Search result: 174 articles

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Article

Access_open A Comparative Perspective on the Protection of Hate Crime Victims in the European Union

New Developments in Criminal Procedures in the EU Member States

Journal Erasmus Law Review, Issue 3 2021
Keywords hate crime, victims, victim rights, procedural justice, EU Member States, criminal procedure
Authors Suzan van der Aa, Robin Hofmann and Jacques Claessen
AbstractAuthor's information

    Hate crime victims involved in a criminal procedure experience difficulties that are different from problems encountered by other victims. In trying to meet the specific procedural needs of hate crime victims many EU Member States have introduced protective measures and services in criminal proceedings, but the adopted approaches are widely disparate. By reporting the results of an EU-wide comparative survey into hate crime victims within national criminal procedures the authors aim to: (1) make an inventory of the national (legal) definitions of hate crime and the protection measures available (on paper) for hate crime victims; and (2) critically discuss certain national choices, inter alia by juxtaposing the procedural measures to the procedural needs of hate crime victims to see if there are any lacunae from a victimological perspective. The authors conclude that the Member States should consider expanding their current corpus of protection measures in order to address some of the victims’ most urgent needs.


Suzan van der Aa
Suzan van der Aa, PhD, is Professor of Criminal Law at Maastricht University, the Netherlands.

Robin Hofmann
Robin Hofmann is Assistant Professor at Maastricht University, the Netherlands.

Jacques Claessen
Jacques Claessen is Professor at Maastricht University, the Netherands.
Article

Access_open Victims’ Fundamental Need for Safety and Privacy and the Role of Legislation and Empirical Evidence

Journal Erasmus Law Review, Issue 3 2021
Keywords needs for safety, victim impact statements, legislation, Empirical Legal Studies, privacy protection
Authors Marijke Malsch
AbstractAuthor's information

    Various laws, guidelines and other types of regulation have been created that introduced new rights worldwide for victims of crime. Many of these rights focus on active victims who wish to step into the open and to orally express their views and experiences in court. Rights and wishes to remain in the background and to preserve one’s privacy received less attention. This article focuses primarily on the wishes of victims that reveal their intention to not play an active role in the criminal process, and on victims who fear an invasion of their safety and privacy. According to the literature, such wishes and needs can be considered to be fundamental. The article questions the empirical basis for the present victim legislation: are the new laws that have been created over the decades founded on empirically established victim needs, or on presumed victim needs? The article concludes with a plea for a more extensive use of empirical findings that shed light on victim wishes in the legislation and the criminal process.


Marijke Malsch
Marijke Malsch is Professor of Empirical Legal Studies at Open Universiteit Netherlands.
Article

Access_open Is It All That Fishy? A Critical Review of the Concerns Surrounding Third Party Litigation Funding in Europe

Journal Erasmus Law Review, Issue 4 2021
Keywords access to justice, third-party litigation fund, collective redress, Europe, conflicts of interest
Authors Adrian Cordina
AbstractAuthor's information

    Virtually all major jurisdictions worldwide, including those in Europe, have been facing constrained budgets in civil justice and increasing litigation volume, delays, complexity and costs in the last few decades. This makes it difficult, or impossible, for certain individuals and entities to pursue meritorious claims, be it individually or collectively, posing a significant challenge to access to justice. With third-party funding (TPF) of litigation frequently touted as a promising private funding solution to this problem, this article explores the question of how and why the proliferation of TPF has been viewed with a considerable degree of caution in Europe, and questions to what extent this caution is warranted. The scale of the civil justice crisis in Europe, the shift from public to private funding and the purported benefits of TPF are first briefly investigated. The article then proceeds to critically examine, including from a law-and-economics perspective, the main sources of concern leading to the scepticism shown towards TPF in Europe, which is still largely unregulated. These sources are the commodification of justice, conflicts of interest and funder capital inadequacy. Particular reference is made to the regulatory frameworks of the jurisdictions of England and Wales, the Netherlands and Germany in Europe, and at the European Union level, to the Representative Actions Directive. It concludes by restating the potential benefits and complexity of this industry and the importance of distinguishing and analysing the arguments most commonly raised against it in the literature, policy and jurisprudence.


Adrian Cordina
Adrian Cordina, LLM, is a PhD candidate at the department of Private Law of the Erasmus School of Law, Erasmus University Rotterdam, the Netherlands.
Article

Access_open Cyprus: Affordability and Accessibility of the Civil Justice System

Journal Erasmus Law Review, Issue 4 2021
Keywords Cyprus, accessibility, affordability, costs, legal aid, civil procedure
Authors Nicolas Kyriakides, Iphigeneia Fisentzou and Nayia Christodoulou
AbstractAuthor's information

    In determining the accessibility and affordability of the civil justice system, this article will evaluate the costs regime and litigation funding available in Cyprus in light of the recent proposed reforms to the civil procedure rules. At the time of writing, civil cases in Cyprus are ranked according to their value and governed by fixed costs rules depending on the scale of the claim. Litigation funding, such as legal aid, is available only if the civil case involves the infringement of human rights and is granted under specific circumstances. Furthermore, third-party funding and contingency fees are practically unheard of, as they remain unregulated by the Cypriot legislation. Third-party litigation funding has only recently been examined by the national courts albeit in the context of an application for the setting aside of an order enforcing a foreign judgment. Is the Cypriot civil justice system affordable and thus accessible? Does limited access to legal aid and third-party funding result in violation of the right to access to justice? Will the civil justice reform improve accessibility for litigants? A holistic answer will be achieved by drawing comparisons with costs and litigation funding practices in England and Wales, as well as in Germany, both of which are leading jurisdictions in Europe and especially influential owing to their geopolitical history with the island, representing the common law and civil law systems, respectively.


Nicolas Kyriakides
Nicolas Kyriakides, PhD, teaches at the University of Nicosia School of Humanities, Social Sciences and Law in Cyprus.

Iphigeneia Fisentzou
Iphigenia Fisentzou is a Lawyer at Chrysses Demetriades & Co LLC in Cyprus.

Nayia Christodoulou
Nayia Christodoulou is a Researcher at the University of Cyprus: Panepistemio Kyprou.
Article

Access_open Counting the Cost of Enlarging the Role of ADR in Civil Justice

Journal Erasmus Law Review, Issue 4 2021
Keywords access to justice, alternative dispute resolution, mandatory ADR, cost sanctions, proportionality
Authors Dorcas Quek Anderson
AbstractAuthor's information

    Singapore, a common law jurisdiction, recently implemented radical changes to its civil procedure regime in order to ensure affordability of the civil justice process. The reforms include the imposition of a duty on parties to consider alternative dispute resolution (ADR) before commencing and during legal proceedings and the empowerment of courts to order the parties to use ADR. This paper discusses the implications of increasing the justice system’s emphasis on the use of ADR with reference to Singapore’s civil justice reforms and comparable reforms in the United Kingdom. It demonstrates how the historical inclusion of ADR in the justice system has shaped the concept of access to justice, resulting in an emphasis not only on cost-effective justice but also on tailoring the characteristics of each case to the appropriate dispute resolution process. An excessive association of ADR with cost savings will thus neglect other significant dimensions of access to justice. The paper argues that the question of whether ADR is an appropriate process for each dispute assumes greater complexity as both the parties and the court have to engage in detailed cost-benefit analyses to determine whether any refusal to attempt ADR or order to use ADR is justified. Cost concerns also have to be delicately balanced with other factors relevant to determining the appropriate dispute resolution process. The author proposes adopting a more nuanced approach that does not deem mediation as automatically decreasing the overall cost of justice and recognises the importance of encouraging appropriate dispute resolution.


Dorcas Quek Anderson
Dorcas Quek Anderson, LL.M., is an Assistant Professor, Singapore Management University.
Article

Access_open In Data We Trust? Quantifying the Costs of Adjudication in the EU Justice Scoreboard

Journal Erasmus Law Review, Issue 4 2021
Keywords access to justice, costs of justice, EU Justice Scoreboard, empirical legal research
Authors Adriani Dori
AbstractAuthor's information

    Affordable and timely judicial proceedings by independent courts are essential for an effective justice system. They are also a precondition for the protection of the rule of law in the EU and for an integrated internal market. Among the tools the European Commission adopts in this field, the EU Justice Scoreboard is key to understanding the empirical basis of the European judicial policies. Created in 2013, it provides annual data on efficiency, quality and independence of member states’ courts. The Scoreboard considers costly judicial proceedings as an obstacle to access to justice. It accordingly benchmarks member states’ performance with various indicators. In the Commission’s view, different national legal traditions should not prevent comparative assessment of member state judicial systems. However, the idiosyncrasies of national systems and the heterogeneity of national judicial statistics inevitably affect this empirical monitoring exercise. A closer look at the Scoreboard data shows that adjudication costs cannot be evaluated through quantitative metrics without contextualisation. This article focuses on the Scoreboard data on judicial costs, from both the supply and the demand side of judicial services. It critically reviews the fact-finding process that supports the preparation of the Scoreboard as well as the data this document displays. In so doing, it tests whether the Scoreboard conveys reliable and comparable information. This analysis is all the more important as the Scoreboard often supports academic analyses on the performance of justice and policy proposals by regulators and lawmakers.


Adriani Dori
Adriani Dori, LL.M., is an Academic Researcher at the Erasmus School of Law, Erasmus University Rotterdam, the Netherlands.
Article

Access_open The Rise and Regulation of Litigation Funding in Australian Class Actions

Journal Erasmus Law Review, Issue 4 2021
Keywords Australia, litigation funding, class action, regulation
Authors Michael Legg
AbstractAuthor's information

    Litigation funding has become synonymous with class action litigation in Australia with third-party funders being a key source of financing. This article addresses the rise and regulation of litigation funding in Australia through three pathways: judicial oversight of litigation funding, government regulation of litigation funding and competition from lawyers. Initially, litigation funding was subject to minimal regulation in an effort to promote access to justice. However, concerns about the size of profits made by funders which in turn impacted Australian businesses and reduced the compensation available for group members saw the adoption of a more detailed and restrictive regulatory approach. Further regulation has been proposed and criticised for hampering funding of class actions. This article concludes with a middle or compromise position that recommends a base level of regulation and empowers the courts to act as a check on excessive fees.


Michael Legg
Michael Legg, PhD, is Professor at the Faculty of Law & Justice of the University of New South Wales, Australia.
Article

Access_open Legal Expenses Insurance and the Future of Effective Litigation Funding

Journal Erasmus Law Review, Issue 4 2021
Keywords litigation funding, legal expenses insurance, mandatory insurance
Authors John Sorabji
AbstractAuthor's information

    For nearly forty years, from the end of the 1940s, the primary form of litigation funding in England and Wales was civil legal aid. From the start of the 1980s, however, there has been a steady withdrawal from that model. Successive governments have reduced the amount of public funds committed to civil legal aid, while also removing significant areas of law from its scope. In tandem with the winnowing away of legal aid has been the promotion of a number of forms of private litigation funding through statutory reform and common law developments. One form of funding has not, however, been subject to promotion by either the government or the judiciary: before-the-event legal expenses insurance. This article looks at the potential role that such legal expenses insurance could have as the primary form of litigation funding in the future.


John Sorabji
John Sorabji, DPhil, is a Lecturer at the Faculty of Law, University College London.

Masood Ahmed
Masood Ahmed is Associate Professor at the University of Leicester, UK.

Xandra Kramer
Xandra Kramer is Professor at the Erasmus University Rotterdam and at Utrecht University, the Netherlands.
Article

Access_open Money, Blackmail and Lawsuits

Revisiting Coventry v. Lawrence and the Principle of (In)equality of Arms

Journal Erasmus Law Review, Issue 4 2021
Keywords right to a fair trial, access to justice, equality of arms, conditional fee agreement, after the event insurance
Authors Eduardo Silva de Freitas
AbstractAuthor's information

    The right to a fair trial under Article 6 ECHR (European Convention on Human Rights) provides one of the procedural guarantees of access to justice. One of the elements on which access to justice under Article 6 ECHR depends is party resources. The concern for equality of arms is that both parties should be able to effectively argue their case before a court, not being impeded by a lack of resources that undermines the tools of their pleading. Such an equality is subject to case-specific analysis. The Lawrence ruling is a ruling on the compatibility of the regime of recoverability of conditional fee agreement (CFA) additional liabilities under the Access to Justice Act 1999 with Article 6 ECHR. The majority in the UK Supreme Court (UKSC) ruled, under a proportionality test, that there was no infringement of Article 6 ECHR because the introduction of the recoverability of CFA additional liabilities was a necessary measure for England to adopt in the pursuit of access to justice under its margin of appreciation. In this article, I will argue that a more holistic view of the procedural guarantees provided for by Article 6 ECHR is called for to properly assess its infringement, considering mainly the principle of equality of arms. The aim of this article is, therefore, to investigate how the principle of equality of arms should have informed the UKSC’s decision in Lawrence.


Eduardo Silva de Freitas
Eduardo Silva de Freitas, LLM, is a PhD candidate at Erasmus University Rotterdam, as part of the NWO-funded Vici project ‘Affordable Access to Justice: Towards Sustainable Cost and Funding Mechanisms for Civil Litigation in Europe’ (No. VI.C.191.082). See www.euciviljustice.eu.
Article

Access_open The Common Law Remedy of Habeas Corpus Through the Prism of a Twelve-Point Construct

Journal Erasmus Law Review, Issue 2 2021
Keywords Habeas corpus, common law, detainee, consitution, liberty
Authors Chuks Okpaluba and Anthony Nwafor
AbstractAuthor's information

    Long before the coming of the Bill of Rights in written Constitutions, the common law has had the greatest regard for the personal liberty of the individual. In order to safeguard that liberty, the remedy of habeas corpus was always available to persons deprived of their liberty unlawfully. This ancient writ has been incorporated into the modern Constitution as a fundamental right and enforceable as other rights protected by virtue of their entrenchment in those Constitutions. This article aims to bring together the various understanding of habeas corpus at common law and the principles governing the writ in common law jurisdictions. The discussion is approached through a twelve-point construct thus providing a brief conspectus of the subject matter, such that one could have a better understanding of the subject as applied in most common law jurisdictions.


Chuks Okpaluba
Chuks Okpaluba, LLB LLM (London), PhD (West Indies), is a Research Fellow at the Free State Centre for Human Rights, University of the Free State, South Africa. Email: okpaluba@mweb.co.za.

Anthony Nwafor
Anthony O. Nwafor, LLB, LLM, (Nigeria), PhD (UniJos), BL, is Professor at the School of Law, University of Venda, South Africa. Email: Anthony.Nwafor@univen.ac.za.
Article

Access_open The Role of the Vienna Rules in the Interpretation of the ECHR

A Normative Basis or a Source of Inspiration?

Journal Erasmus Law Review, Issue 2 2021
Keywords European Convention on Human Rights, European Court of Human Rights, techniques of interpretation, the Vienna Convention on the Law of Treaties
Authors Eszter Polgári
AbstractAuthor's information

    The interpretive techniques applied by the European Court of Human Rights are instrumental in filling the vaguely formulated rights-provisions with progressive content, and their use provoked widespread criticism. The article argues that despite the scarcity of explicit references to the Vienna Convention on the Law of Treaties, all the ECtHR’s methods and doctrines of interpretation have basis in the VCLT, and the ECtHR has not developed a competing framework. The Vienna rules are flexible enough to accommodate the interpretive rules developed in the ECHR jurisprudence, although effectiveness and evolutive interpretation is favoured – due to the unique nature of Convention – over the more traditional means of interpretation, such as textualism. Applying the VCLT as a normative framework offers unique ways of reconceptualising some of the much-contested means of interpretation in order to increase the legitimacy of the ECtHR.


Eszter Polgári
Eszter Polgári, PhD, is assistant professor at the Department of Legal Studies of the Central European University in Austria.
Article

Access_open Text-mining for Lawyers: How Machine Learning Techniques Can Advance our Understanding of Legal Discourse

Journal Erasmus Law Review, Issue 1 2021
Keywords text mining, machine learning, law, natural language processing
Authors Arthur Dyevre
AbstractAuthor's information

    Many questions facing legal scholars and practitioners can be answered only by analysing and interrogating large collections of legal documents: statutes, treaties, judicial decisions and law review articles. I survey a range of novel techniques in machine learning and natural language processing – including topic modelling, word embeddings and transfer learning – that can be applied to the large-scale investigation of legal texts


Arthur Dyevre
Arthur Dyevre is Professor at the KU Leuven Centre for Empirical Jurisprudence, Leuven, Belgium. arthur.dyevre@kuleuven.be.
Article

Access_open Big Data Ethics: A Life Cycle Perspective

Journal Erasmus Law Review, Issue 1 2021
Keywords big data, big data analysis, data life cycle, ethics, AI
Authors Simon Vydra, Andrei Poama, Sarah Giest e.a.
AbstractAuthor's information

    The adoption of big data analysis in the legal domain is a recent but growing trend that highlights ethical concerns not just with big data analysis, as such, but also with its deployment in the legal domain. This article systematically analyses five big data use cases from the legal domain utilising a pluralistic and pragmatic mode of ethical reasoning. In each case we analyse what happens with data from its creation to its eventual archival or deletion, for which we utilise the concept of ‘data life cycle’. Despite the exploratory nature of this article and some limitations of our approach, the systematic summary we deliver depicts the five cases in detail, reinforces the idea that ethically significant issues exist across the entire big data life cycle, and facilitates understanding of how various ethical considerations interact with one another throughout the big data life cycle. Furthermore, owing to its pragmatic and pluralist nature, the approach is potentially useful for practitioners aiming to interrogate big data use cases.


Simon Vydra
Simon Vydra is a Researcher at the Institute for Public Administration, Leiden University, the Netherlands.

Andrei Poama
Andrei Poama is Assistant Professor at the Institute for Public Administration, Leiden University, the Netherlands.

Sarah Giest
Sarah Giest is Assistant Professor at the Institute for Public Administration, Leiden University, the Netherlands.

Alex Ingrams
Alex Ingrams is Assistant Professor at the Institute for Public Administration, Leiden University, the Netherlands.

Bram Klievink
Bram Klievink is Professor of Digitization and Public Policy at the Institute for Public Administration, Leiden University, the Netherlands.
Editorial

Access_open Computational Methods for Legal Analysis

The Way Forward?

Journal Erasmus Law Review, Issue 1 2021
Keywords computational legal analysis, empirical legal studies, natural language processing, machine learning
Authors Elena Kantorowicz-Reznichenko
AbstractAuthor's information

    Computational analysis can be seen as the most recent innovation in the field of Empirical Legal Studies (ELS). It concerns the use of computer science and big data tools to collect, analyse and understand the large and unstructured data, such as for instance (legal) text. Given that the text is now the object of analysis, but the methods are (largely) quantitative, it lies in the intersection between doctrinal analysis and ELS. It brings with it not only a great potential to scale up research and answer old research questions, but also to reveal uncovered patterns and address new questions. Despite a slowly growing number of legal scholars who are already applying such methods, it is underutilised in the field of law. Furthermore, given that this method comes from social and computer sciences, many legal scholars are not even aware of its existence and potential. Therefore, the purpose of this special issue is not only to introduce these methods to lawyers and discuss possibilities of their application, but also to pay special attention to the challenges, with a specific emphasis on the ethical issues arising from using ‘big data’ and the challenge of building capacity to use such methods in law schools. This editorial briefly explains some of the methods which belong to the new movement of Computational Legal Analysis and provides examples of their application. It then introduces those articles included in this special issue. Finally, it provides a personal note on the way forward for lawyers within the movement of Computational Legal Analysis


Elena Kantorowicz-Reznichenko
Elena Kantorowicz-Reznichenko is Professor of Quantitative Empirical Legal Studies at the Rotterdam Institute of Law and Economics, Erasmus School of Law, Erasmus University, Rotterdam.
Article

Access_open The Right to Claim Innocence in Poland

Journal Erasmus Law Review, Issue 4 2020
Keywords wrongful convictions, right to claim innocence, reopening of criminal proceedings, miscarriage of justice, revision of final judgment
Authors Wojciech Jasiński Ph.D., habilitation and Karolina Kremens Ph.D.
AbstractAuthor's information

    Wrongful convictions and miscarriages of justice, their reasons and effects, only rarely become the subject of academic debate in Poland. This article aims at filling this gap and providing a discussion on the current challenges of mechanisms available in Polish law focused on the verification of final judgments based on innocence claims. While there are two procedures designed to move such judgment: cassation and the reopening of criminal proceedings, only the latter aims at the verification of new facts and evidence, and this work remains focused exactly on that issue. The article begins with a case study of the famous Komenda case, which resulted in a successful innocence claim, serving as a good, though rare, example of reopening a case and acquitting the convict immediately and allows for discussing the reasons that commonly stand behind wrongful convictions in Poland. Furthermore, the article examines the innocence claim grounds as regulated in the Polish criminal procedure and their interpretation under the current case law. It also presents the procedure concerning the revision of the case. The work additionally provides the analysis of the use of innocence claim in practice, feeding on the statistical data and explaining tendencies in application for revision of a case. It also presents the efforts of the Polish Ombudsman and NGOs to raise public awareness in that field. The final conclusions address the main challenges that the Polish system faces concerning innocence claims and indicates the direction in which the system should go.


Wojciech Jasiński Ph.D., habilitation
Wojciech Jasiński is Assistant Professor in the Department of Criminal Procedure of the University of Wroclaw, Poland. orcid.org/0000-0002-7427-1474

Karolina Kremens Ph.D.
Karolina Kremens is Assistant Professor in the Department of Criminal Procedure of the University of Wroclaw, Poland. orcid.org/0000-0002-2132-2645
Article

Access_open Exoneration in Sweden

Is It Not about Time to Reform the Swedish Model?

Journal Erasmus Law Review, Issue 4 2020
Keywords wrongful convictions, extraordinary legal remedy, exoneration, exoneration in Sweden
Authors Dennis Martinsson
AbstractAuthor's information

    This article reviews exoneration in Sweden, with a focus on the procedure of applying for exoneration. First, it highlights some core features of Swedish criminal procedural law, necessary to understand exoneration in the Swedish context. Secondly, it outlines the possibilities in Swedish law to apply for exoneration, both in favour of a convicted person and to the disadvantage of a previously acquitted defendant. Thirdly, it identifies some challenges with the current Swedish model of administering applications for exoneration. Fourthly, it argues that the current system should be reformed by introducing into Swedish law a review committee that administers applications for exoneration.


Dennis Martinsson
Dennis Martinsson is Assistant Professor in the Department of Law of Stockholm University in Sweden.
Article

Access_open Can Non-discrimination Law Change Hearts and Minds?

Journal Erasmus Law Review, Issue 3 2020
Keywords law and society, social change, discrimination, non-discrimination law, positive action
Authors Anita Böcker
AbstractAuthor's information

    A question that has preoccupied sociolegal scholars for ages is whether law can change ‘hearts and minds’. This article explores whether non-discrimination law can create social change, and, more particularly, whether it can change attitudes and beliefs as well as external behaviour. The first part examines how sociolegal scholars have theorised about the possibility and desirability of using law as an instrument of social change. The second part discusses the findings of empirical research on the social working of various types of non-discrimination law. What conclusions can be drawn about the ability of non-discrimination law to create social change? What factors influence this ability? And can non-discrimination law change people’s hearts and minds as well as their behaviour? The research literature does not provide an unequivocal answer to the latter question. However, the overall picture emerging from the sociolegal literature is that law is generally more likely to bring about changes in external behaviour and that it can influence attitudes and beliefs only indirectly, by altering the situations in which attitudes and opinions are formed.


Anita Böcker
Anita Böcker is associate professor of Sociology of Law at Radboud University, Nijmegen.
Article

Access_open Positive State Obligations under European Law: A Tool for Achieving Substantive Equality for Sexual Minorities in Europe

Journal Erasmus Law Review, Issue 3 2020
Keywords Positive obligations, sexual minorities, sexual orientation, European law, human rights
Authors Alina Tryfonidou
AbstractAuthor's information

    This article seeks to examine the development of positive obligations under European law in the specific context of the rights of sexual minorities. It is clear that the law should respect and protect all sexualities and diverse intimate relationships without discrimination, and for this purpose it needs to ensure that sexual minorities can not only be free from state interference when expressing their sexuality in private, but that they should be given the right to express their sexuality in public and to have their intimate relationships legally recognised. In addition, sexual minorities should be protected from the actions of other individuals, when these violate their legal and fundamental human rights. Accordingly, in addition to negative obligations, European law must impose positive obligations towards sexual minorities in order to achieve substantive equality for them. The article explains that, to date, European law has imposed a number of such positive obligations; nonetheless, there is definitely scope for more. It is suggested that European law should not wait for hearts and minds to change before imposing additional positive obligations, especially since this gives the impression that the EU and the European Court of Human Rights (ECtHR) are condoning or disregarding persistent discrimination against sexual minorities.


Alina Tryfonidou
Alina Tryfonidou is Professor of Law, University of Reading.
Article

Access_open A Positive State Obligation to Counter Dehumanisation under International Human Rights Law

Journal Erasmus Law Review, Issue 3 2020
Keywords Dehumanisation, International Human Rights Law, Positive State obligations, Framework Convention for the Protection of National Minorities, International Convention on the Elimination of all forms of Racial Discrimination
Authors Stephanie Eleanor Berry
AbstractAuthor's information

    International human rights law (IHRL) was established in the aftermath of the Second World War to prevent a reoccurrence of the atrocities committed in the name of fascism. Central to this aim was the recognition that out-groups are particularly vulnerable to rights violations committed by the in-group. Yet, it is increasingly apparent that out-groups are still subject to a wide range of rights violations, including those associated with mass atrocities. These rights violations are facilitated by the dehumanisation of the out-group by the in-group. Consequently, this article argues that the creation of IHRL treaties and corresponding monitoring mechanisms should be viewed as the first step towards protecting out-groups from human rights violations. By adopting the lens of dehumanisation, this article demonstrates that if IHRL is to achieve its purpose, IHRL monitoring mechanisms must recognise the connection between dehumanisation and rights violations and develop a positive State obligation to counter dehumanisation. The four treaties explored in this article, the European Convention on Human Rights, the International Covenant on Civil and Political Rights, the Framework Convention for the Protection of National Minorities and the International Convention on the Elimination of all forms of Racial Discrimination, all establish positive State obligations to prevent hate speech and to foster tolerant societies. These obligations should, in theory, allow IHRL monitoring mechanisms to address dehumanisation. However, their interpretation of the positive State obligation to foster tolerant societies does not go far enough to counter unconscious dehumanisation and requires more detailed elaboration.


Stephanie Eleanor Berry
Stephanie Eleanor Berry is Senior Lecturer in International Human Rights Law, University of Sussex.
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