members
of the armed forces, such as the US forces operating in Liberia, the
brunt of the burden is borne by civilian volunteers, such as those who
serve with the non-governmental organization Doctors Without
Borders (Mdecins sans frontires, MSF). While the international
community was late in reacting to Ebola, concerted efforts will make it
possible to limit the spread of the disease. This, however, will require
a continued international effort to combat ebola and to help the
people affected no matter where they come from.
Those who risk their lives in the fight against Ebola, whoever they are,
local staff, volunteers with MSF or other organizations, the American
soldiers, the doctors from Cuba, and many more who will never make
it to the news, the people who transport the bodies of the dead,
priests, nurses, all of them, are heroes and should be treated
accordingly. Courts around the world have outlawed discrimination
based on a persons health status, although the protection of public
health is of course possible. What would hardly be compatible with
human rights obligations in many if not most countries would be
restrictions of human rights which are grossly disproportionate and

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unnecessary, such as quarantining persons who are known not to be


infected and who have tested negative after the incubation period.
Sometimes quarantine will be medically necessary, but that does not
mean treating people like suspected criminals. The human rights and
human dignity of everybody has to be protected, even if it is
medically necessary to take measures to protect public health. While
decisions are to be made by democratically legitimized authorities
and democracy must not be given up in favor of expertocracy,
decision-makers should listen to medical experts and gain a better
understanding of Ebola.
Sources:
(1) Tulip Mazumdar, Ebola outbreak: Virus mutating, scientists warn,
29 January 2015, http://www.bbc.com/news/health-31019097 (all
websites last visited 30 January 2015).
(2) Ibid.
(3) Ibid.
(4) No author named, Federal Government to stop processing visa
applications from countries affected by Ebola, 27 October 2014,
http://www.abc.net.au/news/2014-10-27/government-visaapplilcations-ebola/5845048.
(5) Maine District Court, Mayhew v. Hickox, CV-2014-26, Order of 31
October 2014,
http://www.courts.maine.gov/news_reference/high_profile/hickox/order
_pending_hearing.pdf.

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(6) Stefan Kirchner, Ebola, Human Rights and Health Discrimination,


JURIST, 20 October 2014, http://jurist.org/forum/2014/10/stefankirchner-health-rights.php.
(7) On safe burial methods see World Health Organization, Use Safe
Burial Practices,
http://www.who.int/csr/resources/publications/ebola/whoemcesr982se
c7-9.pdf.
(8) World Health Organization, Ebola virus disease, Fact sheet No.
103, http://www.who.int/mediacentre/factsheets/fs103/en/.

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Cross-Border Environmental Human Rights Litigation as a


Service
As a long established type of enterprise which is not merely a
business but represents a free profession which serves the public, law
firms are easily overlooked when thinking about entrepreneurship. In
recent years, small, so called boutique, law firms have emerged as
important players in their respective small niches. A few law firms
across Europe specialize in human rights law. But human rights law
poses a serious challenge for both lawyers and clients.
From a purely economic perspective, lawyers cannot expect the same
profit as for example in corporate law cases, although the amount of
work on a major human rights case can easily be compared to
business law cases. But law firms are not merely profit-oriented
companies and many cases handled by lawyers are funded by legal
aid schemes. In so far, human rights law is not necessarily different
from other fields of law, although connections to e.g. asylum law hint
in an anecdote-based way at an increased likelihood of clients
being unable to pay for legal services, although this is by no means a
general observation. It is, however, a noticeable factor for new
entrants to the field.
The more significant challenge is legal in nature. This is particularly
the case when it comes to cases which involve several countries.
International Environmental Law has its origins in a case in which
pollution caused in one country had an effect in an other country and
this scenario remains relevant today. Right now there are fears that
the Tana River, which forms the border between Finland and Norway,
will be polluted if a proposed diamond mine in Finlands northernmost
municipality, Utsjoki, will be permitted. An other example for cross-

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border environmental threats are nuclear power plants, many of


which are located near international borders. In the event of a
disaster, neighboring states will likely be affected as well, although
the residents of these states will face severe obstacles when it comes
to challenging permits for nuclear power plants in the courts of the
state where the (potential) plant is (to be) located. While the Nordic
countries have made provisions for cross-border litigation under the
Nordic Environmental Protection Convention (NEPC), the situation is
significantly less favorable to potential plaintiffs elsewhere.
The European Convention on Human Rights (ECHR), on the other
hand allows everybody who, for the purposes of a case, is under the
jurisdiction of a state which does not necessarily require residing in
the state in question to sue that state in the European Court of
Human Rights (ECtHR) in Strasbourg. The ECtHR, however, has so far
been fairly reluctant to accept environmental rights within the
framework of the ECHR, in particular within the framework of the
already far-reaching right to private life under Article 8 ECHR. But
the European Court of Human Rights so far has been reluctant to
recognize a right to a healthy environment, although it seems that
there is an opening in that direction.This shows that there is a need
for consultation and litigation services. This niche, however, is very
small and requires highly qualified lawyers who are conversant not
only in the languages but also in the legal cultures of several
countries. In a European Union which is supposed to grow together,
this is a market in which attorneys from the Nordic countries could
play an important role in the future, building on top of experiences
already made in the Nordic context.
International Environmental Human Rights Litigation is a possible way
to safeguard the rights of clients. This is particularly so in the Nordic

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countries. It does, however, require significant commitment to quality


and in depth-knowledge not only of national legal systems but also
and maybe even more importantly international law. Taking this into
account, environmental human rights practitioners who are also
capable of working on cross-border cases have an economic future
and can contribute to rising environmental standards across the
board.

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Protecting Everybodys Human Rights - A Look at the Christian


Origins of European Integration
If we want to take human rights seriously, we have to apply them to
the weakest of all humans, too. The Republic of Ireland is already
doing so, thanks to the values enshrined in the Irish Constitution
which in turn are based on the faith of the majority of the people of
the Republic of Ireland. At a time when faith plays a greater role again
in the lives of many while the majority in Europe has surrendered to a
culture of moral relativism, the impact of religion and is crucial in
ensuring the effective enforcement of human rights law. Any
convention, in fact any legal rule, is at risk of becoming worthless
words on paper, and might even fall into desuetudo, if the societies to
which it is meant to apply is diverting too far from the values on
which the legal rule in question is based. In A, B and C v. Ireland, the
European Court has done an important step in turning back the tide.
To say the truth is not always popular and in times like these it is
often also counter-cultural. In the case of the right to life of the
unborn, the continued stance of the people of Ireland has made it
easier to do so everywhere where the ECHR applies.(1) From Svalbard
to the South Sandwich Islands, from French Guiana to Russias Far
East, from Greenland to French Polynesia, unborn children are a little
closer to being protected against abortion because of the laws of the
people of Ireland and the wisdom of the judges in Strasbourg. The
battle against abortion is far from won, but the Court in Strasbourg
has denied pro-abortion activists the European equivalent to Roe v.
Wade(2) they might have hoped for and has created an option to put
the abortion legislation of other states before the Court. Along with
the reversal brought by the ECtHRs Grand Chambers 2011 judgment
in Lautsi v. Italy,(3) which overturned a controversial 2009 judgment
against Italy, requiring the predominantly Catholic country to remove

Page 25 of 34

crucifixes from classrooms in public schools,(4) the judgment in A, B


and C v. Ireland is a reminder of the fact that the religious roots of
Europe are still a force to be reckoned with. In particular the Catholic
faith has long played a role in shaping the united Europe, even though
the European organizations themselves are neutral in questions
concerning religion: Although the official explanation issued at the
adoption of the European flag does not mention it,(5) it is believed by
many that the symbolism of the twelve stars in the European flag
which was first used by the Council of Europe and later by the
European Union, has its roots in the Catholic faith of its designer,
Arsne Heitz,(6) and Paul Michel Gabriel Lvy,(7) who had been the
head of the Council of Europes head of the Department of Culture at
the time.(8) In fact, Heitz later explained to have been influenced by
the passage in the book of Revelation,(9) also known as the
Apocalypse, when designing the flag.(10) The flag of the Council of
Europe was adopted on the 8 December 1955.(11) On 8 December,
the

Catholic

Church

celebrates

the

Feast

of

the

Immaculate

Conception of the Blessed Virgin Mary.(12) In the following year, a


stained-glass window was donated by the Council of Europe to the
Strasbourg

Cathedral

which

features

the

twelve

stars

in

the

configuration used by the Council of Europe, that is, twelve fivepointed stars, set like the hour-numbers on a clock, all stars pointing
upward rather than the in all likelihood more commonly seen outwardpointing set of stars.(13) Although potentially not much more than
anecdotal, this symbolism also is reflective of the values of the united
Europe. While the story of the creation of the European flag might be
disregarded by some as irrelevant and might be interpreted as a
divine sign by others, much more important than this symbolism and
its interpretation is that also legal institutions are not devoid of all
religiously motivated values and the law they apply has not been
created in a vacuum without any influences. One of these influences,

Page 26 of 34

and an important one at that, has been religion. In the case of Ireland,
the religious convictions of one people, by leading to the ECtHRs
ruling that the right to private life under Art. 8 (1) ECHR does not
entail a right to abortion, might have started to change the laws in
many countries, thus saving the lives of millions.
Sources:
(1) A good overview is provided at no author named Territorial scope
of European Convention on Human Rights, in: Wikipedia, available
online

at

<http://en.wikipedia.org/wiki

/Territorial_scope_of_European_Convention_on_Human_Rights>

(last

visited 14 November 2011).


(2) S. K. Calt, A., B. & C. v. Ireland: Europes Roe v. Wade?, in: 14
Lewis & Clark Law Review (2010), pp. 1189 et seq. A similar
terminology is also used by E. Finney Shifting to a European Roe v.
Wade: Should Judicial Activism create an international right to
abortion with A., B. and C. v. Ireland?, in: 72 University of Pittsburgh
Law Review (2010), pp. 389 et seq., it has to be noted, though, that
Finney is opposed to a right to abortion (ibid., p. 430).
(3) ECtHR Lautsi v. Italy, Application No. 30814/06, Judgment of 18
March 2011.
(4) ECtHR Lautsi v. Italy, Application No. 30814/06, Judgment of 3
November 2009.
(5) Resolution (55) 32 adopted by the Committee of Ministers of the
Council of Europe (8 December 1955).

Page 27 of 34

(6) No author named Arsne Heitz, in: Wikipedia, available online at


<http://en.wikipedia.org /wiki/Ars%C3%A8ne_Heitz> (last visited 24
November 2011).
(7) No author named Paul Michel Gabriel Levy, in: Wikipedia,
available

online

at

<http://en.wikipedia.org/wiki/Paul_Michel_Gabriel_Levy> (last visited


24 November 2011).
(8) Ibid.
(9) Cf. Revelation 12:1.
(10) Charlemagne Real politics, at last?, in: The Economist, 28
October

2004,

<http://www.economist.com/printedition/PrinterFriendly.cfm?
Story_ID=3332056> (last visited 24 November 2011).
(11) A. Uwhaan Maria Europea : histoire du drapeau europen, in:
LEtre

persienne,

20

September

<http://sartorius.blogs.lalibre.be/archive/2008/09/19/histoire-dudrapeau-europeen.html> (last visited 24 November 2011).


(12) Ibid.

Page 28 of 34

2008,

Reforming the Human Rights Architecture of the Americas?


President Correa of Ecuador has suggested the creation of a new
human rights framework outside the OAS as he sees the OAS as being
dominated by the United States. While this might fit with his political
views, an observation from the other two regional human rights
systems, in Europe and Africa, suggests that this is not absolutely
necessary in order to achieve a decent protection of human rights on
the regional level.
Although

things

seems

to

be

getting

better

slowly,

regional

integration in the Americas is still very fragmented, while the existing


human rights framework transcends the smaller economic blocks
which exist in the Americas. In this sense, the OAS is the Americas
equivalent not to the EU but to the Council of Europe and not to, e.g.
ECOWAS but to the African Union. Both in Europe and Africa it is the
larger regional body which is in charge of human rights. Where the
human rights systems in the three continents have shortcomings it is
because of a lack of implementation, not because of different
cultures. The existing frameworks allow for cultural differences
without sacrificing human rights for notions of cultural relativism
which can serve as a cover under which human rights might be
violated. The Americas dont necessarily need new institutions, they
need strong institutions and, most importantly, a true commitment to
human rights.
In addition, I believe that the existing institutions do a good job, or at
least as good a job as the states let them do. What might be helpful
for the Americas is to develop the existing system further, and in
doing so, shared cultures might indeed have a role to play in
motivating states to cooperate better (although this seems to have

Page 29 of 34

worked not so well yet in economic integration). If, however, some


states were to hold others back when it comes to safeguarding human
rights, then a new system might be considered. More pressing, right
now, are the massive human rights violations suffered by many
people in the Americas, with the violence in Honduras, the drug war in
Mexico, the lack of freedom in Venezuela, the poverty in many parts
of the continent, to name just a few examples. What is necessary is a
true culture of human rights and of mutual respect.

Page 30 of 34

Positive Obligations of States to prevent Human Rights


Violations
The positive dimension of human rights obligations is overlooked far
too often. While human rights are not meant to serve as tools to fulfill
every personal desire, too frequently are states guilty of violating
human rights by doing nothing and thereby allowing human rights
violations by non-state actors.
The Inter-American Court of Human Rights has faulted Colombia over
the forced disappearance and extrajudicial killing of Carlos Horacio
Urn Rojas and the disappearances of Carlos Augusto Rodrguez Vera,
Irma Franco Pineda, Cristina del Pilar Guarn Corts, DavidSuspes
Celis, Bernardo Beltrn Hernndez, Hctor Jaime Beltrn Fuentes,
Gloria Stella Lizarazo Figueroa, Luz Mary Portela Len, Lucy Amparo
Oviedo Bonilla and Gloria Anzola de Lanao. By failing to prevent and
to effectively investigate disappearances, Colombia has violated the
right to life and other fundamental rights. The recent findings by the
Inter-American

Court

of

Human

Rights

highlight

the

positive

dimension of states human rights obligations. In particular in


situations in which human rights violations are committed by nonstate actors, as it is currently the case in several Latin American
nations, the state has a positive duty, which correlates with a human
right of the individual concerned, to provide adequate protection. In
the case recently decided in San Jose, Colombia had failed to do so.
The second case is still pending at the European Court of Human
Rights and concerns domestic violence and police inaction. Even
though the Istanbul Convention entered into force earlier this year,
violence against women remains an important human rights problem.

Page 31 of 34

The 28 November issue of the Europische Grundrechte-Zeitschrift,


the leading German-language scientific publication on human rights in
the European Context, has a short text (EuGRZ 2014, 660) on a case
which is currently pending at the European Court of Human Rights.
The case, Halime Kl v Turkey, (Application no. 63034/11) concerns
the case of a woman the applicants daughter who had not only
been beaten repeatedly but who actually had gone to court several
times between July and October 2008 and who had won three
separate court orders against her husband, which required him to
move out of the shared home and to refrain from approaching his
wife, the home or her place of work. A few months later, the
applicants daughter was dead, murdered by her husband, who then
took his own life. Only a few days earlier had she sought help from
the authorities as she had feared for her life. The court orders had
been ignored by her husband as they had never been enforced
effectively. She had not been provided a place in a shelter for abused
women as she had seven children. The applicant claims that by failing
to protect her daughter, Turkey had violated her human rights. The
case has been communicated to Turkey a bit over a year ago but is
still pending in Strasbourg. There have been similar cases on inaction
by authorities before in different international fora and the case
highlights not only the continued need for better protection of the
rights of women, it also shows that the idea of human rights
obligations as being primarily negative in nature, meaning that the
state is obliged from taking positive action which violates human
rights, can make officials blind for the positive dimension of human
rights obligations, which means that the state has to take action to
protect human rights also against violations by non-state actors.

Page 32 of 34

Beyond Positivism: A Choice for Human Rights


Almost 25 years ago, in January 1980, Seppo Laakso finished his book
about the three-dimensionality of law and legal thinking.(1) In this
context, he also made reference to scandinavian legal realism
(skandinavische[r]

Rechtsrealismus).(2)

Laakso

described

this

realism as being based on Wertnihilismus (value nihilism).(3)


Based on this understanding, there would not be any place for values
in law(4) and law would not be a science.(5) While Laakso deals with
the latter charge,(6) in a time of seemingly ever greater technological
possibilities, the absence of values in law provides the groundwork for
risks to fundamental human rights, including the right to life.
Values do have a place in law, including in international law,(7) and
have indeed long influenced law-making on the national and
international level. These values can also be religiously motivated.(8)
The 20th century has seen several dictatorships in which law had
been perverted into a tool for the denial of even the most basic
human rights. Law which is not based on values which are positive
towards human rights is at risk of being abused in the same way as
well. Positivism has been discredited in the 20th century. With the
Universal Declaration of Human Rights after World War II and the
development of international human rights law since then, the
international community has made a choice: for human rights.
Sources:
(1) Seppo Laakso, ber die Dreidimensionalitt des Rechts und des
juristischen Denkens, University of Tampere, Tampere, 2/1980, ISBN:
951-44-0964-7).

Page 33 of 34

(2) Ibid., pp. 97 et seq.


(3) Ibid., p. 97.
(4) Ibid., pp. 97 et seq.
(5) Ibid., p. 98.
(6) Ibid., pp. 99 et seq.
(7) Stefan Kirchner, Relative Normativity and the Constitutional
Dimension of International Law: A Place for Values in the International
Legal System ?, in: 5 German Law Journal (2004), pp. 47-64.
(8) Stefan Kirchner, Turning Religious Values into Law Through the
Language of Human Rights: Legal Ethics and the Right to Life Under
the European Convention on Human Rights, in: 5 Baltic Journal of Law
and Politics (2012), Issue 1, pp. 70-98.

Page 34 of 34

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